Att_4_-_BLM_Manual_6840.pdf

Form 1221-2 (June 1969)

Release

6-125

UNITED STATES

DEPARTMENT OF THE INTERIOR

BUREAU OF LAND MANAGEMENT

MANUAL TRANSMITTAL SHEET

Date

12/12/2008

Subject

6840 – Special Status Species Management

1. Explanation of Materials Transmitted: This release transmits a complete revision of

Manual 6840, the Special Status Species Management Manual for the Bureau of Land Management. This manual establishes policy for management of species listed or proposed for listing pursuant to the Endangered Species Act and Bureau sensitive species which are found on BLM-administered lands.

2. Reports Required: None

3. Materials Superseded: Manual pages superseded by this release are listed under

“REMOVE” below. No other directives are superseded.

4. Filing Instructions: File as directed below

REMOVE INSERT

All of 6840 (Rels. 6-121) 6840

(Total: 26 Sheets) (Total: 24 Sheets)

/s/ James Caswell

Director

TC-1 6840 – SPECIAL STATUS SPECIES MANAGEMENT – (Public)

Table of Contents

.01 Purpose .02 Objectives .03 Authority .04 Responsibility .05 References .06 Policy

.1 Administration of the ESA A. Section 2 (Findings, purposes, and policy) B. Section 4 (Determination of endangered species and threatened species, designation of critical habitat, and development of recovery plans) C. Section 5 (Land Acquisition) D. Section 6 (Cooperation with States)

E. Section 7 (a)(1) (Conservation Programs) F. Section 7 (a)(2) (Consultation) G. Section 9 (Prohibited Acts) H. Section 10 (Exceptions to the ESA) I. Section 11 (Penalties and Enforcement) J. Section 18 (Annual Cost Analysis by the U.S. Fish and Wildlife Service)

.2 Administration of Bureau Sensitive Species A. Designation of Bureau Sensitive Species

B. Planning C. Implementation D. Agreements, Assessments, and Cooperative Strategies for Conservation E. Management of Bureau Sensitive Species with the Oregon and California Lands Act

.3 General Cooperation for BLM Special Status Species A. Coordination and Cooperation with Tribes

B. Other Cooperation and Coordination

Glossary of Terms

BLM MANUAL Rel. 6-125 Supersedes Rel. 6-121 12/12/2008

.01 6840 – SPECIAL STATUS SPECIES MANAGEMENT – (Public)

.01 Purpose. The purpose of this manual is to provide policy and guidance for the conservation of BLM special status species and the ecosystems upon which they depend on BLM-administered lands. BLM special status species are: (1) species listed or proposed for listing under the Endangered Species Act (ESA), and (2) species requiring special management consideration to promote their conservation and reduce the likelihood and need for future listing under the ESA, which are designated as Bureau sensitive by the State Director(s). All Federal candidate species, proposed species, and delisted species in the 5 years following delisting will be conserved as Bureau sensitive species.

.02 Objectives. The objectives of the BLM special status species policy are:

A. To conserve and/or recover ESA-listed species and the ecosystems on which they depend so that ESA protections are no longer needed for these species.

B. To initiate proactive conservation measures that reduce or eliminate threats to Bureau sensitive species to minimize the likelihood of and need for listing of these species under the ESA.

.03 Authority.

A. Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.), as amended.

B. Sikes Act, Title II (16 U.S.C. 670g et seq.), as amended.

C. Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701 et seq.), as amended (FLPMA).

D. Departmental Manual 235.1.1.A, General Program Delegation, Director, Bureau of Land Management.

E. Departmental Manual 632.1.1-1.6, Endangered Species Management.

F. Secretarial Order 3206 (American Indian Tribal Rights, Federal– Tribal Trust Responsibilities, and the Endangered Species Act).

G. Information Quality Act (44 U.S.C 3504(d)(1) and 3516).

H. Oregon and California Lands Act (43 U.S.C. 1181a, et seq.).

.04 Responsibility.

A. The Director is responsible for overseeing implementation of Special Status species policies on BLM-administered lands, coordinating as needed with State Directors on select, multi-State species conservation issues, and making any

.04B 6840 – SPECIAL STATUS SPECIES MANAGEMENT – (Public) applications for project exemptions under Section 7(g) of the ESA to the Secretary of the Interior.

B. The Assistant Director for Renewable Resources and Planning is responsible for the timely development, approval, and implementation of procedures for carrying out the BLM special status species policies.

C. The Chief, Division of Fish Wildlife and Plant Conservation, is responsible for initiating and recommending policies, objectives, general procedures, and priorities relating to Bureau sensitive species, federally proposed and listed species, federally proposed and designated critical habitat, and overall coordination of the special status species policies. The Division Chief is also responsible for designating a National Program Lead whose responsibilities are:

1. Developing and maintaining up-to-date policies pertaining to management of special status species on BLM lands.

2. Developing agency budget documents pertaining to special status species management, and determining funding allocations to States.

3. Coordinating with State program leads in all phases of implementation of the Bureau special status species program.

4. Providing technical assistance and guidance to other BLM Washington Office programs to ensure proper consideration of BLM special status species matters in those programs.

5. Maintaining appropriate interactions with the headquarters of other Federal agencies and bureaus, national conservation organizations, international conservation groups, and individual authorities to advance the objectives of the BLM special status species program.

6. Maintaining a thorough knowledge of the legislation, regulations, court rulings, and litigation actions relative to Bureau sensitive species, federally proposed and listed species, and proposed and designated critical habitat, and communicating the implications of these actions to BLM decision makers and staff.

7. Working with the National Training Center and other agencies to develop training and orientation materials relevant to this policy.

D. The State Directors are responsible for:

1. Developing and implementing procedures for the conservation of special status species on BLM-administered lands within their States.

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2. Coordinating the BLM special status species conservation efforts with adjoining BLM State Offices, State and other Federal agencies, various private organizations, and BLM stakeholders.

3. Inventorying BLM lands to determine which BLM special status species occur on public lands, the condition of the populations and their habitats, and how discretionary BLM actions affect those species and their habitats.

4. Designating Bureau sensitive species within their respective jurisdictions and, at least once every 5 years, reviewing and updating the Bureau sensitive species list in coordination with State agencies that are responsible for fisheries, wildlife, and botanical resources.

5. Ensuring that when BLM engages in the planning process, land use plans and subsequent implementation-level plans identify appropriate outcomes, strategies, restoration opportunities, use restrictions, and management actions necessary to conserve and/or recover listed species, as well as provisions for the conservation of Bureau sensitive species. In particular, such plans should address any approved recovery plans and conservation agreements.

6. Ensuring that all actions comply with the ESA, its implementing regulations, and other directives associated with ESA-listed and proposed species, including compliance with Section 7 consultations and conferences with the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS).

7. Providing an annual summary of ESA-related expenditures, and other program performance and related information to the Washington Office on an as-needed basis.

8. Designating State Program Leads, whose responsibilities are to:

a. Initiate and provide technical support to other BLM personnel in the development of conservation strategies for special status species on BLM lands.

b. Monitor implementation of Bureau sensitive species activities and policies within the state, and develop state level policies as needed to ensure program objectives are met.

c. Collaborate with other program leads at the state level to ensure objectives of the BLM special status species program are integrated in those programs as appropriate.

d. Maintain a cooperative working relationship with State and Federal agencies and local conservation groups, especially their respective state agencies with authority for listed species, wildlife, fish, and plants, and the

.04D8e 6840 – SPECIAL STATUS SPECIES MANAGEMENT – (Public) regional and local offices of the FWS and NMFS.

e. Recommend funding allocations that will best achieve the objectives of this policy and track expenditures to determine if the allocated funds have been appropriately expended.

f. Recommend and develop training material to keep field and district offices current on policies and direction changes.

E. District Managers and Field Managers are responsible for implementing the BLM special status species policies and program within their area of jurisdiction by:

1. Implementing conservation strategies for BLM special status species as contained in approved recovery plans, cooperative agreements, and other instruments the BLM has cooperatively participated in the development of.

2. Conducting and maintaining current inventories of BLM special status species on BLM-administered lands.

3. Ensuring that all actions undertaken comply with the ESA, its implementing regulations, and other directives associated with ESA-listed and proposed species.

4. Ensuring that the results of formal Section 7 consultations, including mandatory terms and conditions in incidental take statements that are consistent with 50 CFR 402 regulations, are implemented and documented in the administrative record.

5. Coordinating field office activities with Federal, State, and local groups to ensure the most effective program for BLM special status species.

6. Ensuring that land use and implementation plans fully address appropriate conservation of BLM special status species.

7. Monitoring populations of Bureau special status species to determine whether management objectives are being met. Records of monitoring activities are to be maintained and used to evaluate progress relative to such objectives. Monitoring shall be conducted consistent with the principles of adaptive management as defined in Department of the Interior policy, as appropriate.

.05 References.

A. 50 CFR Part 17—Endangered and Threatened Wildlife and Plants.

B. 50 CFR Part 17—Subpart H—Experimental Population.

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C. 50 CFR Part 226—Designated Critical Habitat.

D. 50 CFR Part 402—Interagency Coordination—Endangered Species Act of 1973, as amended.

E. 50 CFR Part 424—Listing Endangered and Threatened Species and Designating Critical Habitat.

F. 50 CFR Part 451—Application Procedure.

G. 43 CFR 4180—Fundamentals of Rangeland Health and Standards and Guidelines for Grazing Administration.

H. 68 FR 68255 (December 8, 2003)—Joint Counterpart Endangered Species Act Section7 Consultation Regulations.

I. BLM Manual Section1601—Land Use Planning.

J. BLM Handbook H-1601—Land Use Planning Handbook.

K. BLM Manual 1745—Introduction, Transplant, Augmentation, and Reestablishment of Fish, Wildlife, and Plants.

L. BLM Manual 1740—Renewable Resource Improvements and Treatments.

M. BLM Handbook H-1740-2—Integrated Vegetation Management Handbook.

N. BLM Handbook H-4180-1—Rangeland Health Standards Handbook.

O. FWS and NMFS Endangered Species Consultation Handbook (March 1998).

P. FWS Director, June 25, 2002, Memorandum on Arizona Cattle Growers Decision and Solicitor’s opinion.

Q. Norton v SUWA, 542 US 55 (2004).

R. National Association of Homebuilders v Defenders of Wildlife, 127 S. Ct. 2518

(2007).

S. Forest Guardians v Forsgren, 478 F.3d 1149 (10th Cir 2007).

T. Western Watersheds Project v Bureau of Land Management, 552 F. Supp. 2d 1113

(D. N.V. 2008).

U. Western Watersheds Project v Matejko, 468 F.3d 1099 (9th Cir 2006).

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V. Arizona Cattle Growers Association v Fish and Wildlife Service, 273 F.3d 1229 (9th Cir 2004).

W. Gifford Pinchot Task Force v Fish and Wildlife Service, 378 F.3d 1059

(9th Cir 2004).

X. Application of the Endangered Species Act to proposals for access to non-Federal lands across lands administered by the Bureau of Land Management and the U.S.

Forest Service, signed January 2003.

.06 Policy. Actions authorized by the BLM shall further the conservation and/or recovery of federally listed species and conservation of Bureau sensitive species. Note that “conservation” has a different meaning depending on whether it is referring to ESA listed species or Bureau sensitive species. See glossary. Bureau sensitive species will be managed consistent with species and habitat management objectives in land use and implementation plans to promote their conservation and to minimize the likelihood and need for listing under the ESA.

The BLM shall retain in Federal ownership those habitats essential for the conservation of any listed species, particularly those that are part of a broader, logical public land ownership management unit. The BLM may dispose of lands providing habitat for listed species, including critical habitat, only following consultation with the FWS or NMFS and upon a determination that such action is consistent with relevant law. This policy does not apply to any lands conveyed pursuant to the Alaska Native Claim Settlement Act.

.1 Administration of the ESA. The administration portion of this manual is divided into three separate parts: (1) species and habitats listed under the ESA, (2) species identified by BLM as Bureau sensitive and (3) general cooperation on BLM special status species management.

The BLM shall conserve federally listed species by fulfilling the requirements of the ESA as described in this section. The Bureau sensitive species shall be conserved through the use of management practices as described in Section .2.

Various provisions of the ESA, as amended, apply to plants and animals that have been listed as endangered or threatened, those proposed for being listed, and designated and proposed critical habitat. The BLM shall conserve listed species through administration of the various sections of the ESA that apply to Federal agencies. When administering the ESA, the BLM shall use the best scientific and commercial data available. The BLM shall comply with all applicable sections of the ESA as follows:

A. Section 2 (Findings, purposes, and policy). The BLM shall, consistent with Section 2 of the ESA, seek to conserve endangered and threatened species and shall utilize its authorities in furtherance of the purposes of the ESA. In addition:

1. Federal Agency Cooperation. The BLM will cooperate with other Federal agencies as follows:

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a. Seek to improve efficiency by combining efforts with other Federal agencies to foster better working relationships and promote the conservation of listed species.

b. Establish or participate in existing regional interagency working groups that identify geographic areas within which the groups will coordinate agency actions, create opportunities, and overcome barriers to conserve listed species and the ecosystems upon which they depend.

c. Participate in national ESA working groups to coordinate the implementation of the ESA.

2. State and Local Agency Cooperation. As specifically addressed in Section 2 of the ESA, the BLM shall cooperate with State and local agencies to resolve water resource issues in concert with conservation of endangered species. The BLM should:

a. Participate on watershed councils.

b. Provide technical assistance to State and local agencies on species, critical habitats, and resources.

c. Actively engage in the Federal Energy Regulatory Commission licensing and relicensing process for hydropower projects affecting ESA-listed and proposed species on BLM-administered lands.

B. Section 4 (Determination of endangered species and threatened species, designation of critical habitat and development of recovery plans). While it is the responsibility of the FWS and/or NMFS to list threatened or endangered species and designate critical habitat, the BLM should provide relevant information to the FWS and/or NMFS on species or habitats proposed for listing and may petition to add a species to, or to remove a species from, the threatened or endangered species list. In addition, the BLM should provide information to the FWS and/or NMFS on proposed critical habitat for BLM-administered lands as per the policy at .1.B.3 of this Manual, and cooperate, as appropriate, with the FWS and/or NMFS in developing recovery plans for listed species that occur on BLM-administered lands.

In the development of BLM comments on recovery plans, listing proposals, or critical habitat proposals involving species distributed across more than one state, the BLM will consider designation of a lead State Office or the Washington Office to prepare consolidated agency comments. The decision on preparation of such comments will be jointly agreed to among the affected State Offices and the Washington Office.

1. Determination of endangered or threatened status. Determination of endangered or threatened status of species by the FWS and/or NMFS is provided

.1B1a6840 – SPECIAL STATUS SPECIES MANAGEMENT – (Public) for in Section 4 of the Endangered Species Act and the procedures in 50 CFR Part

424. BLM should provide assistance to the FWS and/or NMFS for actions that affect BLM-administered land, including as follows:

a. Responsibilities. The BLM is responsible for preparing and maintaining, on a continuing basis, a current inventory of the public land and its resources (FLPMA, 43 U.S.C. 1701 Sec.201 (a)). This inventory information, along with monitoring data collected under a variety of programs, shall be used to evaluate the current status and trends of plants and animals and their habitats on BLM-administered lands, and to respond to FWS and/or NMFS Federal Register Notices of species status review (e.g., 90-day, 12-month, 5-year, and annual candidate reviews).

b. Petitions. When conditions warrant, the BLM Director may petition the FWS and/or NMFS to change the status of any species or revise critical habitat. These petitions shall contain appropriate biological evidence to substantiate any proposed change.

(1) A petition to delist a species or downlist a species from endangered to threatened must demonstrate clearly that the recovery plan objectives have been met or that there is new evidence to show that the conditions on which the initial listing was based no longer exist. Petitions to delist should also include a statement on how the BLM intends to manage the species to ensure that the provisions of the ESA will not be required in the future.

(2) Petitions to list or delist a species must be based solely on substantial scientific information for the species and its habitat, and must address the five factors for listing included in Section 4 of the ESA.

(3) All petitions shall be coordinated with the appropriate State agency having responsibility for the species involved.

2. Recovery plans. Recovery plans are prepared by the FWS and/or NMFS and establish recovery objectives for a species, provide a listing of tasks necessary to achieve those objectives, and recommend assignments to involved agencies to carry out these tasks. A primary function of recovery plans is to combine programs of all agencies involved in managing a species into a coordinated management effort. The BLM will incorporate objectives and actions identified in recovery plans into BLM documents, as appropriate. Examples of such documents include land use plans, implementation level plans, and species conservation plans or agreements.

a. Recovery Teams. The FWS and/or NMFS often request that the BLM provide representatives to serve as members on recovery teams to assist in preparation of recovery plans for species where public land has a significant

.1B2a(1) 6840 – SPECIAL STATUS SPECIES MANAGEMENT – (Public) role in recovery. These requests usually include a suggestion for a particular employee with special qualifications.

(1) State Directors should make employees with special expertise available and provide support as appropriate to help ensure timely completion of recovery plans.

(2) BLM employees should accept these nominations. The role of the team member is to be a technical expert and advisor, to provide biological input for the species and its habitat, and to inform the recovery team of BLM policies, programs, and procedures.

(3) For species that range across multiple states, the BLM employee on the recovery team shall coordinate with the other affected BLM State Offices.

(4) BLM employee participation in recovery plan preparation does not indicate BLM Director or State Director endorsement of the plan.

b. Technical Review Drafts. The appropriate State Office or selected BLM representative should review technical review drafts of recovery plans to ensure that the information is biologically correct and complete. This review and input represents State Director formal response to the review draft.

c. Agency Review Drafts. All BLM offices that will be involved in implementation of a particular recovery plan should review draft plans. The State Director(s) in the affected State(s) shall designate a BLM lead office to complete the following analysis using field office input:

(1) Determine whether measurable objectives are stated clearly.

(2) Identify any conflicts with other laws, regulations, and policies governing BLM programs and activities.

(3) Identify constraints on other BLM programs, activities, or practices mentioned or implied in the plan.

(4) Evaluate the effects of planned actions carried out by other cooperators on BLM programs.

(5) Identify any inconsistencies with other BLM plans, ongoing programs, or ongoing practices. Initiate efforts to make appropriate adjustments to meet recovery needs.

(6) Check accuracy of cost estimates for BLM tasks, and evaluate economic feasibility of accomplishing the assigned tasks within existing

.1B3 6840 – SPECIAL STATUS SPECIES MANAGEMENT – (Public) and prospective staffing and budgetary constraints.

3. Critical Habitat Proposals on BLM-administered Lands. Whenever the FWS and/or NMFS propose to designate critical habitat on BLM-administered lands, the State Director(s) should provide a written response to the Federal Register notice that identifies any special management considerations that are in place on BLM lands. Where the State Director determines that adequate conservation measures are in place, and that the benefits, including economic benefits, of excluding BLM lands from critical habitat designation exceed the benefits of inclusion of BLM lands, the State Director shall request exclusion of BLM lands from the critical habitat designation pursuant to Section 4(b)(2) and/or Section 3(5)(A) of the ESA. For proposals across multiple States, the Director will coordinate with the States and submit such information.

4. Delisted Species. The objectives of recovery plans and actions should ultimately be species recovery and removal from the Federal threatened or endangered species list (delisting). Pursuant to the ESA, FWS and/or NMFS are required to monitor delisted species for a minimum of 5 years. The BLM shall work with partners such as the FWS, NMFS, State agencies, and others, as appropriate, to monitor delisted species.

C. Section 5 (Land Acquisition). This section authorizes the Secretary of the Interior to use Land and Water Conservation funds to acquire lands to conserve fish, wildlife, and plants, including those that are listed as endangered species or threatened species. When the BLM engages in the land use planning process, it will identify appropriate opportunities for acquisition by purchase, donation, land exchange, conservation easement, or other means, of land, water, or interests therein for the purpose of conserving fish, wildlife and plants, including listed

D. Section 6 (Cooperation with States). This section authorizes the Secretary to cooperate to the maximum extent practicable with States, including entering into management agreements and cooperative agreements for the conservation of threatened and endangered species. The BLM should implement this section through a State level memorandum of understanding by providing technical assistance to, and coordinating with, State agencies responsible for the conservation of endangered and threatened species.

E. Section 7(a)(1) (Conservation Programs). Section 7(a)(1) requires the BLM to use its authorities to further the purposes of the ESA by implementing programs for the conservation of threatened and endangered species and the ecosystems upon which they depend. Ways in which the BLM can carry out these responsibilities include, but are not limited to:

1. Developing and implementing activities that provide for the conservation and recovery of species listed pursuant to the ESA.

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2. Undertaking actions designed to maintain the integrity of the primary constituent elements of federally designated critical habitat on BLM-administered lands.

3. Ensuring that BLM actions are not likely to jeopardize the continued existence of any endangered species or threatened species or destroy or adversely modify designated critical habitat.

4. Determining, to the extent practicable, the occurrence, distribution, population, and habitat condition of all ESA-listed species on BLM-administered lands, and evaluating the significance of BLM-administered lands in the conservation of those species.

5. Developing and implementing agency land use plans, implementation plans, and actions in a manner consistent with conservation and/or recovery of listed species.

6. Monitoring and evaluating ongoing management activities to ensure conservation objectives for listed species are being met.

7. Cooperating with the FWS and/or NMFS and other interested parties in species recovery and conservation as provided in species recovery plans. Such actions may include species reintroductions, which shall be carried out in conformance with BLM Manual 1745.

8. Implementing conservation recommendations included in biological opinions if they are consistent with relevant law and policy and are technologically and economically feasible.

F. Section 7(a)(2) (Consultation). The procedures for carrying out Section 7(a)(2) are included in 50 CFR Part 402, Interagency Cooperation and the counterpart regulations developed for National Fire Plan projects (50 CFR Part 402.30-34).

Whenever the BLM is considering a discretionary action that may affect a listed or proposed species or designated or proposed critical habitat, the BLM should consider engaging the FWS and/or NMFS early in the project development process and seek recommendations designed to minimize or avoid potential adverse affects to resources protected under the ESA.

1. Discretionary and Nondiscretionary Agency Actions. Section 7(a)(2) applies to affirmative “agency actions” that are authorized, funded, or carried out by the BLM. The BLM must also have discretion to undertake the action. See Part b, below. Illegal and prohibited actions (e.g., trespass grazing) are not Federal actions and therefore do not require consultation.

a. Consultation requirements apply to all discretionary actions that are

.1F1a(1) 6840 – SPECIAL STATUS SPECIES MANAGEMENT – (Public) authorized, funded, or carried out by the BLM, whether or not:

(1) The species or critical habitat occurs on BLM-managed lands.

(2) The proposed action occurs, either wholly or in part, on BLM-managed lands.

(3) The BLM itself carries out the proposed action.

(4) The species occurs on non-Federal surface lands and the BLM manages the subsurface mineral estate (split-estate lands).

b. Determining if an Action is Discretionary or Nondiscretionary.

(1) Generally, actions that the BLM is statutorily required to perform, with no discretion to take an action to inure to the benefit of, including limiting the impacts of action on, a listed species or designated critical habitat, are not discretionary, and therefore initiation of consultation is not required. Reinitiation of consultation is slightly different and is discussed in section .1.F.5.h. However, if the BLM’s discretion is constrained by its own regulation or otherwise, initiation of consultation is generally still required. Examples of statutory nondiscretionary activities include patenting of mining claims and land conveyances pursuant to the Alaska Native Claims Settlement Act. When field managers are uncertain whether particular actions are nondiscretionary for purposes of ESA consultation, they should seek guidance from their respective State Office.

(2) Pre-ESA authorizations to Private Parties. When the BLM has authorized actions by private parties on public lands before the enactment of the ESA, it only has to consult on post-ESA activities conducted by those private parties if it retains discretionary involvement or control over those private actions sufficient to take some action to inure to the benefit of, including limiting the impacts of action on, a listed species or designated critical habitat. If the BLM did not retain such discretionary involvement or control, consultation on further BLM action is not required. For example, the BLM need not consult on activities conducted by private parties on BLM rights-of-way granted before the ESA if the right-of-way does not grant it sufficient discretionary control to take actions that inure to the benefit of, or limit the impacts of action on, a listed species or designated critical habitat.

c. Even if an action is determined to be nondiscretionary on behalf of the BLM, provisions of the ESA may be applicable to the outside entity involved with the activity. In such situations, the BLM’s responsibilities are as follows:

(1) If the BLM has reason to believe a nondiscretionary action involving

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BLM-administered lands may affect listed species or designated critical habitat, the BLM shall provide written notification to any person or persons involved that ESA-listed species or designated critical habitat are present.

(2) If the outside entity involved with the nondiscretionary action wishes to develop measures that would eliminate effects on listed species or designated critical habitat, the BLM shall arrange for the participation of BLM specialists and, if needed, specialists from the FWS and/or NMFS during the process of developing such measures.

2. Characterizing the Proposed Action, Action Area, Interrelated and Interdependent Actions, Effects of an Action, and the Environmental Baseline.

When the BLM is carrying out its consultation and conference responsibilities under Section 7(a)(2) (see Sections 3, 4, and 5), it is critical to properly characterize the proposed action, the action area, the environmental baseline, and effects. Cumulative effects are considered in relation to the requirements of the ESA only during the formal consultation process and are discussed in Section .1.F.2.e.(3).

a. Proposed Action. The proposed action includes any species conservation measures. These actions can include both on-site actions to minimize or avoid effects to listed species or critical habitat and off-site conservation actions for the benefit of listed species. Although off-site compensatory mitigation may not be used as a means of reducing the effects on the listed species at the site, such actions can be used by the BLM as a means of furthering its conservation objectives under Section 7(a)(1) of the ESA and as a means of meeting resource objectives under land use plans.

b. Action Area. The action area includes those areas affected directly or indirectly by the action, not merely the footprint of the action. For example, noise disturbance resulting from the action that may be transmitted beyond the immediate project area must be assessed as part of the proposed action.

c. Interrelated and Interdependent Actions. Interrelated actions are those actions that are part of a larger action and depend on the larger action for their justification. Interdependent actions are those that have no independent utility apart from the action under consideration. The “but for” test should be used to assess whether an action is interrelated or interdependent to the proposed Federal action. If the activity would not occur “but for” the proposed Federal action, then the activity is interrelated or interdependent and must be considered during consultation on the proposed Federal action. If the Federal action merely facilitates the implementation of a subsequent action that may cause an effect on a listed species, those subsequent effects are not effects of the Federal action and are not subject to consultation. If however, the Federal action is essential for implementing a subsequent action, the effects of both

.1F2c(1) 6840 – SPECIAL STATUS SPECIES MANAGEMENT – (Public) the Federal action and subsequent action need to be analyzed in the consultation.

(1) Rights-of-Way. If the Federal action is an authorization for a right-of-way to private land, yet there is alternative access for the project proponent, only effects from the Federal right-of-way need to be analyzed.

If there is no alternative access, effects from both the Federal action and private action need to be analyzed in the consultation. Unless otherwise requested by an applicant (see section .1F.8.), the consultation process associated with the Federal action can only be used to condition activities on Federal lands.

(2) Split-Estate Federal Minerals. When necessary to comply with the ESA, the BLM or project proponent shall collect information to support an analysis of the effects to listed and proposed species as part of an effect determination for the proposed action in a biological assessment. This may include the need for conducting inventory of either ESA listed or proposed species on private surface lands. The BLM or the Federal mineral lessee has the right to enter the property for this purpose, since it is a necessary prerequisite to development of the dominant mineral estate.

When sufficient information already exists, the BLM may proceed through the Section 7 consultation process using the existing information and determine appropriate measures to avoid and minimize effects on listed species and their habitats.

The BLM will take the lead in completing consultation on the proposed action unless the surface estate is administered by another Federal agency that elects to serve as the lead for consultation, or the project proponent is designated as the non-Federal representative by the Federal agency managing the surface or by the BLM (see section .1.F.8).

d. Environmental Baseline. The environmental baseline is the condition of a species or critical habitat at a specified time within the action area. The baseline does not include effects of the action under review for consultation.

It does include the Federal, tribal, State, local, and private actions already affecting a species or critical habitat, or those that will occur while the consultation is in progress. Federal actions unrelated to the action under consultation that have affected or are affecting the species or critical habitat and have a completed formal, informal, or early consultation are part of the baseline.

e. Types of Effects. There are three types of effects that are considered under Section 7(a)(2) of the ESA: direct effects, indirect effects, and cumulative effects. Each type of effect is described below. In addition, when considering the effects of a proposed action under Section 7(a)(2), the BLM is required to consider the effects of interrelated or interdependent actions.

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(1) Direct Effects. Those effects caused by the action and that occur in the same time and place. Direct effects are immediate, natural causes of taking the proposed action. Effects of future federal actions cannot be direct effects.

(2) Indirect Effects. Those effects caused by the action that are later in time, but reasonably certain to occur.

(a) “Caused by.” For a particular effect on a species or critical habitat to be caused by a particular action, there must be a close causal connection between the action and the effect. This means that the particular effect must not be able to occur “but for” the action under consultation. Thus, if the effect may occur without the action under consultation taking place, the “but for” portion of the test is not met and the effect need not be considered.

(b) “Reasonably Certain to Occur.” For a particular effect to be an effect subject to consultation, it must be reasonably certain to occur.

This determination cannot be based on speculation or the mere possibility of an effect on a listed species or critical habitat. In the context of indirect effects, “reasonably certain to occur” may be evidenced by appropriations, work plans, permits issued, or budgeting;

they follow a pattern of activity undertaken in the action area; or they are the logical extensions of the proposed action.

(3) Cumulative Effects. In accordance with Section 7 regulations, the FWS and/or NMFS is required to consider cumulative effects in formal consultation when determining whether or not an action is likely to jeopardize the continued existence of a species. The regulations require the BLM to provide an analysis of cumulative effects for projects entering formal consultation. Cumulative effects, as defined for the purposes of the ESA, involve those effects from future non-Federal actions (tribal, State, local, private and other entities) that are reasonably certain to occur within the action area. See the discussion under indirect effects for an explanation of “reasonably certain to occur.” Future Federal actions are not considered as they will be subject to consultation when they are proposed. When making the “reasonably certain to occur” determination in the context of cumulative effects, the BLM must examine the effects of these actions that are likely to occur, bearing in mind the economic, administrative, or legal hurdles that remain to be cleared. Indications of this likelihood include approval of the action by the appropriate government unit(s), evidence of funding having been obtained by project sponsors, or the initiation of contracts. These future non-Federal actions are reasonably certain to occur if approval by all non-Federal agencies or governments granting authority for the action is reasonably certain and

.1F2e(4) 6840 – SPECIAL STATUS SPECIES MANAGEMENT – (Public) economically viable. Past and ongoing effects are considered part of the environmental baseline and are not considered cumulative effects.

(4) Distinguishing between National Environmental Policy Act (NEPA) effects and ESA effects. NEPA and the ESA have different purposes and impose different analytical standards. While the NEPA and ESA standards for direct effects are very similar, there is an important difference between the acts regarding the standards for indirect and cumulative effects. Under NEPA, indirect or cumulative effects must be reasonably foreseeable. In contrast, the ESA and its regulations require that such effects be reasonably certain to occur. Thus, effects that may be required to be considered under the NEPA analysis standard may not necessarily require consideration under the ESA. In addition, under NEPA, cumulative effects include the effects of both Federal and non-Federal actions, whereas under ESA, cumulative effects do not include Federal actions.

3. “May Affect” Determination. If the BLM is taking a discretionary agency action, it must determine if the action “may affect” a listed species or designated critical habitat. If the BLM determines that ESA-listed species or designated critical habitat may be affected by an action, either positively or negatively, then the BLM must engage in either informal or formal consultation. In addition, the FWS and/or NMFS may request that the BLM enter into consultation if they identify an action for which there has been no consultation that may affect a listed species or designated critical habitat. If the BLM determines, after a review of the project and any interrelated or interdependent actions, that there is no reasonable likelihood that listed species are in the action area, or that there will be no direct or indirect effects to the species in the action area, the action is determined to have “no effect” on listed species or critical habitat. No consultation is required under these circumstances. The administrative record should document these conclusions.

4. Informal Consultation. Informal consultation is a process that includes all discussions and correspondence between the FWS and/or NMFS and the BLM or its designated non-Federal representative. Its purpose is to assist the BLM in determining if formal consultation is required.

If the BLM determines that its particular discretionary agency action “may affect” a listed species or designated critical habitat, it must then determine whether the action is likely to adversely affect (LAA) any listed species or designated critical habitat or not likely to adversely affect (NLAA) such resources.

The consultation regulations at 50 CFR 402.12 only require preparation of a biological assessment (BA) when an action agency proposes a “major construction activity,” which is defined as an action requiring preparation of an

.1F5 6840 – SPECIAL STATUS SPECIES MANAGEMENT – (Public) environmental impact statement pursuant to the National Environmental Policy Act. However, the BLM will prepare a BA for submittal to FWS and/or NMFS when seeking concurrence on an NLAA determination. The scope and content of a BA prepared by the BLM shall be directly related to the level of potential effect on listed species or designated critical habitat. See Section .1F.5.a.(2) for guidance on the preparation of a BA.

Not likely to adversely affect (NLAA) is the appropriate conclusion when a causal mechanism for creating an effect exists, and the effect is 1) discountable,

2) insignificant, or 3) completely beneficial. These effects have an extremely low probability of occurrence (discountable); cannot be translated into any significant measurable effect on the species even when effects on habitat can be measured (insignificant); or are completely beneficial. For discountable and insignificant, the risk of harm or harassment is so low that a reasonable person would not consider it a factor in making a decision on the proposed action.

Likely to adversely affect (LAA) is the appropriate conclusion if a causal mechanism exists within the action area that creates a direct or indirect effect, or an effect from an interrelated or interdependent activity, that is not discountable, insignificant, or completely beneficial. Adverse effects are those where the likelihood of “take” resulting from the action is not insignificant, and evidence is present in a logical analysis to support this determination to the extent that a reasonable person would agree with the determination.

If the BLM determines that the action is LAA, formal consultation is required. If the BLM determines a proposed action is NLAA a listed species or designated critical habitat, the agency must request that the FWS and/or NMFS concur in that determination. If the FWS and/or NMFS indicate they are unlikely to support an NLAA determination, the BLM should consider further discussion with the Services directed at resolution of outstanding questions and possible development of additional measures to reduce potential effects on listed species or designated critical habitat. If the FWS and/or NMFS refuse to concur in a BLM determination that an action is NLAA, formal consultation is required.

Similarly, if the BLM determines that an action is LAA, formal consultation is required.

Informal consultation does not conclude until the BLM has written concurrence of its determination from the FWS and/or NMFS, until the procedures specified under counterpart regulations at 50 CFR 402.34 have been fulfilled, the BLM makes a determination of no effect, or until the BLM enters formal consultation with the FWS and/or NMFS.

5. Formal Consultation. Formal consultation is required on all actions that may affect a listed species, or any designated critical habitat, unless written concurrence that an action is not likely to adversely affect the species is received from FWS and/or NMFS, or the action qualifies for an alternative consultation

.1F5a 6840 – SPECIAL STATUS SPECIES MANAGEMENT – (Public) under an alternative consultation agreement pursuant to the counterpart regulations for national fire plan projects. When it is determined by the BLM that a proposed action may affect and is likely to adversely affect a listed species or designated critical habitat, the BLM shall initiate formal consultation. Formal consultation is conducted to determine if the proposed action is likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of designated critical habitat. Formal consultation is initiated with submission of a completed biological assessment and a written request to initiate formal consultation.

a. Providing Information. During formal consultation, the BLM shall provide the FWS and/or NMFS with the best scientific and commercial information available for an adequate review of the effects that a proposed action may have on a listed species or designated critical habitat. If information is lacking, the FWS and/or NMFS can request that the BLM conduct additional surveys or studies to better address listed species issues. Although additional surveys or studies are not required by the ESA, and in many situations may not be practicable, they can be in the BLM’s best interest, as the FWS and/or NMFS generally err on the side of conserving listed species when rendering a biological opinion based on limited information. In some situations, it may be necessary to enter consultation with the presently available best scientific and commercial data.

(1) The BLM shall request in writing a list from the FWS and/or NMFS of listed species and designated critical habitat in the action area of a major construction activity. The BLM may request in writing from FWS and/or NMFS a list of species or designated critical habitat for any other agency action. In lieu of requesting such a list, the BLM may determine the presence of listed species or designated critical habitat within the action area and request concurrence from the FWS and/or NMFS.

(2) The BLM shall prepare a biological assessment (BA), as described in 50 CFR 402.12 and 402.14, as the means of providing the best scientific and commercial information available to the FWS and/or NMFS.

(a) When to prepare a BA. A biological assessment shall be prepared for all actions on which formal consultation is necessary. In some instances, the BLM may satisfy the requirement to prepare a BA by incorporating by reference material from a previous biological assessment pertaining to a similar action or through preparation of an environmental assessment or environmental impact statement.

(b) BA contents. By regulation, the contents of a BA are at the discretion of the Federal action agency; however, they shall be based on the best available scientific and commercial data, and shall clearly document the logic used by BLM in reaching its determination of

.1F5b 6840 – SPECIAL STATUS SPECIES MANAGEMENT – (Public) effects. The consultation regulations (50 CFR 402.12.j) contain recommended contents of a BA. The content of a BA prepared by the BLM for either informal or formal consultation will contain the same information, except that a BA prepared for informal consultation will not include a discussion of cumulative effects. BAs prepared by the BLM will contain the following information:

(i) A clear, thorough description of the action, including any actions to minimize or avoid adverse effects on listed species or designated critical habitat.

(ii) A description of the area that may be directly or indirectly affected by the action.

(iii) Identification of any interrelated or interdependent actions.

(iv) A description of any listed species or designated critical habitat that may be affected, including the results of any on-site inspection(s) of the action area to determine if listed or proposed species are present or occur seasonally.

(v) A review of the literature, and any other pertinent information, including available views of recognized experts on the species at issue.

(vi) An analysis of the direct and indirect effects of the action and any interrelated or interdependent actions on the listed species and critical habitat.

(vii) A determination of effects that is clearly supported by the analysis of effects.

(viii) Identification of any alternate actions considered by the Federal agency for the proposed action.

(ix) For formal consultation only, an analysis of cumulative effects.

While it is important to analyze and document the effects of actions on Bureau sensitive species and “no effect” determinations for listed species in NEPA documents, these analyses will not be included in BAs provided to the FWS and/or NMFS.

b. Irreversible and Irretrievable Commitment of Resources.