Full opinion text
ORDER ADOPTING IN PART, AND DECLINING TO ADOPT IN PART, THE REPORT AND RECOMMENDATION MARTINEZ, District Judge. This matter is now before the Court for consideration of the Report and Recommendation filed by the Honorable Mary Alice Theiler, United States Magistrate Judge, on March 28, 2006. Dkt. # 86. The Court has reviewed the Report and Recommendation, the parties’ objections and responses, and the balance of the file, and now finds and rules as follows: (1) The thorough and well — reasoned Report and Recommendation is approved and adopted, except as to the conclusions in section F.l, regarding plaintiffs’ challenge under the National Environmental Policy Act (“NEPA”), and all of section F.2, in which the Magistrate Judge concluded that the Final Supplemental Environmental Impact Statement (“FSEIS”) did not fail to disclose dissenting opinions. For the reasons set forth in paragraph (2) below, the Court finds that the FSEIS failed to meet NEPA standards for assessing significant aquatic habitat impacts, and for the disclosure of dissenting scientists’ views. (2) NEPA Challenges to FSEIS (a) Standard of Review The National Environmental Policy Act imposes procedural, rather than substantive, requirements. Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 375, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). Pursuant to NEPA, federal agencies must prepare an environmental impact statement (“EIS”) for “major Federal action [ ] significantly affecting the environment.” 42 U.S.C. § 4332(2)(c). The Court reviews an agency’s compliance with NEPA under the Administrative Procedure Act (“APA”). Id. The Court applies a “rule of reason” standard to determine whether the EIS contains a “reasonably thorough discussion of the significant aspects of the probable environmental consequences.” Center for Biological Diversity v. USFS, 349 F.3d 1157, 1166 (9th Cir.2003) (internal citations omitted). This standard is essentially applied in the same manner as the arbitrary and capricious standard. Id. Judicial review consists of ensuring that an agency has taken a “hard look” at the environmental effects of the proposed action. Idaho Conservation League v. Mumma, 956 F.2d 1508, 1519 (9th Cir. 1992). NEPA has two stated objectives. “First, it places upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action. Second, it ensures that the agency will inform the public that it has indeed considered environmental concerns in its decisionmaking process.” Baltimore Gas & Electric Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 97, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983) (internal citations omitted). In considering a NEPA challenge, the court “may not substitute its judgment for that of the agency concerning the wisdom or prudence of a proposed action.” Laguna Greenbelt, Inc., v. U.S. Department of Transportation, 42 F.3d 517, 523 (9th Cir.1994) (quoting Oregon Environmental Council v. Kunzman, 817 F.2d 484, 492 (9th Cir.1987)). Under the “rule of reason,” the court determines whether the [EIS] contains a reasonably thorough discussion of the significant aspects of the probable environmental consequences’ by making ‘a pragmatic judgment whether the [EIS’s] form, content and preparation foster both informed decision-making and informed public participation.’ ” Id., quoting Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346, 1356 (9th Cir.1994). In interpreting NEPA, the court gives substantial deference to the regulations issued by the Council on Environmental Quality (“CEQ”), and both NEPA and the regulations are to be strictly interpreted. Center for Biological Diversity, 349 F.3d at 1166. “Grudging, pro forma, compliance will not do.” California v. Block, 690 F.2d 753, 769 (9th Cir.1982). Because amendment to the Aquatic Conservation Strategy (“ACS”) is a “federal action significantly affecting the environment,” the Forest Service (FS) and Bureau of Land Management (BLM) were required to comply with NEPA and to prepare an Environmental Impact Statement. 42 U.S.C. § 4332(2)(C). The agencies released their FSEIS in October 2003. As in the 1994 FSEIS, the 2003 FSEIS contained viewpoints of a collection of respected scientists who were part of the government’s Forest Ecosystem Management Assessment Team (“FEMAT”). Plaintiffs’ complaint alleges NEPA violations under three categories: (1) the FSEIS failed to assess the significant aquatic habitat impacts of the amendment; (2) the FSEIS failed to disclose and discuss dissenting views of respected scientists; and (3) the FSEIS failed to provide a candid, objective assessment of reasonable alternatives. The Court shall address arguments (1) and (2), which correspond to sections F.l and F.2 in the Report and Recommendation. The Court adopts without alteration section F.3 of the Report and Recommendation, addressing argument (3), the assessment of reasonable alternatives. (b) Assessment of Significant Aquatic Habitat Impact The Court fully adopts, without restating, the discussion set forth in the Report and Recommendation at pages 29 to 34, line 16, regarding the NEPA requirement that an EIS must disclose any indirect effects, and consider “every significant aspect of the environmental impact of a proposed action....” Kern v. Bureau of Land Management, 284 F.3d 1062, 1066 (9th Cir.2002). In concluding that section, the Magistrate Judge noted that the federal defendants’ “blithe assertion that the amendments to the ACS impose no fundamental changes is troublesome.” Nevertheless, she concluded, it is not clear to the undersigned in what respects the 1994 FSEIS did not adequately address impacts, cumulative or otherwise, on the programmatic level even in light of the amendments to the ACS. Nor is it clear that subsequent site-specific consultations will not adequately assess such impacts. Without such a showing, it cannot be said that the 2003 FSEIS arbitrarily and capriciously tiered to the extensive assessment in the 1994 FSEIS. , Report and Recommendation, p. 35. Plaintiffs’ objections have persuaded the Court that this conclusion must be revised. The 2003 FSEIS states, with respect to the environmental consequences of the proposed ACS amendment, The proposed amendment has the potential to affect agency success implementing the timber sale program envisioned under the Northwest Forest Plan. Timber sales are needed to achieve the so-cio-economic and ecosystem management goals of the Northwest Forest Plan. The degree to which current PSQs may be attained is the primary indicator for agency success in this regard. As discussed under Affected Environment, the agencies have not been able to achieve the level of timber sales predicted for the Northwest Forest Plan. The Northwest Forest Plan assumed that 90 percent of the early decades PSQ would come from late-successional and old-growth forest, much of it through regeneration harvest. However, given the court interpretations of the ACS in the PCFFA litigation, the PSQ cannot be sustained, because few timber sales can be designed to avoid all disturbance to aquatic and/or riparian components. For instance, timber harvest removes canopy and exposes some land to accelerated erosion. Road work associated with the timber sales may result in short-term sedimentation. In the PCFFF litigation, the court considered these types of effects incompatible with achieving ACS objectives. 2003 FSEIS, pp. 49-50 (emphasis added). With these two sentences, the FSEIS describes the habitat-degrading effects of the activities that were not allowed under the previous ACS, but could go forward under the amended ACS. Both FEMAT and the NFP contemplate that projects must be consistent with ACS objectives. Previously, to meet ACS objectives, the Forest Service needed to ensure that road densities and the total amount of a watershed in clearcut condition would not alter runoff and erosion patterns to the detriment of water quality and fish survival. Because the ACS amendment eliminates this requirement, the impacts of that change must be fully assessed. As stated recently by this Court, where an agency has previously made a policy choice to conform to a particular standard, and now seeks to amend that standard, “the Agencies have an obligation under NEPA to disclose and explain on what basis they deemed the standard necessary before but assume it is not now.” Northwest Ecosystem Alliance v. Rey, 380 F.Supp.2d 1175, 1192 (W.D.Wash.2005). Under this reasoning, the 2003 FSEIS assessment of the impact of the ACS amendment is inadequate and fails to conform to NEPA standards. (c) Disclosure of Dissenting Views Regulations governing the adequacy of an EIS require that opposing scientific views be disclosed and discussed at appropriate points. The relevant regulation specify that in a draft EIS, the agency “shall make every effort to disclose and discuss at appropriate points ... all major points of view on the environmental impacts of the proposed action”. 40 C.F.R. § 1502.9(a). Then, in the final EIS, the agency “shall discuss at appropriate points ... any responsible opposing view which was not adequately discussed in the draft statement and shall indicate the agency’s response to the issues raised.” 40 C.F.R. § 1502.9(b). “NEPA requires that the agency candidly disclose in its EIS the risks of its proposed action, and that it respond to adverse opinions held by respected scientists.” Seattle Audubon Society v. Moseley, 798 F.Supp. 1473, 1482 (W.D.Wash. 1992); affirmed, 998 F.2d 699 (9th Cir. 1993). An EIS violates NEPA where it fails to “disclose and discuss the responsible opposing views.” Center for Biological Diversity v. Forest Service, 349 F.3d at 1169. The Report and Recommendation concluded that plaintiffs did not demonstrate that the 2003 FSEIS failed to disclose and discuss those opinions as required by NEPA. As set forth below, plaintiffs’ objections to the Report and Recommendation have persuaded the Court that the FSEIS does not properly disclose and discuss the views of dissenting scientists, and therefore is inadequate under NEPA. The Court is not required to decide whether the EIS is based on the best scientific methodology available, or to resolve disagreements among experts. Instead, the Court’s task is to ensure that the procedure followed resulted in a reasoned analysis of the evidence. Seattle Audubon Society v. Moseley, 798 F.Supp. 1473 (W.D.Wash.1992) (finding that the Forest Service was required to address in the FEIS scientific criticisms opposing evidence on which the final strategy was based). See also Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989) (NEPA “prohibits uninformed — rather than unwise — agency action.”). Here, plaintiffs contend that respected scientists expressed dissenting scientific viewpoints regarding the environmental impacts of the ACS amendment. This assertion is based on the fact that beginning in January, 2003, the Forest Service sought input from FEMAT members as to the intent behind the ACS, and submitted a questionnaire to these scientists. Some of the responses reflected the scientists’ disagreement with the assertion that the amended ACS would be consistent with the original objectives of the ACS, particularly as to the requirement that projects be consistent with the ACS at the site, watershed, and landscape scales. Administrative Record, FS/BLM at 2251, 2256, 2259, 2264. These FEMAT scientists, who designed the ACS, expressed dissenting opinions and disagreement concerning potential negative cumulative effects of the ACS amendment. The FEMAT scientists are respected scientists and their views relevant. Furthermore, they were not alone in expressing dissent. FWS scientists submitted comments that the proposed language would “remove or weaken several key conservation provisions for aquatic species at the plan level” and eliminate the “assurance that projects developed and implemented under the ACS guidance will contribute to restoring and/or maintaining the ecological health of aquatic ecosystems.” Administrative Record, FS/BLM 5944. The FWS scientists further stated that “this outcome is of great concern to us.” Id. at 5945. These and other comments and dissenting opinions were not disclosed in the body of the FSEIS. Instead, buried in the appendices as a summary of public comments on the draft SEIS, is the following statement: The FEMAT Report is the best available science particularly on the specific issues being considered in the proposal, yet the proposal significantly diverges from the FEMAT regarding several important ACS provisions. The Draft SEIS offers no science in support of these departures, and in fact offers no discussion of the scientific issues surrounding these departures ... Importantly, the ACS EIS Team interviewed FEMAT scientists about the extent to which the changes that are now included in the Draft SEIS were consistent with their views of how the ACS was intended to function. On several key points the scientists’ responses diverge from the actions taken in the proposal. For example, scientists indicated support for site-scaled evaluations of projects as they relate to meeting the goals of the ACS, and noted that some site-scale projects could be inconsistent with meeting the ACS objectives at the watershed or larger scales. Additionally, scientists stated that site-scaled compliance with Section C and D alone was not consistent with their view of how the ACS was designed to function. 2003 FSEIS, Appendix C, p. 57 (ellipses in original). The response of the agency to this comment states, in its entirety: “The scientist interviews were part of the scoping effort but did not yield consistent results. Agency scientists consistently emphasize the role of watershed analysis in providing context for project planning.” Id., p. 58. This “disclosure” wholly fails to meet the standards for adequate disclosure and discussion of dissenting scientific opinions. The purpose of the appendix is to reproduce comments received by the agency on a draft EIS during the public comment period. Here, the draft EIS did itself not disclose any dissenting opinions. Therefore, the agency was required to “discuss at appropriate points ... any responsible opposing view which was not adequately discussed in the draft statement and shall indicate the agency’s response to the issues raised.” 40 C.F.R. § 1502.9(b). Here, the dissenting views of responsible scientists were neither set forth in substance, nor their import discussed, in the FSEIS. Further, several of the FEMAT scientists’ responses regarding original intent of the ACS were misrepresented in a different section of the appendix. One response from the FEMAT scientists was that “we think the language proposed in the Draft SEIS is not consistent with our original intent for the ACS so does not clarify its interpretation.” Administrative Record, FS/BLM at 2259. Not only was this and similar critical statements not disclosed, they were misrepresented in this response to a citizen comment expressing concern over the proposed ACS amendment: Comment: The existing rules represent a consensus among the various parties who crafted the Northwest Forest Plan in 1994. We find it upsetting that the Forest Service now wishes to supplant this consensus by altering the scope of the ACS. The existing language of the ACS should be preserved without changes. The ACS rules are functioning exactly as intended. That is, they serve as a check against the rampant ecosystem destruction that has characterized so much of Forest Service policy. Response: The various parties who crafted the Northwest Forest Plan did not intend for the ACS objectives to be interpreted as standards to be applies at all scales. The Draft SIES stated that the agencies have had difficulty planning and implementing projects that follow Northwest Forest Plan principles (as indicated by annual sale quantity sold). Part of the difficulty is due to impossible expectations raised by interpretations of ACS language. 2003 FSEIS, Appendix C, p. 44. This statement as to the intent of the drafters of the Northwest Forest Plan is contrary to the opinions that were actually expressed by the FEMAT scientists in response to the questionnaire. Even if the scientists’ opinions had been adequately and accurately stated and discussed, them relegation to the comment and response section of the appendix was improper under NEPA. Friends of the Earth v. Hall, 693 F.Supp. at 934. Disclosures and discussions must be in the body of the EIS itself. Center for Biological Diversity v. Forest Service, 349 F.3d at 1169. Furthermore, within that body of the EIS, the agency must not only recite dissenting opinions, it must “analyze,” “respond to” and “discuss” them. Id. at 1168. None of that was done here. “Where the agency fails to acknowledge the opinions held by well-respected scientists concerning the hazards of the proposed action, the EIS is fatally deficient.” Friends of the Earth v. Hall, 693 F.Supp. at 934. As it did in that case, the Court concludes that the appropriate place to disclose and discuss the opposing views was in the body of the EIS, rather than in the comments and response section. Id. The FSEIS thus fails to meet NEPA standards, in that dissenting views were not disclosed and discussed at the appropriate point, nor with sufficient depth, to “inform decision-makers of the full range of responsible opinion on the environmental effects.” Id. (3) Conclusion Accordingly, plaintiffs motion for summary judgment (Dkt.# 52) is GRANTED, and defendants’ two motions for summary judgment (Dkt. ## 68, 69) are DENIED. It is hereby ORDERED that: (a) the biological opinions on the amendment to the Aquatic Conservation Strategy of the Northwest Forest Plan (“ACS Amendment”) issued by defendants NMFS and FWS are arbitrary, capricious, and contrary to the Endangered Species Act, 16 U.S.C. § 1536(a)(2), in violation of the Administrative Procedure Act, 5 U.S.C. § 706, and shall accordingly be set aside; (b) the supplemental environmental impact statement (FSEIS) issued by defendants Department of Agriculture and Department of the Interior on the ACS amendments is arbitrary and capricious and contrary to the National Environmental Policy Act, 42 U.S.C. § 4332(2)(C), in violation of the Administrative Procedure Act, 5 U.S.C. § 706, and shall accordingly be set aside; and (c) the ACS amendment adopted by defendants Department of Agriculture and Department of the Interior in the Record of Decision dated March 2004 fails to comply with NEPA and the ESA, and is accordingly set aside. The parties shall advise the Court, within twenty days of the date of this Order, as to any further Court action necessary before final judgment is entered. REPORT AND RECOMMENDATION THEILER, United States Magistrate Judge. INTRODUCTION A coalition of organizations representing the interests of commercial fishermen and/or environmental and conservation causes (plaintiffs) brought this suit against the National Marine Fisheries Service (NMFS), United States Fish and Wildlife Service (FWS), United States Department of Agriculture (USDA), and United States Department of the Interior (DOI) (federal defendants). Douglas Timber Operators, Inc. and American Forest Resource Counsel (defendant-intervenors) intervened as defendants. This matter comes before the Court on the parties’ cross-motions for summary judgment. (Dkts.52, 68-69.) Plaintiffs request that the Court declare invalid and set aside the final supplemental environmental impact statement (FSEIS) and biological opinions (BOs) for amendments to the Aquatic Conservation Strategy (ACS), a component of the Northwest Forest Plan (NFP or NWFP). Specifically, they challenge the Endangered Species Act (ESA) and National Environmental Policy Act (NEPA) processes surrounding that amendment. Federal defendants and defendant-intervenors (collectively “defendants”) counter plaintiffs’ arguments in their cross motions for summary judgment. The Court heard oral argument on November 22, 2005. For the reasons described below, the Court agrees with plaintiffs as to the BOs and with defendants as to the FSEIS. BACKGROUND A. NFP/ACS In the early 1990s, in response to ongoing controversy and litigation, President Clinton sought the creation of a comprehensive strategy for forest management within the range of the northern spotted owl. The government assembled the Forest Ecosystem Management Assessment Team (FEMAT) to develop alternative management options. A February 1994 FSEIS addressed those options, with modification, and identified “Alternative 9” as the preferred alternative. See FWS 6285 (1994 FSEIS). In April 1994, the Secretaries of USDA and DOI issued a Record of Decision (ROD) adopting Alternative 9, which became known as the NFP. See NMFS II.A.7 (1994 ROD). The NFP amended resource management plans of the USDA’s Forest Service (FS) and the DOI’s Bureau of Land Management (BLM). It serves a two-fold purpose: (1) the need to protect the health of forest ecosystems; and (2) the need for a sustainable supply of timber and other forest products. 1994 ROD at 25-26. The ACS addresses aquatic environments within the territory of the NFP and contains four basic components: (1) riparian reserves (buffer zones along water bodies); (2) key watersheds (best aquatic habitat, crucial to at-risk fish species and stocks and providing high quality water); (3) watershed analysis (or “WA”) (documenting existing and desired watershed conditions); and (4) watershed restoration (long-term restoration of watershed health and aquatic ecosystems). Id. at B-12. Binding standards and guidelines within the ACS restrict certain activities. The ACS also contains nine objectives designed to maintain and restore properly functioning aquatic habitats: 1. Maintain and restore the distribution, diversity, and complexity of watershed and landscape-scale features to ensure protection of the aquatic systems to which species, populations and communities are uniquely adopted. 2. Maintain and restore spatial and temporal connectivity within and between watersheds. Lateral, longitudinal, and drainage network connections include floodplains, wetlands, upslope areas, headwater tributaries, and intact refugia. These network connections must provide chemically and physically unobstructed routes to areas critical for fulfilling life history requirements of aquatic and riparian-dependent species. 3. Maintain and restore the physical integrity of the aquatic system, including shorelines, banks, and bottom configurations. 4. Maintain and restore water quality necessary to support healthy riparian, aquatic, and wetland ecosystems. Water quality must remain within the range that maintains the biological, physical, and chemical integrity of the system and benefits survival, growth, reproduction, and migration of individuals composing aquatic and riparian communities. 5. Maintain and restore the sediment regime under which aquatic ecosystems evolved. Elements of the sediment regime include the timing, volume, rate, and character of sediment input, storage, and transport. 6. Maintain and restore in-stream flows sufficient to create and sustain riparian, aquatic, and wetland habitats and to retain patterns of sediment, nutrient, and wood routing. The timing, magnitude, duration, and spatial distribution of peak, high, and low flows must be protected. 7. Maintain and restore the timing, variability, and duration of floodplain inundation and water table elevation in meadows and wetlands. 8. Maintain and restore the species composition and structural diversity of plant communities in riparian areas and wetlands to provide adequate summer and winter thermal regulation, nutrient filtering, appropriate rates of surface erosion, bank erosion, and channel migration and to supply amounts and distributions of coarse woody debris sufficient to sustain physical complexity and stability. 9. Maintain and restore habitat to support well-distributed populations of native plant, invertebrate, and vertebrate riparian-dependent species. Id. at B-ll. B. ESA Consultations on the NFP/ACS and Associated Litigation No aquatic species were listed as protected under the ESA within the range of the NFP at the time of its adoption. Subsequently, the Umpqua River cutthroat trout, salmon, steelhead, and bull trout were listed as endangered or threatened. These listings prompted FS and BLM, the “action agencies,” to consult with NMFS and FWS, the “consulting agencies.” 1. NMFS’s 1997 BO: In 1997, NMFS issued a BO concluding that continued implementation of the FS and BLM resource management plans as amended by the NFP/ACS was not likely to jeopardize species listed or proposed for listing or to destroy or adversely modify critical habitat. NMFS III.A.78 (1997 NMFS BO.) In so concluding, the BO noted that actions taken “must be consistent with ACS objectives.” Id. at 23-24. A number of the same plaintiffs in this case challenged the BO. This Court found that the BO adopted the concept of consistency with the ACS objectives as a basis for a no-jeopardy finding. Pacific Coast Fed. of Fishermen’s Ass’ns v. National Mamie Fisheries Serv., No. C97-775R, 1998 WL 1988556, at **10, 12 (W.D.Wash. May 29, 1998) (“PCFFA I”). The Court stated: “Before a project can proceed, USFS and BLM must find that actions either meet, or do not prevent attainment of, the ACS objectives. The finding must be supported by an analysis of how the proposed management action will maintain the existing condition or restore it.” Id. at *12. The Court upheld the BO, finding NMFS properly assumed compliance with the ACS on the programmatic level, but determined NMFS failed to ensure or verify ACS compliance on the site-specific or project level for various timber sales. Id. The consulting agencies then began to assess consistency with the ACS objectives by focusing on the impacts of actions at the watershed level over a long period, as opposed to impacts at the site-specific level. Pacific Coast Fed. of Fishermen’s Ass’ns v. National Marine Fisheries Serv., 71 F.Supp.2d 1063, 1068 (W.D.Wash.1999) (“PCFFA II”). Plaintiffs again challenged the implementation of the NFP/ACS. This Court rejected NMFS’s watershed level approach, finding that, inter alia, the 1997 BO required NMFS to ensure ACS compliance at all four spacial scales — regional, province (river basin), watershed, and site/project. Id. at 1069, 1072. NMFS appealed the PCFFA II ruling. The Ninth Circuit preliminarily noted: The NMFS is required under NFP to determine whether or not a project is likely to adversely affect a listed species. The NMFS is not required by NFP to determine ACS consistency. However, in PCFFA I, the district court held that NMFS was permitted to assume that implementation of projects under USFS’s Land and Resource Management Plan (“LRMP”) or BLM’s Resource Management Plan (“RMP”) would result in “no jeopardy” to the listed fish species if those projects were conducted in accordance with ACS. Therefore, because NMFS is allowed to equate ACS consistency with a no jeopardy finding, NMFS chooses to inquire into ACS consistency. Presumably, other methods of reaching a jeopardy determination are available to NMFS. Pacific Coast Fed. of Fishermen’s Ass’ns v. National Marine Fisheries Serv., 265 F.3d 1028, 1034-35 (9th Cir.2001) (“PCFFA Appeal”). In response to NMFS’s argument that the watershed was the proper level to evaluate ACS consistency because the NFP/ACS aims to restore millions of acres of forest lands, the Ninth Circuit stated: Given that overall protection of forest and water resources is the concern of both NFP and ACS, it does not follow that NMFS is free to ignore site degradations because they are too small to affect the accomplishment of that goal at the watershed scale. For some purposes, the watershed scale may be correct, but NFP does not provide support for so limiting NMFS review. Id. at 1035-36 (also stating that the general mission statement in the NFP as to maintaining and restoring ecosystem health at watershed and landscape scales “does not prevent site degradation and does nothing to restore habitat over broad landscapes if it ignores the cumulative effect of individual projects on small tributaries within watersheds.”) The court concluded that “[appropriate analysis of ACS compliance is undertaken at both the watershed and project levels.” Id. at 1036. The Ninth Circuit also noted that, “[a]l-though the NFP, FEMAT, and ACS do not appear to address the proper scale for implementation of ACS, they explain that spatial levels should be considered and that watershed consistency is a primary goal[,]” and that “the record eontain[ed] no proof that the cumulative effect of site specific degradation was considered in reaching a no jeopardy opinion at the regional watershed level.” Id. at 1036. It added: The district court’s earlier decision to allow NMFS to assume no jeopardy from an ACS consistency finding appears to be linked to the belief that ACS consistency was to be measured at the project level. This approach seems reasonable as far as it goes. Any project that maintains or restores fish habitat presumably would not jeopardize the survival of the species. However, a project that degrades habitat at the project level must be included in any realistic study at the watershed scale. Its disregard of projects with a relatively small area of impact but that carries a high risk of degradation when multiplied by many projects and continued over a long time period is the major flaw in NMFS study. Without aggregation, the large spatial scale appears to be calculated to ignore the effects of individual sites and projects. Unless the effects of individual projects are aggregated to ensure that their cumulative effects are perceived and measured in future ESA consultations, it is difficult to have any confidence in a wide regional no-jeopardy opinion. Failure to account adequately for the cumulative effects of the various projects undermines the assumptions that the district court authorized NMFS to make in PCFFA I. If the effects of individual projects are diluted to insignificance and not aggregated, then Pacific Coast is correct in asserting that NMFS’s assessment .of ACS consistency at the watershed level is tantamount to assuming that no project will ever lead to jeopardy of a listed species. Id. at 1036-37 (also noting that the FE-MAT report “emphasized the importance of curtailing incremental aquatic habitat degradation because the effects of numerous actions can cause significant damage to fish species and their habitat.”) The Ninth Circuit, therefore, affirmed this Court’s ruling as to NMFS’s watershed-level approach to ACS consistency. Id. at 1036-37. 2. FWS’s 2000 BO: In 2000, FWS issued a BO concluding that continued implementation of the FS and BLM resource management plans as amended by the NFP/ACS would not likely cause jeopardy to listed bull trout. FWS 7216 (2000 FWS BO at 82.) As with the 1997 NMFS BO, the 2000 FWS BO also explicitly required project-level consistency with ACS objectives. Id. at 49-50, 74. Several environmental advocacy groups challenged the 2000 FWS BO as it related to four timber sales in bull trout habitat. The United States District Court in Oregon issued a preliminary injunction, concluding there “were serious questions on the merits as to whether the FWS acted arbitrarily and capriciously in failing to analyze the specific timber sales to determine whether they are consistent with ACS objectives.” Cascadia Wildlands Project v. United States Fish & Wildlife Serv., 219 F.Supp.2d 1142, 1149-50 (D.Or. 2002). FWS subsequently withdrew the targeted BOs. See FWS 3893. C. 200k ACS Amendment Following the above-described court decisions, FS and BLM initiated the process of amending the ACS. Plaintiffs contend that the demands of the timber industry-prompted this process, while federal defendants point to the need to clarify their original intent of progress towards ACS objectives over the long term and at broad scales, and defendant-intervenors, as agreed to by federal defendants, assert the gridlock imposed on timber harvest by the requirement of project-level ACS consistency. Amendment of the ACS required the action agencies to comply with NEPA and NFP amendment processes, and the consulting agencies to issue BOs assessing the impacts of the amendments on listed fish species. 1.NEPA Process: In November 2002, the action agencies published a Notice of Intent in the Federal Register as to the potential amendment of the ACS and sought input from concerned parties. See NMFS II.A.2 (2008 FSEIS at 16.) A draft EIS released in March 2003 contained two alternatives: (1) the “No Action” alternative; and (2) the “Proposed Action” alternative, wherein language would be amended/deleted with respect to the role of ACS objectives, standards and guidelines, and watershed analysis. NFMS II.A.3 (March 2003 Draft SEIS.) The agencies issued the Final SEIS on the ACS Amendment in October 2003, adding “Alternative A,” designated the “Preferred Alternative.” 2003 FSEIS at 18. A variation of the Proposed Action alternative, Alternative A also added and deleted ACS language. Id. The 2003 FSEIS described the ACS Amendment as intended to clarify that the proper scales to evaluate progress toward achievement of the ACS objectives are the fifth-field watershed and broader scales, that no single project should be expected to achieve all ACS objectives, that watershed analysis is to be used to provide context for project planning, and that standards and guidelines that must be specifically addressed in project planning are those within Sections C and D of Attachment A to the NFP, rather than the entirety of Attachment A, which also includes the ACS objectives. Id. at 9-10. 2. ESA Consultation: The action agencies submitted biological assessments (BAs) to the consulting agencies, prompting the initiation of consultation on the ACS Amendment. See FWS 1322 and 1441. On March 18th and 19th of 2004, FWS and NMFS issued BOs concluding that continued implementation of resource management plans within the area of the NFP, as amended by the 1994 ROD and as proposed for amendment in the 2003 FSEIS, was not likely to jeopardize the continued existence of listed species or to destroy or adversely modify critical habitat. FWS 1-79 (2004 FWS BO at 71) and NMFS I.A.I. (2004 NMFS BO at 1, 98). As discussed further below, in reaching this conclusion, FWS and NMFS relied on the fact that site-specific consultations would follow their programmatic BOs.2004 FWS BO at 71, 73 and 2004 NMFS BO at 27-29, 73-74, and 98. Both BOs deferred authorization of incidental take of listed species to project-level consultations. 3. ACS Amendment: On March 22, 2004, USDA and DOI issued the ROD amending the ACS. FWS 2952-72 (2004 ROD). Asserting that language in the 1994 ROD hindered the action agencies’ ability to follow NFP princi-pies and achieve its goals, the 2004 ROD contained the clarifications outlined in the 2003 FSEIS. See 2004 ROD at 4. DISCUSSION A. Summary Judgment Standard Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party is entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient showing on an essential element of his case with respect to which he has the burden of proof. Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548. “[A] party opposing a properly supported motion for summary judgment may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (citing Fed.R.Civ.P. 56(e)). Here, the parties agree that this matter is appropriate for resolution on summary judgment. B. Standard of Review The Court reviews NEPA and ESA compliance under the Administrative Procedure Act (APA), 5 U.S.C. § 701 et seq. Native Ecosystems Council v. Dombeck, 304 F.3d 886, 891 (9th Cir.2002). Under the APA, the Court must set aside agency actions found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706. The Court “ ‘must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.’ ” Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971)). A court may not substitute its judgment for that of the agency. Id. Courts must also be “deferential to the agency’s expertise in situations ... where ‘resolution of [the] dispute involves primarily issues of fact.’ ” Arizona Cattle Growers’ Ass’n v. Fish & Wildlife, 273 F.3d 1229, 1236 (9th Cir.2001) (quoted source omitted). Deference is particularly appropriate “when the agency is ‘making predictions, within its area of special expertise, at the frontiers of science.’ ” Id. (quoted source omitted). However, while “[c]ourts will defer to an agency’s technical or scientific expertise[,] .... this deference is not unlimited, and the presumption of expertise may be rebutted if the agency’s decisions are based on science but are shown to be not reasonable.” Greenpeace v. National Marine Fisheries Serv., 237 F.Supp.2d 1181, 1187 (W.D.Wash.2002). C.Scope of Review As a general rule, judicial review of agency actions is limited to the administrative record. Lands Council v. Powell, 395 F.3d 1019, 1029 (9th Cir.2005). However, evidence outside the record may be considered in limited situations, such as when “necessary to determine ‘whether the agency has considered all relevant factors and has explained its decision,’ ” where “ ‘the agency has relied on documents not in the record,’ ” “ ‘when supplementing the record is necessary to explain technical terms or complex subject matter,’ ” upon “ ‘a showing of agency bad faith[,]’ ” id. at 1030 (quoting Southwest Ctr. for Biological Diversity v. United States Forest Serv., 100 F.3d 1443, 1450 (9th Cir.1996)), or when the agency has “swept stubborn problems or serious criticism under the rug[,]” National Audubon Soc’y v. United States Forest Serv., 46 F.3d 1437, 1447 (9th Cir.1993). The Ninth Circuit has stated that judicial review under § 706 of the APA must be based on the “whole record,” which “includes everything that was before the agency pertaining to the merits of its decision.” Portland Audubon Soc’y v. Endangered Species Committee, 984 F.2d 1534, 1548 (9th Cir.1993). See also Seattle Audubon Soc’y v. Lyons, 871 F.Supp. 1291, 1308 (W.D.Wash.1994) (in upholding the NFP, finding declarations properly considered to “explain the agency’s actions or to determine whether its course of inquiry was inadequate.”), ajfd Seattle Audubon Soc’y v. Moseley, 80 F.3d 1401 (9th Cir.1996). In this case, the Court found limited discovery warranted given that documents identified by plaintiffs “provide[d] a reasonable basis to believe that the agency actions challenged in this proceeding may have been influenced by the timber industry’s proposal to amend the ACS, or that the timber industry’s proposal may have been directly or indirectly considered by agency decisionmakers.” (Dkt. 48 at 9-10.) The Court reserved for a later determination the question of whether the administrative record should be supplemented to include the discovery materials sought. (Id. at 11.) The Court noted that, should plaintiffs wish to seek supplementation of the record, they were to proceed by separate motion. (Id.) Now, in alleging the timber industry exerted improper influence on the government, plaintiffs reference discovery responses depicting communications between the timber industry and federal agencies. For example, plaintiffs point to documents suggesting that the timber industry proposed and the agencies agreed to amend the ACS to limit the consistency requirement and the role of watershed analysis, and to allow for more timber sales to proceed. See Patti Goldman Decl. (Dkt.53, Exs.2-4.) Plaintiffs assert that the parties stipulated in their joint status report that discovery responses may be considered by the Court and note that they did not file a motion seeking to add these documents to the record based on their understanding of that agreement. Federal defendants aver their agreement only to not challenge authenticity or file a motion to strike, but their consistent stance that these documents are not part of any agency’s record. (See Dkts. 34 and 48.) Because it appears that the documents at issue were included in the information before the agencies in making their decisions, they are properly considered a part of the administrative record. See Portland Audubon Soc’y, 984 F.2d at 1548. However, as argued by defendants, plaintiffs do not demonstrate anything improper took place. Instead, they show only that the timber industry supported and, unsurprisingly, encouraged amendment of the ACS. See, e.g., Louisiana Ass’n of Indep. Producers v. Federal Energy Regulatory Comm’n, 958 F.2d 1101, 1113 (D.C.Cir.1992) (“Agency officials may meet with members of the industry both to facilitate settlement and to maintain the agency’s knowledge of the industry it regulates.”); Sierra Club v. Costle, 657 F.2d 298, 401 (D.C.Cir.1981) (“[T]he importance to effective regulation of continuing contact with a regulated industry, other affected groups, and the public cannot be underestimated.”) As also noted by defendants, it is apparent from the previous PCFFA litigation that the government had sought a lesser role for the ACS objectives. Accordingly, the documents at issue did not assist the undersigned in reaching the conclusions contained herein. D. Jurisdiction to Review BOs Federal defendants assert that the Court lacks jurisdiction to review the 2004 NMFS and FWS BOs. The APA limits review to “final agency aetion[s].” 5 U.S.C. § 704. Final agency action must (1) “mark the ‘consummation’ of the agency’s decisionmaking process,” and (2) “be one by which ‘rights or obligations have been determined,’ or from which ‘legal consequences will flow[.]’ ” Bennett v. Spear, 520 U.S. 154, 177-78, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (quoted sources omitted). Accord Ecology Center, Inc. v. United States Forest Serv., 192 F.3d 922, 925 (9th Cir.1999). The latter part of this two-part test is at issue here. Cf. PCFFA Appeal, 265 F.3d at 1033-34 (“[T]he issuance of a biological opinion marks the ‘consummation’ of NMFS’s consultation process.”) In Bennett, the United States Supreme Court held that a BO and accompanying Incidental Take Statement (ITS) constituted final agency action in that they “altered] the legal regime to which the action agency is subject, authorizing it to take the endangered species if (but only if) it complies with the prescribed conditions.” 520 U.S. at 178, 117 S.Ct. 1154. The court distinguished cases in which a report “carried no ‘direct consequences’ and served ‘more like a tentative recommendationf,]’ ” and where “recommendations were in no way binding” and allowed for “absolute discretion!!]” Id. (citing and quoting Franklin v. Massachusetts, 505 U.S. 788, 798, 112 S.Ct. 2767, 120 L.Ed.2d 636 (1992) and Dalton v. Specter, 511 U.S. 462, 478, 114 S.Ct. 1719, 128 L.Ed.2d 497 (1994) respectively). The Supreme Court noted that the BO and ITS at issue in that case, by contrast, had “direct and appreciable legal consequences.” Id. See also PCFFA Appeal, 265 F.3d at 1034 (upholding finding that a “no jeopardy” opinion, as compared to the jeopardy opinion at issue in Bennett, also constituted a final agency action given that it marked the end of the consultation process and had direct and appreciable legal consequences, in that “[a]s a practical matter the opinion and its accompanying Incidental Take Statement grant immunity to the proposed actions of other agencies required to obtain an NMFS opinion before proceeding with their own actions[J”) Federal defendants assert that, without an accompanying authorization for “take,” a BO by itself has no legal consequences. They point to language in the Supreme Court’s decision in Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 62, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004), as supporting this limited interpretation of Bennett. In Southern Utah Wilderness Alliance, the Supreme Court quoted 5 U.S.C. § 551(13) as defining a final agency action to include an “ ‘agency rule, order, license, sanction, relief, or the equivalent or denial therefore, or failure to act. ’ ” Id. (emphasis in original). Federal defendants assert that an ITS authorizing a take of endangered species is tantamount to a license for the purposes of the APA. See Bennett, 520 U.S. at 170, 117 S.Ct. 1154 (“Thus, the Biological Opinion’s Incidental Take Statement constitutes a permit authorizing the agency action to ‘take’ the endangered or threatened species so long as it respects the Service’s ‘terms and conditions.’ ”) and 5 U.S.C. § 551(8) (defining “license” to include “an agency permit”). They contrast a BO without an ITS as merely advisory' — -an opinion regarding the biological effects of an action. However, Southern Utah Wilderness Alliance, although accurately defining “agency action” under the APA, addressed a “failure to act” challenge to a land use plan under 5 U.S.C. § 706(1), seeking to “compel agency action unlawfully withheld or unreasonably delayed.” Plaintiffs here pursue a challenge under 5 U.S.C. § 706(2), seeking to “hold unlawful and set aside agency action” deemed “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Accordingly, Southern Utah Wilderness Alliance is not controlling. Cf. Environmental Prot. Info. Ctr. v. Blackwell, 389 F.Supp.2d 1174, 1211-12 (N.D.Cal.2004) (stating that, because the case involved a challenge to a final agency action, rather than a failure to act, Southern Utah Wilderness Alliance was not controlling). Instead, the undersigned finds the reasoning in Cascadia Wildlands Project instructive. See 219 F.Supp.2d 1142. In that case, the District Court of Oregon disagreed with the very position taken by federal defendants here, stating: “Whereas an Incidental Take Statement carries with it the assurance of immunity if a bull trout is taken, the absence of an Incidental Take Statement raises the potential of liability if a bull trout is taken.” Id. at 1148. The court found that both the risk of peril in taking a bull trout and the agency’s ability to use the no jeopardy conclusion in the BO in defense of its actions in a future proceeding were appreciable legal consequences. Id. These same appreciable legal consequences exist with respect to the BOs at issue here. Accordingly, federal defendants fail to establish a lack of jurisdiction to review the BOs. E. ESA Challenges Section 7(a)(2) of the ESA requires federal agencies to examine their proposed actions in an effort to ensure that actions taken are “not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of [critical] habitatf.]” 16 U.S.C. § 1536(a)(2). Forest management plans constitute agency actions subject to the mandates of § 7. Pacific Rivers Council v. Thomas, 30 F.3d 1050, 1055 (9th Cir.1994); Lane County Audubon Soc’y v. Jamison, 958 F.2d 290, 294 (9th Cir.1992). The consulting agencies must issue a BO “detailing how the agency action affects the species or its critical habitat,” incorporating the best available science, and making a determination as to whether the action is likely to jeopardize the survival and recovery of listed species. 16 U.S.C. § 1536(a)(2) & (b)(3). The BO must consider “the current status of the species, the environmental baseline, the effects of the proposed action, and the cumulative effects of the proposed action.” Gifford Pinchot Task Force v. Fish & Wildlife Serv., 378 F.3d 1059, 1062 (citing 50 C.F.R. § 402.14(g)(2)-(3)), amended on other grounds, 387 F.3d 968 (9th Cir.2004). Cumulative effects are “those effects of future State or private activities, not involving Federal activities, that are reasonably certain to occur within the action area of the Federal action subject to consultation.” 50 C.F.R. § 402.02. The consulting agencies must also issue an ITS upon determining that an action is likely to result in some incidental “take” of listed species. 16 U.S.C. § 1536(b)(4); 50 C.F.R. § 402.14(h)(3)(I). “A biological opinion is arbitrary and capricious if it fails to articulate a satisfactory explanation for its conclusions, relies on factors which Congress did not intend for it to consider, or fails to consider an important aspect of the problem.” Greenpeace, 237 F.Supp.2d at 1187 (citing Motor Vehicle Mfrs. Ass’n v. State Farm, Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)). “Essentially, [the Court] must ask ‘whether the agency “considered the relevant factors and articulated a rational connection between the facts found and the choice made.” ’ ” PCFFA Appeal, 265 F.3d at 1034 (quoted sources omitted). “A biological opinion may also be invalid if it fails to use the best scientific information as required by 16 U.S.C. § 1536(a)(2).” Id. (citing Greenpeace Action v. Franklin, 14 F.3d 1324, 1336 (9th Cir.1993)). Arbitrary and capricious action may also result from an agency’s failure to provide “ ‘reasoned analysis’ ” upon deviating from a previous position. Motor Vehicle Mfrs. Ass’n, 463 U.S. at 57, 103 S.Ct. 2856 (quoting Greater Boston Television Corp. v. Federal Commc’ns Comm’n, 444 F.2d 841, 852 (D.C.Cir.1970)). For the reasons described below, the undersigned finds the 2004 BOs arbitrary and capricious. 1. Reliance on Future Site-Specific Consultations: Plaintiffs challenge the consulting agencies’ reliance on future site-specific consultations in rendering their no-jeopardy opinions. Plaintiffs do not dispute the permissibility of “programmatic environmental analysis supplemented by later project-specific environmental analysis.” Gifford Pinchot Task Force, 378 F.3d at 1062 (confirming approval of the above and citing Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346, 1356 (9th Cir. 1994)). Instead, they differ with defendants as to the degree to which the initial programmatic consultation must guide later site-specific or project-level consultations. Plaintiffs argue that the consulting agencies failed to address the full effects of the amended forest plan, including its mechanisms (or lack thereof) for modifying harmful projects or curtailing adverse cumulative effects. See, e.g., Conner v. Burford, 848 F.2d 1441, 1453 (9th Cir.1988) (agency must “analyze the effect of the entire agency action” and render a “comprehensive biological opinion”; concluding FWS violated the ESA “by failing to use the best information available to prepare comprehensive biological opinions considering all stages of the agency action [including post-oil and gas leasing activities], and thus failing to adequately assess whether the agency action was likely to jeopardize ... threatened or endangered species, as required by Section 7(a)(2).”); Greenpeace v. National Marine Fisheries Serv., 80 F.Supp.2d 1137, 1147-50 (W.D.Wash.2000) (“A biological opinion that is not coextensive with the identified agency action necessarily fails to consider the important aspects of the problem and is, therefore, arbitrary and capricious.”; finding BO invalid for failing to assess full scope of individual and cumulative fishing allowed under fishery management plan). See also Buckeye Forest Council v. United States Forest Service, 378 F.Supp.2d 835, 843-44 (S.D.Ohio 2005) (upholding tiered consultation where programmatic consultation established conditions for subsequent site-specific consultations). They assert that, instead, the consulting agencies im-permissibly relied on later, site-specific consultations to plug the loopholes left by removal of the ACS “sideboards” they previously utilized to ensure against jeopardy. Cf Resources Ltd. v. Robertson, 8 F.3d 1394, 1399-1400 (9th Cir.1993), as amended in 35 F.3d 1300, 1304-05 (1994) (prospect of later consultations with FWS did not excuse FS’s arbitrary and capricious selection of an “unattainable ASQ [allowable sale quantity,]” of timber in a forest plan). Federal defendants describe consultation at the programmatic level as inherently generalized, and assert the impossibility of speculatively consulting on the effects of actions not defined as to timing, location, or method of implementation. See 2004 FWS BO at 36-69 and 2004 NMFS BO at 70-95 (recognizing that, depending on when, where, and how specific projects are designed to occur, projects such as grazing, timber harvest, road building, mining, and forest restoration may adversely affect listed species). They aver that, here, the consulting agencies went as far as they could. Federal defendants also note that the ESA affords flexibility to agencies in determining an appropriate approach to consultation. See Buckeye Forest Council, 378 F.Supp.2d at 843-44 (noting that “tiered consultation is not explicitly described in the ESA or its implementing regulations” and that “[t]he tiering [of a site-specific BO to a programmatic BO] is an interpretation of how to go about following the directive of the implementing regulation.”; agreeing that the agencies’ interpretation of the regulations and their precise implementation was owed deference). However, defendants do not successfully dispute the requirement that the consulting agencies render “comprehensive” BOs, analyzing “the effect of the entire agency action.” Conner, 848 F.2d at 1453 (emphasis in original). Accord Greenpeace, 80 F.Supp.2d at 1147-50. Moreover, the Ninth Circuit has held that incomplete information as to the precise location and extent of future activities does not excuse the failure to produce a comprehensive BO. See Conner, 848 F.2d at 1453-54 (noting that the agency could have determined whether activities in particular areas were fundamentally incompatible with the continued existence of species, and could have also identified potential conflicts between species and post-leasing activities due to cumulative impact). In this ease, the consulting agencies appeared to recognize the need for a comprehensive analysis in their earlier BOs. For example, NMFS’s 1997 BO acknowledged the need to address more than simply the “overall long-term effects of implementing” the land management plans: Although project-scale actions will still be subject to section 7 consultation, the NMFS finds that it is appropriate to consider the efficacy of LRMP/RMP direction to minimize and avoid adverse effects at the earliest project planning level. Consideration of the needs of Pacific salmonids is important at both levels of administrative unit decision making (i.e., management plan and project levels). While LRMPs and RMPs set goals and objectives, land allocations, and standards and guidelines that regulate the production of goods and services, consultation at the individual program or project scale is enhanced where there has been an opportunity to consider the full range of effects at the species (ESU) scale under an ecosystem-based strategy applied at the LRMP/RMP scale. 1997 NMFS BO at 18. Also, documents in the record reflect that the consulting agencies envisioned this same type of analysis in reviewing the amended ACS. For example, guidance issued by the Endangered Species Chief for the FWS region stated: Current national guidance on programmatic consultations instruct us to conduct the program-level consultation by assessing the “sideboards” beyond which individual projects under that program cannot extend. In order to complete an adequate analysis on the proposed ACS clarification, we must determine the boundaries beyond which we believe no additional effects will occur due to proposed projects. Subsequent projects will then be assessed to determine whether it is still within those boundaries established in the programmatic consultation. FWS 3970. See also FWS 3324 (comments on draft SEIS NMFS submitted to FS: “[W]e need to identify any loopholes ... which would allow projects to go forward that would not have been implemented.... [W]e cannot pretend these loopholes do not exist.... Any actions that could occur due to said loopholes need to be identified, addressed and analyzed in our plan-level consultation so that the analysis is logical and defensible.”) Yet, in their final BOs, the consulting agencies essentially defer analysis to future site-specific consultations. In adopting a wholesale deferral of analysis to the project level, it cannot be said that the agencies satisfied their burden to “make certain” that the proposed action is not likely to jeopardize listed species or destroy or adversely modify critical habitat. Defenders of Wildlife, 420 F.3d at 963-64 (defining § 7(a)(2)’s use of the term “insure” as above). Additionally, as noted by plaintiffs, site-specific § 7 consultations will focus on a smaller area than the entire NFP and, based on the ESA’s definition of cumulative effects, assess only those prior federal projects that have undergone consultation. See 50 C.F.R. § 402.02. Deferral, therefore, also necessarily improperly curtails the discussion of cumulative effects. However, while deferring analysis to the site-specific scale, the BOs also appear to rest on an assumption that those consultations will apply a draft analytical process attached as an appendix to the BAs. As described in the 2004 NMFS BO: Appendix 1 of the BA (included by reference) describes the process whereby the action agencies assess and mitigate the effects of land management activities at a variety of scales.... [T]his appendix also includes a detailed discussion of the process that the action agencies apply to project-level section 7 ESA consultations^] Appendix 1 of the BA is considered to be part of the proposed action being evaluated in this Opinion. ... The determination of effects is dependent upon specific site and watershed physical and biological baseline conditions for a proposed action and the design and anticipated effects of the action itself. The four agencies ([FWS], [NMFS], BLM and USFS) have developed a draft analytical procedure for section 7 ESA consultation on listed fish species and critical habitat that is currently being evaluated on several test projects. It assesses impact at multiple scales, from site to watershed. Key features of the draft analytical procedure are: 1. Integration of the use of WA results, the NEPA analysis, and the ESA consultation process; 2. Specific identification and documentation of effects relative to the element of the proposed action that is causing it, and what life history stage of the fish is being affected; 3. A requirement to address eight factors of each effect (nature, proximity, timing, duration, probability, frequency, distribution, and magnitude); 4. Tracking of effects, on the landscape, of previous Federal actions and current proposed actions to determine aggregated effects, at the scale of watersheds. The four agencies conduct ESA consultation using the “Streamlined Consultation Procedures for Section 7 of the [ESA]” ..., which is an interage