[Senate Report 117-198]
[From the U.S. Government Publishing Office]


                                                     Calendar No. 549
117th Congress      }                           {            Report
                                 SENATE
 2d Session         }                           {            117-198

======================================================================



 
    CONSULTATION ON LAND AND RESOURCE MANAGEMENT PLANS (COTTONWOOD 
                               DECISION)

                                _______
                                

               November 15, 2022.--Ordered to be printed

                                _______
                                

             Mr. Manchin, from the Committee on Energy and
               Natural Resources, submitted the following

                              R E P O R T

                         [To accompany S. 2561]

    The Committee on Energy and Natural Resources, to which was 
referred the bill (S. 2561), to amend the Forest and Rangeland 
Renewable Resources Planning Act of 1974 and the Federal Land 
Policy and Management Act of 1976 to provide that a land 
resource management plan or land use plan approved, amended, or 
revised under those Acts shall not be considered to be a 
continuing Federal agency action or constitute a discretionary 
Federal involvement or control for a distinct Federal purpose, 
and for other purposes, having considered the same, reports 
favorably thereon with amendments and an amendment to the title 
and recommends that the bill, as amended, do pass.

                               Amendment

    The amendments are as follows:
    1. On page 2, line 1, strike ``TREATMENT OF'' and insert 
``CONSULTATION UNDER''.
    2. On page 2, line 5, strike ``PLAN'' and all that follows 
through line 16 and insert the following: ``PLANS.--Section 
6(d) of the Forest and Rangeland Renewable Resources Planning 
Act of 1974 (16 U.S.C. 1604(d)) is amended by striking 
paragraph (2) and inserting the following:
          ``(2) NO ADDITIONAL CONSULTATION REQUIRED AFTER 
        APPROVAL OF LAND MANAGEMENT PLANS.--Notwithstanding any 
        other provision of law, the Secretary shall not be 
        required to reinitiate consultation under section 7 of 
        the Endangered Species Act of 1973 (16 U.S.C. 1536) or 
        section 402.16 of title 50, Code of Federal Regulations 
        (or a successor regulation), on a completed land and 
        resource management plan that has no on-the-ground 
        effects when--
                  ``(A) a new species is listed or a new 
                critical habitat is designated under that Act 
                (16 U.S.C. 1531 et seq.); or
                  ``(B) new information reveals effects of the 
                land and resource management plan that may 
                affect a species listed or critical habitat 
                designated under that Act in a manner or to an 
                extent not previously considered.''.
    3. Beginning on page 2, strike line 21 and all that follows 
through page 3, line 2, and insert the following:
    ``(g) NO ADDITIONAL CONSULTATION REQUIRED AFTER APPROVAL OF 
LAND USE PLANS.-- Notwithstanding any other provision of law, 
the Secretary shall not be required to reinitiate consultation 
under section 7 of the Endangered Species Act of 1973 (16 
U.S.C. 1536) or section 402.16 of title 50, Code of Federal 
Regulations (or a successor regulation), on a completed land 
use plan that has no on-the-ground effects when--
         ``(1) a new species is listed or a new critical 
        habitat is designated under that Act (16 U.S.C. 1531 et 
        seq.); or
          ``(2) new information reveals effects of the land use 
        plan that may affect a species listed or critical 
        habitat designated under that Act in a manner or to an 
        extent not previously considered.''.
    4. Amend the title so as to read: ``A bill to amend the 
Forest and Rangeland Renewable Resources Planning Act of 1974 
and the Federal Land Policy and Management Act of 1976 to 
provide for circumstances under which re-initiation of 
consultation is not required under a land and resource 
management plan or land use plan under those Acts, and for 
other purposes.''.

                                Purpose

    The purpose of S. 2561, as ordered reported by the 
Committee, is to amend the Forest and Rangeland Renewable 
Resources Planning Act of 1974 and the Federal Land Policy and 
Management Act of 1976 to provide for circumstances under which 
re-initiation of consultation is not required under a land and 
resource management plan or land use plan under those Acts.

                          Background and Need

    Section 6 of the Forest and Rangeland Renewable Resources 
Planning Act of 1974 (as renumbered and amended by the National 
Forest Management Act of 1976; 16 U.S.C. 1604) requires the 
Secretary of Agriculture to ``develop, maintain, and, as 
appropriate revise land and resource management plans,'' 
commonly known as forest plans, for individual units of the 
National Forest System. Forest plans are broad planning 
documents that are used to guide the long-term management of 
National Forests. They generally do not authorize site-specific 
on-the-ground projects, such as road building or timber 
cutting. Before proceeding with site-specific projects, the 
Forest Service must, among other things, ensure that the 
proposed project is consistent with the forest plan, conduct 
the environmental analysis required by the National 
Environmental Policy Act (NEPA), and ensure that the proposed 
project is consistent with the Endangered Species Act (ESA).
    Similarly, section 202 of the Federal Land Policy and 
Management Act of 1976 (43 U.S.C. 1712) requires the Secretary 
of the Interior to ``develop, maintain, and, when appropriate, 
revise land use plans,'' called resource management plans, for 
public lands management by Bureau of Land Management (BLM). 
Like forest plans, resource management plans are broad planning 
documents, which generally do not authorize site-specific on-
the-ground projects. Additional environmental analysis and 
implementing decisions are needed to authorize specific 
projects that have on-the-ground effects.
    Section 7 of the ESA requires Federal agencies to consult 
with the U.S. Fish and Wildlife Service (FWS) when their 
discretionary actions may affect either a species listed under 
the ESA or the designated critical habitat for those species 
(16 U.S.C. 1536). FWS regulations implementing the ESA (50 
C.F.R. 402.16) establish four triggers that require a land 
management agency to re-initiate consultation with the FWS 
regarding an ongoing action on which the agency previously 
consulted. Agencies must reinitiate consultation if one of the 
following conditions is met:
           The amount or extent of taking specified in 
        the incidental take statement is exceeded.
           New information reveals effects of the 
        action that may affect listed species or critical 
        habitat in a manner or to an extent not previously 
        considered.
           The identified action is subsequently 
        modified in a manner or to an extent that causes an 
        effect to the listed species or critical habitat not 
        previously considered in the biological opinion.
           A new species is listed or critical habitat 
        is designated that may be affected by the identified 
        action.
    Considerable confusion has arisen over whether the Forest 
Service and the BLM are required to reinitiate consultation 
with the FWS and amend previously approved forest or resource 
management plans when one of the four triggers is met. The 
confusion has arisen primarily in cases involving the Canada 
lynx.
    The FWS listed the Canada lynx as a threatened species 
under the ESA in 2000. 65 Fed. Reg. 16052 (Mar. 24, 2000) 
(final rule); 68 Fed. Reg. 40076 (July 3, 2003) (rule 
clarification). In 2006, the FWS designated 1,841 square miles 
of land as critical habitat for the Canada lynx. 71 Fed. Reg. 
66007 (Nov. 9, 2006). Even though none of the originally 
designated critical habitat was within the national forests, 
the Forest Service initiated consultation with the FWS and 
amended the forest plans for 18 national forests to incorporate 
management directions intended to conserve and promote the 
recovery of the Canada lynx. In March 2007, the FWS issued a 
biological opinion that determined that the Forest Service's 
lynx amendments did not jeopardize the Canada lynx.
    Meanwhile, in 2003, Forest Guardians and other 
environmental groups sued the Forest Service to compel it to 
consult with the FWS on whether the forest plans for the Carson 
and Santa Fe National Forests jeopardized the Canada lynx. In 
2005, the federal district court dismissed the suit on the 
grounds that the Carson and Santa Fe National Forests are 
located entirely within the State of New Mexico, and the FWS 
had not listed the Canada lynx as threatened in New Mexico. 
Forest Guardians v. Forsgren, 2005 U.S. Dist. LEXIS 60778 
(D.N.M. 2005).
    On appeal, the Tenth Circuit Court of Appeals affirmed the 
district court's decision that the Forest Service was not 
required to consult with the FWS on the Carson and Santa Fe 
forest plans. The Tenth Circuit reasoned that the forest plans 
were not ongoing agency actions that triggered the duty to 
consult the FWS under section 7 of the ESA. Forest Guardians v. 
Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
    In July 2007, four months after the Tenth Circuit upheld 
the Forest Service's decision not to consult on the Carson and 
Santa Fe forest plans, the FWS announced that it was reviewing 
its critical habitat designation for the Canada lynx ``after 
questions were raised about the integrity of scientific 
information used and whether the decision was consistent with 
the appropriate legal standards.'' 74 Fed. Reg. 8616, 8618 
(Feb. 25, 2009). Based on that review, in February 2009, the 
FWS ``determined that the critical habitat designation had been 
improperly influenced . . . and, as a result, may not be 
supported by the record, may not be adequately explained, or 
many not comport with the best available scientific and 
commercial information.'' Id. It then revised its critical 
habitat designation, increasing it from 1,841 square miles to 
39,000 square miles, including lands within 11 national 
forests. The Forest Service declined to reinitiate consultation 
with the FWS on its forest plans based on the new critical 
habitat designation.
    In 2012, the Cottonwood Environmental Law Center 
(Cottonwood) sued the Forest Service in the U.S. District Court 
for the District of Montana (which is in the Ninth Circuit 
rather than the Tenth Circuit), alleging that the Forest 
Service violated the ESA by failing to reinitiate consultation. 
The district court held that a forest plan is an ongoing agency 
action and that the revised critical habitat designations thus 
required the Forest Service to reinitiate consultation. 
Nonetheless, the court declined to enjoin any specific forest 
projects. Salix v. U.S. Forest Service, 944 F. Supp. 984 (D. 
Mont. 2013). Both Cottonwood and the Forest Service appealed.
    On appeal, the Ninth Circuit Court of Appeals held that the 
Forest Service was required to reinitiate consultation when the 
FWS designated critical habitat in the 11 national forests. 
Cottonwood Environmental Law Center v. U.S. Forest Service, 789 
F.3d 1075, 1085, 1088 (9th Cir. 2015). The court reasoned that 
the FWS's revised critical habitat designation in 2009 
triggered the Forest Service's duty to reinitiate consultation 
of the lynx amendments to the affected forest plans. Although 
it did not adopt the district court's holding that a forest 
plan is an ``ongoing agency action,'' it held that ``even if an 
agency action is complete and not `ongoing,' the agency still 
may be required to reinitiate consultation if there is 
`discretionary Federal involvement or control' over the 
completed action.'' Id. at 1086 n.12. The court concluded that 
since the Forest Service retains ongoing regulatory authority 
and discretionary control over its forest plans, it has a 
continuing obligation to follow the consultation requirements 
of the ESA. Id. at 1087.
    The Forest Service asked the Supreme Court to review the 
Ninth Circuit decision. In the Government's brief for the 
Forest Service, the Solicitor General framed the question 
presented by the case as ``[w]hether section 7(a)(2) of the ESA 
requires the Forest Service to reinitiate consultation on a 
completed programmatic agency action that has no on-the-ground 
effects when a new species is listed or new critical habitat is 
designated.'' The Solicitor General argued that it does not, 
since ``[t]he adoption, amendment, or revision of a forest 
plan, once finalized, is a completed agency action,'' not an 
ongoing one. He argued that the Forest Service will have to 
consult with the FWS before ``any ground-disturbing activities 
may occur,'' but further consideration of forest plan 
amendments to protect the Canada lynx are best deferred until 
the Forest Service applies the amendments to specific projects 
with ``on-the-ground effects.''
    In addition, the Solicitor General argued that the Ninth 
Circuit's Cottonwood decision ``directly conflicts''' with the 
Tenth Circuit's decision in Forest Guardians that consultation 
was not required. ``The Ninth Circuit's decision, if allowed to 
stand,'' the Solicitor General warned, ``would impose 
substantial burdens on'' the Forest Service and the BLM, by 
``divert[ing] scarce public resources to the fulfillment of 
potentially cumbersome procedural measures that . . . [are] 
unnecessary to achieve compliance with the ESA.''
    The Supreme Court declined to review the case, and left 
standing the Ninth Circuit's decision and the split between the 
Ninth and Tenth Circuit. Cottonwood Environmental Law Center v. 
U.S. Forest Service, 580 U.S. 916 (2016).
    Congress has tried to address the concerns raised by the 
Cottonwood decision before. Section 208 of the Wildfire 
Suppression Funding and Forest Management Activities Act 
(Division O of the Consolidated Appropriations Act, 2018 
(Public Law 115-141)) amended section 6(d) of the Forest and 
Rangeland Renewable Resources Planning Act of 1974 to provide a 
limited exception from the requirement to reinitiate 
consultation imposed by the Cottonwood decision. As amended in 
2018, section 6(d)(2) of the Planning Act now provides that the 
Secretary of Agriculture ``shall not be required to engage in 
consultation'' under section 7 of the ESA or section 402.16 of 
title 50, Code of Federal Regulations (relating to the triggers 
requiring reinitiation of consultation) based on ``the listing 
of a species as threatened or endangered, or a designation of 
critical habitat'' (one of the four triggers in 50 C.F.R. 
402.16), ``if a land management plan has been adopted . . . as 
of the date of listing or designation,'' and not more than 15 
years have passed since the plan was adopted and not more than 
5 years have passed since the date of enactment of section 208 
or the listing or designation, whichever is later. 16 U.S.C. 
1604(d)(2).
    Similarly, section 209 of the Wildfire Suppression Funding 
and Forest Management Activities Act provided that the BLM is 
not required to engage in consultation on resource management 
plans for certain lands when a new species is listed or 
critical habitat is designated. But section 209 only applies to 
Oregon and California grant land revested in the United States 
and Coos Bay Wagon Road grant lands reconveyed to the United 
States, and not to other resource management plans for other 
public lands managed by the BLM.
    Thus, the 2018 amendments afford only limited protection. 
They do not apply to the vast majority of the public lands 
managed by the BLM, and they do not provide an exception from 
the duty to reinitiate consultation when new information 
reveals effects of a plan that may affect a listed species or 
critical habitat in a manner or to an extent not previously 
considered (i.e., the second trigger in 50 C.F.R. 
402.16(a)(2)). Instead, the 2018 amendments only afford a safe 
harbor when a new species is listed or new critical habitat is 
designated (i.e., the fourth trigger in 50 C.F.R. 
402.16(a)(4)). Additionally, beginning in March 2023 (5 years 
after enactment of Public Law 115-141), this limited safe 
harbor will no longer apply on forests with out-of-date forest 
plans.
    Since enactment of the 2018 amendments, no lawsuits have 
been brought against the Forest Service or BLM for not 
reinitiating consultation after a new listing or critical 
habitat designation. But over two dozen lawsuits have been 
filed, and several have been successfully litigated, pertaining 
to one of the other reinitiation triggers. Further, over 50 
Notices of Intent to Sue have also been filed, some implicating 
over one hundred projects. These lawsuits and threats of 
lawsuits have stopped all forest management projects from 
proceeding on several national forests, delaying significant 
numbers of both timber harvesting and fire prevention projects 
and in some instances subsistence firewood gathering. The 
Forest Service testified that ``[t]he Cottonwood decision 
remains a source of litigation and continues to be of concern'' 
to the Department of Agriculture, and that the issue ``needs to 
be addressed.''

                          Legislative History

    S. 2561 was introduced by Senators Daines and Risch on July 
29, 2021. Senator Crapo and Senator Tester were added as 
cosponsors. The Committee on Energy and Natural Resources held 
a hearing on S. 2561 on October 21, 2021.
    Senator Daines introduced similar legislation in 114th, 
115th, and 116th Congress. Senator Daines and Tester introduced 
S. 3533 (114th Cong.) on December 8, 2016, and S. 605 (115th 
Cong.) on March 9, 2017. Senators Risch and Crapo were later 
added as cosponsors on S. 605. Senator Daines also introduced 
S. 3292 (115th Cong.) on July 26, 2018. Senator Daines, Risch, 
Crapo, and Cramer introduced S. 4057 (116th Cong.) on June 24, 
2020. All four bills introduced in the prior Congresses were 
referred to the Committee on Environment and Public Works. It 
held a hearing on S. 605 on September 27, 2017 (S. Hrg. 115-
112). The Committee on Environment and Public Works took no 
other action on S. 605 or the other 3 bills.
    Similar legislation was also introduced in the House of 
Representatives in the 114th and 115th Congresses. Rep. Zinke 
introduced H.R. 6528 (114th Cong.) on December 12, 2016. Rep. 
Simpson introduced H.R. 1483 (115th Cong.) on March 9, 2017. 
Rep. Gianforte introduced H.R. 6567 (115th Cong.) on July 26, 
2018. Each of the three bills were jointly referred to the 
Committee on Natural Resources and the Committee on 
Agriculture. No further action was taken on any of the House 
bills.

                        Committee Recommendation

    The Senate Committee on Energy and Natural Resources, in an 
open business session on July 21, 2022, by a voice vote of a 
quorum present, recommends that the Senate pass S. 2561, if 
amended as described herein.

                          Committee Amendments

    The Committee adopted four amendments during its 
consideration of S. 2561. The first clarifies the section 
heading.
    The second amendment strikes the text of the amendment to 
the Forest and Rangeland Renewable Resources Planning Act 
proposed by section 1(a) of the bill as introduced and inserts 
new text. As introduced, S. 2561 retained section 6(d)(2) of 
the Planning Act, which was added by the Consolidated 
Appropriations Act, 2018, and added at the end of section 6 a 
new subsection (n), which would have provided that approved 
forest plans are not ``(1) to be considered to be a continuing 
Federal agency action,'' which was the basis of the district 
court's Cottonwood holding, or ``(2) constitute a discretionary 
Federal involvement or control for a distinct Federal 
purpose,'' the basis of the Ninth Circuit's Cottonwood holding. 
The second the committee amendment repeals section 6(d)(2) 
(which was added in 2018) and inserts in its place a new 
paragraph (2) that provides that the Secretary of Agriculture 
shall not be required to reinitiate consultation on a completed 
forest plan that has ``no on-the-ground effects'' when a new 
species is listed, new critical habitat is designated, or new 
information reveals effects not previously considered. The ``no 
on-the-ground effects'' language proposed by the committee 
amendment is taken from the Solicitor General's petition for a 
writ of certiorari in the Cottonwood case.
    The third amendment is similar to the second. Subsection 
1(b) of the bill as introduced proposed to add a new subsection 
(g) to section 202 of the Federal Land Policy and Management 
Act of 1976. The new subsection (g) would have provided that 
BLM resource management plans ``shall not (1) be considered to 
be a continuing Federal agency action; or (2) constitute a 
discretionary Federal involvement or control for a distinct 
Federal purpose.'' The committee amendment strikes the text 
proposed by the bill as introduced and inserts in its place a 
new subsection (g) that provides that the Secretary of the 
Interior shall not be required to reinitiate consultation on a 
completed resource management plan that have ``no on-the-ground 
effects'' when a new species is listed, new critical habitat is 
designated, or new information reveals effects not previously 
considered.
    Finally, the Committee adopted an amendment to the title to 
more accurately reflect the contents of the bill as proposed to 
be amended by the committee amendments.

                      Section-by-Section Analysis


Section 1. Consultation Under Certain Land and Resource Management 
        Plans and Land Use Plans.

    Subsection (a) amends the Forest and Rangeland Renewable 
Resources Planning Act of 1974 to state that when a new species 
is listed as endangered or a new critical habitat is 
designated, or new information is revealed that has not been 
previously considered, the Secretary is not required to 
reinitiate consultation as required under section 7 of the 
Endangered Species Act if the completed land and resource 
management plan has no on-the-ground effects.
    Subsection (b) amends the Federal Land Policy and 
Management Act of 1976 to state that when a new species is 
listed as endangered or a new critical habitat is designated, 
or new information is revealed that has not been previously 
considered, the Secretary is not required to reinitiate 
consultation as required under section 7 of the Endangered 
Species Act if the completed land use plan has no on-the-ground 
effects.

                   Cost and Budgetary Considerations

    The Committee has requested, but has not yet received, the 
Congressional Budget Office's estimate of the cost of S. 2561, 
as ordered reported. When the Congressional Budget Office 
completes its cost estimate, it will be posted at www.cbo.gov.

                      Regulatory Impact Evaluation

    In compliance with paragraph 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee makes the following 
evaluation of the regulatory impact which would be incurred in 
carrying out S. 2561. The bill is not a regulatory measure in 
the sense of imposing Government-established standards or 
significant economic responsibilities on private individuals 
and businesses. No personal information would be collected in 
administering the program. Therefore, there would be no impact 
on personal privacy. Little, if any, additional paperwork would 
result from the enactment of S. 2561, as ordered reported.

                   Congressionally Directed Spending

    S. 2561, as ordered reported, does not contain any 
congressionally directed spending items, limited tax benefits, 
or limited tariff benefits as defined in rule XLIV of the 
Standing Rules of the Senate.

                        Executive Communications

    The testimony provided by the U.S. Forest Service and the 
testimony provided by the Bureau of Land Management at the 
October 21, 2021, hearing on S. 2561 follow:

Statement of Christopher French, Deputy Chief, National Forest System, 
      United States Department of Agriculture, U.S. Forest Service

S. 2561
    S. 2561 provides that land resource management plans that 
have been approved, amended, or revised under the Forest and 
Rangeland Renewable Resources and Planning Act of 1974 (16 
U.S.C. 1604), and land use plans approved, amended, or revised 
under the Federal Land Policy and Management Act of 1976 (43 
U.S.C. 1712), are not considered continuing Federal agency 
actions. The bill provides further that land resource 
management plans or land use plans approved, amended or revised 
under those acts do not constitute a discretionary Federal 
involvement or control for a distinct Federal purpose.
    This question about the status of plans as continuing 
agency actions was central to the Ninth Circuit's decision in 
Cottonwood Environmental Law Center v. United States Forest 
Service, 789 F.3d 1075 (9th Cir. 2015), in which the court 
found the Forest Service retains discretionary involvement or 
control over a forest plan after its approval. The Cottonwood 
decision remains a source of litigation and continues to be an 
issue of concern for USDA. USDA realizes this is an issue that 
needs to be addressed and is working together with DOI towards 
a solution. We would like to continue to work with the 
Committee and bill sponsors to resolve this issue and to 
address concerns with the bill.
                              ----------                              


 Statement of Jeffery Rupert, Director, Office of Wildland Fire, U.S. 
                       Department of the Interior

S. 2561, a Bill To Amend the Forest and Rangeland Renewable Resources 
        Planning Act of 1974 and the Federal Land Policy and Management 
        Act of 1976
    S. 2561 amends the Federal Land Policy and Management Act 
and the Forest and Rangeland Renewable Resources Planning Act 
so that an approved, amended, or revised land use plan would 
not be considered a continuing Federal agency action.
    The Department appreciates the sponsor's intent to clarify 
the circumstances by which consultation on approved land use 
plans is required. We realize this is an issue that needs to be 
addressed and are working together with USDA towards a 
solution. We are concerned that the bill as currently written 
is overly broad and could have unintended consequences.
    We are committed to finding a collaborative, science-based 
approach to conserving wildlife and managing our public lands 
and forests and would like to work with the sponsors and the 
Committee to address these issues.

                        Changes in Existing Law

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
the bill S. 2651, as ordered reported, are shown below 
(existing law proposed to be omitted is enclosed in black 
brackets, new matter is printed in italic, existing law in 
which no change is proposed is shown in roman):

     FOREST AND RANGELAND RENEWABLE RESOURCES PLANNING ACT OF 1974

                           Public Law 93-378


                             93rd Congress


AN ACT To provide for the Forest Service, Department of Agriculture, to 
  protect, develop, and enhance the productivity and other values of 
certain of the Nation's lands and resources, and for other purposes.

           *       *       *       *       *       *       *


    Sec. 6. National Forest System Resource Planning.--(a) As a 
part of the Program provided for by section 4 of this Act, the 
Secretary shall develop, maintain, and, as appropriate, revise 
land and resource management plans for units of the National 
Forest System, coordinated with the land and resource 
management planning processes of State and local governments 
and other Federal agencies.

           *       *       *       *       *       *       *

    (d) Public Participation and Consultation.--
          (1) In general.--The Secretary shall provide for 
        public participation in the development, review, and 
        revision of land management plans including, but not 
        limited to, making the plans or revisions available to 
        the public at convenient locations in the vicinity of 
        the affected unit for a period of at least three months 
        before final adoption, during which period the 
        Secretary shall publicize and hold public meetings or 
        comparable processes at locations that foster public 
        participation in the review of such plans or revisions.
          [(2) No additional consultation required after 
        approval of land management plans.--
                  (A) In general.--Except as provided in 
                subparagraph (B), notwithstanding any other 
                provision of law, the Secretary shall not be 
                required to engage in consultation under this 
                section or any other provision of law 
                (including section 7 of Public Law 93-205 (16 
                U.S.C. 1536) and section 402.16 of title 50, 
                Code of Federal Regulations (or a successor 
                regulation)) with respect to--
                          (i) the listing of a species as 
                        threatened or endangered, or a 
                        designation of critical habitat 
                        pursuant to Public Law 93-205 (16 
                        U.S.C. 1531 et seq.), if a land 
                        management plan has been adopted by the 
                        Secretary as of the date of listing or 
                        designation; and
                          (ii) any provision of a land 
                        management plan adopted as described in 
                        clause (i).
                  (B) Exception.--Subparagraph (A) shall not 
                apply if--
                          (i) 15 years have passed since the 
                        date on which the Secretary adopted the 
                        land management plan described in 
                        clause (i) of that subparagraph; and
                          (ii) 5 years have passed since the 
                        date of enactment of this section or 
                        the date of the listing of a species as 
                        threatened or endangered for a species 
                        known to occur on the unit or the 
                        designation of critical habitat within 
                        the unit as described in clause (i) of 
                        that subparagraph, whichever is later.
                  (C) Effect of paragraph.--Nothing in this 
                paragraph affects any applicable requirement of 
                the Secretary to consult with the head of any 
                other Federal department or agency--
                          (i) regarding any project carried 
                        out, or proposed to be carried out, to 
                        implement a land management plan 
                        pursuant to Public Law 93-205 (16 
                        U.S.C. 1531 et seq.), including any 
                        requirement to consult regarding the 
                        consideration of cumulative impacts of 
                        completed, ongoing, and planned 
                        projects; or
                          (ii) with respect to--
                                  (I) the development of a 
                                modification to a land 
                                management plan; or
                                  (II) an amendment or revision 
                                to a land management plan in 
                                accordance with paragraph (4) 
                                or (5) of subsection (f).]
          (2) No additional consultation required after 
        approval of land management plans.--Notwithstanding any 
        other provision of law, the Secretary shall not be 
        required to reinitiate consultation under section 7 of 
        the Endangered Species Act of 1973 (16 U.S.C. 1536) or 
        section 402.16 of title 50, Code of Federal Regulations 
        (or a successor regulation), on a completed land and 
        resource management plan that has no on-the-ground 
        effects when--
                  (A) a new species is listed or a new critical 
                habitat is designated under that Act (16 U.S.C. 
                1531 et seq.); or
                  (B) new information reveals effects of the 
                land and resource management plan that may 
                affect a species listed or critical habitat 
                designated under that Act in a manner or to an 
                extent not previously considered.

           *       *       *       *       *       *       *


             FEDERAL LAND POLICY AND MANAGEMENT ACT OF 1976

                           Public Law 94-579


                             94th Congress


AN ACT To establish public land policy; to establish guidelines for its 
administration; to provide for the management, protection, development, 
and enhancement of the public lands; and for other purposes.

           *       *       *       *       *       *       *


                           LAND USE PLANNING

    Sec. 202. (a) The Secretary shall, with public involvement 
and consistent with the terms and conditions of this Act, 
develop, maintain, and, when appropriate, revise land use plans 
which provide by tracts or areas for the use of the public 
lands. Land use plans shall be developed for the public lands 
regardless of whether such lands previously have been 
classified, withdrawn, set aside, or otherwise designated for 
one or more uses.

           *       *       *       *       *       *       *

    (g) No Additional Consultation Required After Approval of 
Land Use Plans.--Notwithstanding any other provision of law, 
the Secretary shall not be required to reinitiate consultation 
under section 7 of the Endangered Species Act of 1973 (16 
U.S.C. 1536) or section 402.16 of title 50, Code of Federal 
Regulations (or a successor regulation), on a completed land 
use plan that has no on-the-ground effects when--
          (1) a new species is listed or a new critical habitat 
        is designated under that Act (16 U.S.C. 1531 et seq.); 
        or
          (2) new information reveals effects of the land use 
        plan that may affect a species listed or critical 
        habitat designated under that Act in a manner or to an 
        extent not previously considered.

           *       *       *       *       *       *       *


                                  [all]