The U.S. Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service (NMFS) have proposed to amend the agencies’ consultation regulations under the Endangered Species Act (ESA), which could streamline projects on forest lands.
If enacted, the U.S. Forest Service (USFS) and Bureau of Land Management (BLM) would not be required to consult with the USFWS or NMFS on previously approved land management plans when new information reveals that effects of a project may affect listed species or critical habitat.
The Federal Land Policy and Management Act of 1976 (FLPMA) and the National Forest Management Act (NFMA) require the “secretaries of the Interior and Agriculture to develop, maintain, and, as appropriate, revise” land management plans and to coordinate such planning with other federal agencies.
Under Section 7 of the ESA, federal agencies are required to reinitiate consultation on land management plans when new information reveals it will affect a protected species or plant. The proposed change will remove this requirement if management plans are prepared according to the FLPMA and NFMA. The proposal states, “New information regarding effects not previously considered in the programmatic biological opinion would be evaluated in a separate consultation in which more site-specific details would be available to better assess any impacts on listed species or critical habitat.”
Aurelia Skipwith, director of USFWS, said in a press release the revisions would both “improve the efficiency of the consultation process” and ensure “important new information that may affect listed species or critical habitat is considered prior to actions being taken.”
The prosed revision was written in response to the 2015 decision by the Ninth Circuit Court in Cottonwood v. United States Forest Service. It ruled the USFS violated the ESA by failing to reinstate consultation with the USFWS at the plan level following the Canada lynx habitat designation after USFWS revised a critical habitat designation.
USFS stated the decision has broad implications that “provide an avenue for [the] challenge of the programmatic consultation for all affected forest plans,” which results in the delay to “completed programmatic actions such as timber sales, livestock grazing permits, and special permits.”
Sen. Steve Daines (R-MT) introduced a bill in June 2020 seeking to overturn the Cottonwood decision, stating a large number of projects have been impacted by notices of intent and lawsuits filed.
“By cutting unnecessary red tape, we will improve the health of our forests, reduce the risk of severe wildfires, advance wildlife habitat projects, and support good-paying timber jobs,” Daines stated in a press release at the time of the bill’s introduction.
John Meyer, attorney for the Cottonwood Environmental Law Center, told the Bozeman Daily Chronicle the proposed revisions suggest that the Trump administration doesn’t think land management plans are essential for the survival of endangered species.
“For the government to say that consultation at the forest plan level doesn’t matter is a lie,” Meyer said.
The Center for Biological Diversity reacted to the proposed decision saying it will lead to “destructive logging, drilling, road building, livestock grazing and other development programs.” Stephanie Kurose, a senior policy specialist at the Center for Biological Diversity, criticized the proposal calling it the “last act of the most anti-wildlife administration in history.” — Charles Wallace, WLJ editor