[Senate Report 117-198]
[From the U.S. Government Publishing Office]
Calendar No. 549
117th Congress } { Report
SENATE
2d Session } { 117-198
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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]