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May 17, 2010
In Reply Refer To:
6840 (220) P
Instruction Memorandum No. 2010-127
Expires: 9/30/2011
To:                  All Field Officials                     
From:               Assistant Director, Renewable Resources and Planning
Subject:            Conducting Endangered Species Act Section 7 Consultation on Grazing
                         Decisions at the Implementation Level
Program Areas:  Grazing Administration and Threatened and Endangered Species
Purpose:  The purpose of this policy is to clarify the process for issuing grazing permits when Section 7(a)(2) consultation under the Endangered Species Act (ESA) is required.  This policy will help ensure consistency between field offices for designating applicant status as provided in the ESA, and afford applicants appropriate opportunity to comment on and contribute to relevant information throughout the consultation process.  This Instruction Memorandum (IM) is intended to memorialize Solicitor Memorandum M-37022, dated January 16, 2009, to ensure biological assessments (BA) are not decisions and thus not subject to appeal.
Policy/Action: For each grazing decision issued, the authorized officer will determine:  (1) whether consultation in accordance with Section 7 of the ESA is required with the U.S. Fish and Wildlife Service and/or the National Marine Fisheries Service (jointly referred to in this IM as the “Services”) and (2) whether additional analysis pursuant to the National Environmental Policy Act (NEPA) is required. If existing NEPA analysis is adequate and no additional analysis is required to issue the grazing decision, the authorized officer will, where required, prepare a BA in conformance with the procedures set forth in the Bureau of Land Management (BLM) Manual 6840. The BA will be based on an alternative and its analysis in the existing NEPA. If the authorized officer determines that preparation of an environmental assessment or environmental impact statement is required, the BA procedures under ESA Section 7 will be consolidated with the requirements specified under NEPA to the maximum extent possible in accord with Title 50, Code of Federal Regulations (CFR) subpart 402.06. 
Whenever the authorized officer determines that issuing grazing permits requires consultation in accordance with Section 7 of the ESA, the applicant will be notified of the review process and invited to participate in the Section 7 process as an applicant. A sample letter of notification to the applicant is provided (Attachment 1). Processes for conducting consultation are found in Manual Section 6840, Special Status Species Management. The applicant will be afforded an opportunity to provide information for developing an analysis of the effects of the proposal on the listed species.
If NEPA analysis is required, one alternative in the NEPA document would be to graze livestock in accordance with specified terms and conditions developed in coordination with the applicant.  The additional elements specified for inclusion in a BA (see BLM Manual 6840), such as an analysis of effects on listed species, would be integrated into the NEPA document where appropriate.  Additional alternatives would also be developed for analysis in the document. The  environmental analysis (EA) or draft environmental impact statement (EIS)(with the elements of a BA) will be provided for public review, and responses to comments from the public may be incorporated into the document as appropriate. The authorized officer then extracts components that comprise the BA from the revised NEPA document and transmits the BA to the Service in accordance with Section 7 of the ESA. The Service responds to the authorized officer with a Letter of Concurrence (LOC) or a Biological Opinion (BO). After the Service provides the appropriate document (an LOC or BO), the authorized officer will issue a proposed grazing decision in accordance with Title 43 CFR subpart 4160 and final NEPA document. The authorized officer will respond to any protests to the grazing decision that are submitted in a timely manner, and issues a final decision, subject to the administrative review process.  Attachment 2 provides a flow chart illustrating this process.
Timeframe: This policy is effective immediately.
Budget Impact: An undetermined amount of savings could result from avoiding potential duplication of administrative review processes. 
Background:  Under Section 7 of the ESA, the BLM is required to consult with the Services on actions that it permits, licenses, funds, or otherwise authorizes in whole or in part, to ensure that these actions will not jeopardize the continued existence of any listed species if those actions are determined to be action that “May Affect listed species.” The BLM must also confer with the Services on any BLM action that is likely to jeopardize the continued existence of any species proposed for listing or which will result in the adverse modification of proposed critical habitat. As the Action Agency, the BLM is ultimately responsible for the consultation process and for determining the role of the applicant during 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 if the applicant has reason to believe that an endangered species may be present in the area affected by his project and that implementation of such action will likely affect such species. 
The term “applicant” refers to “any person…who requires formal approval or authorization from a Federal agency as a prerequisite to conducting the action” (50 CFR subpart 402.02). The term “person” means an individual, corporation, partnership, trust, association, or any other private entity; or any officer, employee, agent, department, or instrumentality of the Federal Government, of any State, municipality, or political subdivision of a State, or of any foreign government; any State, municipality, or political subdivision of a State; or any other entity subject to the jurisdiction of the United States ESA (Section 3(12)).” 
As the Action Agency, the BLM is responsible for making the determination regarding the need to consult with the Service(s) and to notify the applicant early in the process that a consultation or conference with the Service(s) is required. Additionally, the BLM notifies the applicant that they have a right to be an “applicant” upon their written request to the BLM. Upon receiving the written notice from the applicant, the BLM provides prompt written notification to the Services recognizing an applicant as part of the informal or formal consultation process (refer to http://endangered.fws.gov/consultations/s7hndbk/s7hndbk.htm).
In F. Duane Blake (On Reconsideration, 156 IBLA 280 (2002)), the Interior Board of Land Appeals (Board) reconsidered and affirmed its prior decision in F. Duane Blake, 145 IBLA 154 (1998), concluding that a biological assessment prepared by the BLM under Section 7 of the ESA should be treated as a grazing decision subject to the protest and appeal procedures required by the Taylor Grazing Act and the BLM’s grazing regulations. The Solicitor has reviewed this decision and determined that a BA is not a grazing decision subject to the procedural requirements of the Taylor Grazing Act or the BLM’s grazing regulations (see Attachment 3). 
Manual/Handbook Sections Affected: Manual Section 6840, Special Status Species Management.
Coordination: This policy was coordinated between the Division of Fish, Wildlife and Plant Conservation (WO-230), Division of Decision Support, Planning, and NEPA (WO-210) and the Division of Rangeland Resources (WO-220).
Contact: If you have questions regarding these matters, please contact Robert Roudabush
(WO-220) at 202-912-7222 or Dwight Fielder (WO-230) at 202-912-7230.
Signed by:                                                        Authenticated by:
Richard Hanes                                                  Robert M. Williams
Acting, Assistant Director                                 Division of IRM Governance,WO-560
Renewable Resources and Planning
3 Attachments

Last updated: 05-21-2010