Programmatic Consultations

The US Fish and Wildlife Service (Service) listed the white bark pine as threatened in December of 2023. This followed a change in November to the status of the northern long-eared bat from threatened to endangered. (The effective date of that change has been delayed until March 31, 2023.)

Both species are relatively widespread, and widespread species pose unique challenges for consultation under section 7 of the Endangered Species Act (Act) because there are often more opportunities for federal actions to meet the threshold of “may affect” for the species. A may affect determination requires a consultation under 7(a)(2) of the Act, and even if the eventual result of these consultations is a determination that the federal action will have minimal effects to the species, it can still represent a substantial workload for federal agencies and the Service. If past experience is any guide, the Service and action agencies will likely explore the possibility of establishing consultations that are programmatic for white bark pine and northern long-eared bats. Programmatic consultations are a special type of consultation that encompasses a program of work rather than just a single action. They can create efficiencies and reduce the timelines for moving projects through consultation. Also, effects can be examined at a larger scale and beneficial conservation elements can be added more easily.

Though the development and use of programmatic consultations has been part of the consultation practice for at least 35 years, guidance on how to approach these programmatic consultations has been minimal. This has resulted in many non-standard approaches to construction and to naming conventions for programmatics - creating a good deal of confusion over the subject. To make matters worse, as I saw when I was a national instructor for the Service, most consultation training has so much other material to cover that programmatic consultations typically receive only a few minutes of explanation and discussion.

For all these reasons, I am building a course dedicated to clearing some of the confusion around these programmatic approaches and describing a process that action agencies and the Services can use to make them more likely to succeed. Later in March I hope to announce the future dates for the pilot offering of this course. If you’d like more details and the opportunity to offer your thoughts regarding a course such as this, please visit the Essentials of Programmatic Consultations section of our Courses Page.

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