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Environmental Law

: ESA Blawg

NMFS (and FWS) critique Forest Service and Bureau of Land Management in joint report on National Forest Plan

By Keith Rizzardi

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73 Fed. Reg. 7260-7261 (Feb. 7, 2008)(Endangered and Threatened Species: Program Review for Section 7 Counterpart Regulations National Fire Plan Activities)

SUMMARY: “The National Marine Fisheries Service (NMFS) announces the availability of a joint report on the Forest Service and Bureau of Land Management's use of the counterpart regulations for projects that support the National Fire Plan... With the publication of this Notice of Availability, NMFS and FWS are announcing the completion of the first review of the FS's and BLM's use of the counterpart regulations (for the 2004 fire season) and the availability of the report describing the results of the program review and recommendations for improving their decisions made pursuant to this authority."

COMMENTARY: Generally, federal agency actions can trigger the Endangered Species Act’s consultation process, leading to a concurrence letter when the activities are not likely to adversely affect listed species or habitat, or a biological opinion when the activities may affect listed species or habitat. Counterpart regulations, however, provide an optional alternative to the standard section 7 consultation process.

In this Federal Register notice, NMFS announced a document related to counterpart regulations developed specifically for agency projects that authorize, fund, or carry out actions that support the National Fire Plan, as codified in 50 CFR part 402 subpart C. The National Fire Plan, part of the President’s 2002 Healthy Forests Initiative, is an interagency strategy for reducing the risk of catastrophic wildland fires and restoring fire-adapted ecosystems. See overview. The intent of the counterpart regulations is to eliminate the need to conduct informal consultation and obtain written concurrence from the Services for those National Fire Plan actions that the Action Agency determines are “not likely to adversely affect (NLAA)” any listed species or designated critical habitat.

Photo from National Fire Plan Overview

In this document, both NMFS and the U.S. Fish and Wildlife Service criticized the Forest Service and Bureau of Land Management for their implementation of the counterpart regulations. However, all four agencies agreed to a series of recommendations to address the shortcomings. For a more detailed discussion of this onlinedocument, see below.

In the noticed document, entitled Use of the ESA Section 7 Counterpart Regulations for Projects that Support the National Fire Plan, and as posted online by NMFS, the agencies discussed the first year of implementation of these regulations. As explained in Table 8 of the document, 22 different National Forests used the Section 7 Counterpart Regulations in Year 1, with an average of 2 threatened or endangered species per project. In total, 44 different species were involved. Generally, the projects involved mechanical fuels treatment, thinning or fuel removal, prescribed fire activities, or ecosystem restoration. Through the counterpart regulations process, the Forest Service (FS) and Bureau of Land Management (BLM) were required to:

Identify proposed action clearly (includes a description of the various components of the action)
Identify spatial and temporal patterns of the action’s direct and indirect environmental effects, including direct and indirect effects of interrelated and interdependent actions
Identify Action Area clearly (based on information in 2.)
Identify all threatened and endangered species and any designated critical habitat that may be exposed to the proposed action (includes a description of spatial, temporal, biological characteristics and constituent habitat elements appropriate to the project assessment)
Compare the distribution of potential effects (identified in 2) with the threatened and endangered species and designated critical habitat (identified in 4) and establish, using the best scientific and commercial data available, that (a) exposure is improbable or (b) if exposure is likely, responses are insignificant, discountable, or wholly beneficial; and
Base the determinations on best available scientific and commercial information.

In its “Summary of NMFS’ Review of BAs Submitted by FS and BLM Pursuant to the Counterpart Regulations,” both NMFS and FWS were critical of the way in which the counterpart regulations were implemented during the 2004 fire season. For example, in an evaluation of 10 “biological assessments” (BA) prepared by the U.S. Forest Service and Bureau of Land Management, NMFS concluded that:

"None of the ten BAs contained an explicit description of the action’s direct and indirect effects sufficient to delineate spatial and temporal patterns of effects on the environment;"
"Critical habitat... was routinely neglected in the assessments. Although critical habitat was initially mentioned as relevant to the assessment in all ten BAs, none of the BAs described the primary constituent elements appropriate to the assessment."
"Finally, most of the assessments contained very limited citations or supporting evidence on species distribution, effectiveness of BMPs est management practices and the conclusions reached in the effects analysis... Without evidence to support the various premises offered in the BAs, the argument does not appear sufficient to support the conclusions."

FWS offered similar criticisms of many of the BAs. However, much to their credit, the four federal agencies, FWS, NMFS, USFS, and BLM, all agreed to take action in response to the shortcomings that were exposed by this report, as explained in the “Recommendations” section of this report:

"Based on the results of the FWS’ and NMFS’ evaluations, although 18 of the 52 Bas/BEs evaluated met all the evaluation criteria, more than half fell short in one or more areas indicating that the FS and BLM need to improve the quality of documentation supporting decisions made pursuant to the ESA counterpart regulations to ensure they meet the requirements of the ACAs, and are sufficient to fully support the decisions reached, as stand-alone documents. Towards this end, the four agencies recommend a number of specific actions. The recommendations focus on two primary areas that could most effectively enhance implementation of the counterpart regulations—oversight and training."

Full post as published by ESA Blawg on February 12, 2008 (boomark / email).