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Consulting on your allotment for ESA concerns

Sarah D. Baker Published on 24 July 2012
Grazing cattle

Editor’s note: This is the second in a two-part series. Click here to read part one of the series. Last month, I gave a brief overview of the Endangered Species Act (ESA), one of the most common legal mandates that relates to grazing on public lands.

The ESA contains 18 sections. The most commonly referred to are Sections 4, 7, 9, and 10:

  • Determination of Endangered Species and Threatened Species (Section 4)
  • Interagency Consultation (Section 7)
  • Prohibited Acts (Section 9)
  • Penalties and Enforcement (Section 10)

This article will focus on Section 7, Interagency Consultation.

Section 7: Consultation

Federal agencies are directed, under Section 7 of the ESA, to utilize their authorities to carry out programs for the conservation of Threatened and Endangered (T&E) species.

Thus, the U.S. Forest Service (USFS) and Bureau of Land Management (BLM) must consult with National Marine Fisheries Service (NMFS) and Fish and Wildlife Service (FWS) on activities (grazing in this example) that may affect a listed species.

These consultations are designed to assist action agencies in fulfilling their duty to ensure federal actions do not jeopardize the continued existence of a species (steelhead, salmon or bull trout in this example) or destroy/adversely modify critical habitat.

Consultation process

The preparation of a biological assessment (BA) is required for proposed projects (grazing in this example) when T&E species may be affected.

The BA is a report prepared by the action agency (USFS or BLM) and includes the evaluation of potential effects of the action (grazing) on the T&E species present and their habitat.

If the BA determines the proposed project may affect – but is not likely to adversely affect – listed species or their habitat, then the consultation process (informal to this point) is concluded and the services (NMFS, FWS) will issue a letter of concurrence (LOC).

If the BA determines the proposed project may affect – or is likely to adversely affect – listed species or their habitat, then formal consultation is required.

The consultation process occurs in a designated time period of 90 days, after which the services have 45 days to prepare a biological opinion (BO).

BOs document the service’s opinion as to whether the action (grazing) is likely to jeopardize the continued existence of a listed species (steelhead, salmon or bull trout in this example) or result in the destruction or adverse modification of critical habitat.

If the services decide jeopardy exists with the proposed action, the BO will identify any reasonable and prudent alternatives (RPAs) that could allow the project (grazing) to move forward and avoid the jeopardy.

Formal consultation is a mandatory process for proposed projects that may adversely affect listed species. It is initiated in writing by the action agency and concludes with the issuance of a BO by the services.

Informal consultation is an optional process that is designed to help the action agency determine whether formal consultation is needed. It includes all discussions, correspondence, etc. between the services and the action agency and has no specified time frame for completion.

Applicant status

Grazing permittees are entitled to participate and should be involved in the consultation process.

Section 7(a)(3) of the ESA provides that: “Subject to such guidelines as the Secretary may establish, a Federal Agency shall consult with the Secretary on any prospective agency action at the request of, and in cooperation with, the prospective permit or license applicant … ” This is referred to as applicant status.

Meet with your range management specialist and fisheries biologist. Develop long-term grazing strategies for your allotment. These will be used as the basis (proposed action) for evaluation in the BA and consultation with the services.

Applicant status is not required to participate in these activities. Applicant status is only used after the consultation process has progressed to the stage of reviewing the draft BO written by the services on only those allotments determined “likely to adversely affect” a listed species or habitat.

Requests to have applicant status must be made in writing. Once applicant status has been conferred by the action agency, the applicant is:

  1. Entitled to submit information for consideration during consultation.
  2. Must be informed by the action agency of the estimated length of any extension of the 180-day time frame for preparing a BA, along with a written statement of the reasons for the extension must concur with any decisions to extend the 60-day time frame to conclude a formal consultation.
  3. Entitled to review draft BOs received from the services and to provide comments.
  4. Entitled to have the services discuss the basics of the biological determination with them and to have the services seek the applicants’ expertise in identifying reasonable and prudent alternatives to the action if likely jeopardy or adverse modification of critical habitat is determined.
  5. Entitled to have the services provide a copy of the final BO to them.

Common-sense solutions

Grazing management on public lands does not come without conflicts and frustrations. Researchers identified six general areas that provide ranchers a process to improve range management and their ability to reduce and/or mitigate public land management conflicts:

  1. Maintain open lines of communication with agency personnel associated with your grazing allotment.
  2. Gather and organize available information.
  3. Design and implement a monitoring plan to document vegetation changes over time.
  4. Locate and study problem areas.
  5. Evaluate alternatives for management.
  6. Know your legal rights, responsibilities, and appeals procedures.

Be proactive and keep the lines of communication open with your local agency representatives.

Technical assistance can be obtained from the Natural Resource Conservation Service (NRCS), local Cooperative Extension, private consultants and other sources.

Before formal appeals, always consider further communication and consensus.  end_mark

References omitted due to space but are available upon request. Click here to email an editor.

PHOTO

Before grazing permits are allocated, permittees are entitled to participate and should be involved in the consultation process. Photo courtesy of University of Idaho.

sarah baker

Sarah Baker

Extension Educator
University of Idaho

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