[Federal Register Volume 88, Number 63 (Monday, April 3, 2023)]
[Proposed Rules]
[Pages 19583-19604]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-06310]
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DEPARTMENT OF THE INTERIOR
Bureau of Land Management
43 CFR Parts 1600 and 6100
[LLHQ230000.23X.L117000000.PN0000]
RIN 1004-AE92
Conservation and Landscape Health
AGENCY: Bureau of Land Management, Interior.
ACTION: Proposed rule.
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SUMMARY: The Bureau of Land Management (BLM) proposes new regulations
that, pursuant to the Federal Land Policy and Management Act of 1976
(FLPMA), as amended, and other relevant authorities, would advance the
BLM's mission to manage the public lands for multiple use and sustained
yield by prioritizing the health and resilience of ecosystems across
those lands. To ensure that health and resilience, the proposed rule
provides that the BLM will protect intact landscapes, restore degraded
habitat, and make wise management decisions based on science and data.
To support these activities, the proposed rule would apply land health
standards to all BLM-managed public lands and uses, clarify that
conservation is a ``use'' within FLPMA's multiple-use framework, and
revise existing regulations to better meet FLPMA's requirement that the
BLM prioritize designating and protecting Areas of Critical
Environmental Concern (ACECs). The proposed rule would add
[[Page 19584]]
to provide an overarching framework for multiple BLM programs to
promote ecosystem resilience on public lands.
DATES: Please submit comments on this proposed rule on or before June
20, 2023 or 15 days after the last public meeting. The BLM is not
obligated to consider comments made after this date in making its
decision on the final rule.
ADDRESSES: Mail, personal, or messenger delivery: U.S. Department of
the Interior, Director (630), Bureau of Land Management, 1849 C St. NW,
Room 5646, Washington, DC 20240, Attention: 1004-AE92.
Federal eRulemaking Portal: https://www.regulations.gov. In the
Searchbox, enter ``1004-AE-92'' and click the ``Search'' button. Follow
the instructions at this website.
For Comments on Information-Collection Requirements: Written
comments and recommendations for the information-collection
requirements should be sent within 30 days of publication of this
document to www.reginfo.gov/public/do/PRAMain. Find this specific
information collection by selecting ``Currently under Review--Open for
Public Comments'' or by using the search function. You may also provide
a copy of your comments to the BLM's Information Collection Clearance
Officer via the above address with ``Attention PRA Office,'' or via
email to blm.gov">BLM_HQ_PRA_Comments@blm.gov. Please reference OMB Control
Number 1004-0NEW and RIN 1004-AE92 in the subject line of your
comments.
FOR FURTHER INFORMATION CONTACT: Stephanie Miller, Deputy Division
Chief for Wildlife Conservation, at 202-317-0086, for information
relating to the BLM's national wildlife program or the substance of
this proposed rule. For information on procedural matters or the
rulemaking process, you may contact Chandra Little, Regulatory Analyst
for the Office of Regulatory Affairs, at 202-912-7403. Individuals in
the United States who are deaf, deafblind, or hard of hearing, or who
have a speech disability, may dial 711 (TTY, TDD, or TeleBraille) to
access telecommunications relay services. Individuals outside the
United States should use the relay services offered within their
country to make international calls to the point-of-contact in the
United States.
SUPPLEMENTARY INFORMATION:
I. Executive Summary
II. Public Comment Procedures
III. Background
IV. Section-by-Section Discussion
V. Procedural Matters
I. Executive Summary
Under FLPMA, the principles of multiple use and sustained yield
govern the BLM's stewardship of public lands, unless otherwise provided
by law. The BLM's ability to manage for multiple use and sustained
yield of public lands depends on the resilience of ecosystems across
those lands--that is, the health of the ecosystems and the ability of
the lands to deliver associated services, such as clean air and water,
food and fiber, renewable energy, and wildlife habitat. Ensuring
resilient ecosystems has become imperative, as public lands are
increasingly degraded and fragmented due to adverse impacts from
climate change and a significant increase in authorized use. To ensure
the resilience of renewable resources on public lands for future
generations, the proposed rule promotes ``conservation'' and defines
that term to include both protection and restoration activities. It
also advances tools and processes to enable wise management decisions
based on science and data.
The proposed rule provides a framework to protect intact
landscapes, restore degraded habitat, and ensure wise decisionmaking in
planning, permitting, and programs, by identifying best practices to
manage lands and waters to achieve desired conditions. To do so, the
proposed rule applies the fundamentals of land health and related
standards and guidelines to all BLM-managed public lands and uses;
current BLM policy limits their application to grazing authorizations.
In implementing the fundamentals of land health, the proposed rule
codifies the need across BLM programs to use high-quality information
to prepare land health assessments and evaluations and make
determinations about land health condition. The proposed rule requires
meaningful consultation during decisionmaking processes with Tribes and
Alaska Native Corporations on issues that affect their interests,
including the use of Indigenous Knowledge.
To support efforts to protect and restore public lands, the
proposed rule clarifies that conservation is a use on par with other
uses of the public lands under FLPMA's multiple-use and sustained-yield
framework. Consistent with how the BLM promotes and administers other
uses, the proposed rule establishes a durable mechanism, conservation
leases, to promote both protection and restoration on the public lands,
while providing opportunities for engaging the public in the management
of public lands for this purpose. The proposed rule does not prioritize
conservation above other uses; it puts conservation on an equal footing
with other uses, consistent with the plain language of FLPMA. Finally,
the proposed rule would amend the existing ACEC regulations to better
ensure that the BLM is meeting FLPMA's command to give priority to the
designation and protection of ACECs. The proposed regulatory changes
would emphasize ACECs as the principal designation for protecting
important natural, cultural, and scenic resources, and establish a more
comprehensive framework for the BLM to identify, evaluate, and consider
special management attention for ACECs in land use planning. The
proposed rule emphasizes the role of ACECs in contributing to ecosystem
resilience by providing for ACEC designation to protect landscape
intactness and habitat connectivity.
II. Public Comment Procedures
If you wish to comment on this proposed rule, you may submit your
comments to the BLM by mail, personal or messenger delivery during
regular hours (7:45 a.m. to 4:15 p.m.), Monday through Friday, except
holidays, or through the https://www.regulations.gov website (see the
ADDRESSES section).
Please make your comments on the proposed rule as specific as
possible, limit them to issues pertinent to the proposed rule, explain
the reason for any changes you recommend, and include any supporting
documentation. Where possible, your comments should reference the
specific section or paragraph of the proposal that you are addressing.
The BLM is not obligated to consider or include in the Administrative
Record for the final rule comments that we receive after the close of
the comment period (see DATES) or comments delivered to an address
other than those listed previously (see ADDRESSES).
Comments, including names and street addresses of respondents, will
be available for public review at the address listed under the
ADDRESSES section. Before including your address, telephone number,
email address, or other personal identifying information in your
comment, be advised that your entire comment--including your personal
identifying information--may be made publicly available at any time.
Although you can ask us in your comment to withhold your personal
identifying information from public review, we cannot guarantee that we
will be able to do so.
As explained below, this proposed rule includes revisions to
information-collection requirements that must be approved by the Office
of Management
[[Page 19585]]
and Budget (OMB). If you wish to comment on the revised information-
collection requirements in this proposed rule, please note that such
comments must be sent directly to the OMB in the manner described in
the DATES and ADDRESSES sections above. Please note that due to COVID-
19, electronic submission of comments is recommended.
III. Background
A. The Need for Resilient Public Lands
The BLM manages more than 245 million acres of public lands,
roughly one-tenth of the country. The BLM's stewardship of these lands
and resources is guided by FLPMA, unless otherwise provided by law.
FLPMA provides the BLM with ample authority and direction to conserve
ecosystems and other resources and values across the public lands.
Section 102(a)(8) of FLPMA states the policy of the United States that
``the public lands be managed in a manner that will protect the quality
of scientific, scenic, historical, ecological, environmental, air and
atmospheric, water resource, and archeological values; that, where
appropriate, will preserve and protect certain public lands in their
natural condition; that will provide food and habitat for fish and
wildlife and domestic animals; and that will provide for outdoor
recreation and human occupancy and use'' (43 U.S.C. 1701(a)(8)). Each
of these services and values that FLPMA authorizes the BLM to safeguard
emanates from functioning and productive native ecosystems that supply
food, water, habitat, and other ecological necessities.
Furthermore, FLPMA requires that unless ``public land has been
dedicated to specific uses according to any other provisions of law,''
the Secretary, through the BLM, must ``manage the public lands under
principles of multiple use and sustained yield'' (43 U.S.C. 1732(a)).
The term ``sustained yield'' means ``the achievement and maintenance in
perpetuity of a high-level annual or regular periodic output of the
various renewable resources of the public lands consistent with
multiple use'' (43 U.S.C. 1702(h)). The BLM recognizes this need for
ecosystems to continue to provide services and values when declaring,
in its mission statement, its goal ``to sustain the health, diversity,
and productivity of public lands for the use and enjoyment of present
and future generations.'' (blm.gov (emphasis added); see also 43 U.S.C.
1702(c).) Without ensuring that native ecosystems are functioning and
resilient, the agency risks failing on this commitment to the future.
The term ``multiple use'' means, among other things, ``the
management of the public lands and their various resource values so
that they are utilized in the combination that will best meet the
present and future needs of the American people''; ``the use of some
land for less than all of the resources''; ``a combination of balanced
and diverse resource uses that takes into account the long-term needs
of future generations for renewable and nonrenewable resources,
including, but not limited to, recreation, range, timber, minerals,
watershed, wildlife and fish, and natural scenic, scientific and
historical values''; ``harmonious and coordinated management of the
various resources without permanent impairment of the productivity of
the land and the quality of the environment with consideration being
given to the relative values of the resources and not necessarily to
the combination of uses that will give the greatest economic return or
the greatest unit output.'' (43 U.S.C. 1702(c)). FLPMA's declaration of
policy and definitions of ``multiple use'' and ``sustained yield''
reveal that conservation is a use on par with other uses under FLPMA.
The procedural, action-forcing mechanisms in this proposed rule grow
out of that understanding of multiple use and sustained yield.
Public lands are increasingly degraded and fragmented. Increased
disturbances such as invasive species, drought, and wildfire, and
increased habitat fragmentation are all impacting the health and
resilience of public lands and making it more challenging to support
multiple use and the sustained yield of renewable resources. Climate
change is creating new risks and exacerbating existing
vulnerabilities.\1\
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\1\ See generally Carr, et al., A Multiscale Index of Landscape
Intactness for the Western United States (2016), https://www.sciencebase.gov/catalog/item/57d8779de4b090824ff9acfb; Doherty
el al., A Sagebrush Conservation Design to Proactively Restore
America's Sagebrush Biome (Open-file report 2022-1081 USGS), https://pubs.er.usgs.gov/publication/ofr20221081.
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To address these threats, it is imperative for the BLM to steward
public lands to maintain functioning and productive ecosystems and work
to ensure their resilience, that is, to ensure that ecosystems and
their components can absorb, or recover from, the effects of
disturbances and environmental change. This proposed rule would pursue
that goal through protection, restoration, or improvement of essential
ecological structures and functions. The resilience of public lands
will determine the BLM's ability to effectively manage for multiple use
and sustained yield over the long term. The proposed rule, in
acknowledging this reality, identifies and requires practices to ensure
that the BLM manages the public lands to allow multiple uses while
retaining and building resilience to achieve sustained yield of
renewable resources. This proposed rule is designed to ensure that the
nation's public lands continue to provide minerals, energy, forage,
timber, and recreational opportunities, as well as habitat, protected
water supplies, and landscapes that resist and recover from drought,
wildfire, and other disturbances. As intact landscapes play a central
role in maintaining the resilience of an ecosystem, the proposed rule
emphasizes protecting those public lands with remaining intact, native
landscapes and restoring others.
B. Management Decisions To Build Resilient Public Lands
The proposed rule recognizes that the BLM has three primary ways to
manage for resilient public lands: (1) protection of intact, native
habitats; (2) restoration of degraded habitats; and (3) informed
decisionmaking, primarily in plans, programs, and permits. The BLM
protects intact landscapes using various tools, including designation
of ACECs. The proposed rule uses the term ``conservation'' in a broader
sense, however, to encompass both protection and restoration actions.
Thus, it is not limited to lands allocated to preservation, but applies
to all BLM-managed public lands and programs. While BLM policy and
guidance outlined in Manual Sections 6500, 6840, 5000, and 1740
encourage programs to implement conservation and ecosystem management,
the BLM does not currently have regulations that promote conservation
efforts for all resources. This proposed rule is intended to address
this gap in the Bureau's regulations. The proposed rule would require
the BLM to plan for and consider conservation as a use on par with
other uses under FLPMA's multiple use framework and identify the
practices that ensure conservation actions are effective in building
resilient public lands. Conservation, in this proposed rule, includes
management of renewable resources consistent with the fundamentals of
land health (described below), designed to reach desired future
conditions through protection, restoration, and other types of
planning, permitting, and program decisionmaking.
The proposed rule addresses protection of intact, native
landscapes. One of the principal tools the BLM has
[[Page 19586]]
available to manage public lands for that type of conservation use is
the designation of ACECs. ACECs are areas where special management
attention is needed to protect important historic, cultural, and scenic
values, fish, or wildlife resources, or other natural systems or
processes, or to protect human life and safety from natural hazards.
The proposed rule clarifies and expands existing ACEC regulations to
better ensure that the BLM is meeting FLPMA's command to give priority
to the designation and protection of these important areas. These
proposed regulatory changes support and enhance BLM's protection of
intact landscapes through ACEC designation and better leverage this
statutory tool for ecosystem resilience.
The proposed rule also addresses restoration of degraded
landscapes. It offers a new tool, conservation leases, that would allow
the public to directly support durable protection and restoration
efforts to build and maintain the resilience of public lands. These
leases would be available to entities seeking to restore public lands
or provide mitigation for a particular action. They would not override
valid existing rights or preclude other, subsequent authorizations so
long as those subsequent authorizations are compatible with the
conservation use. The proposed rule would establish the process for
applying for and granting conservation leases, terminating or
suspending them, determining noncompliance, and setting bonding
obligations. Conservation leases and ACECs could also provide
opportunities for co-stewardship with federally recognized Tribes and
additional protections for cultural resources.
Conservation leases would be issued for a term consistent with the
time required to achieve their objective. Most conservation leases
would be issued for a maximum of 10 years, which term would be extended
if necessary to serve the purposes for which the lease was first
issued. Any conservation lease issued for the purposes of providing
compensatory mitigation would require a term commensurate with the
impact it is offsetting.
Further, to ensure the BLM does not limit its ability to build
resilient public lands when authorizing use, the proposed rule includes
provisions related to mitigation (i.e., actions to avoid, minimize, and
compensate for certain residual impacts). The proposed rule reaffirms
the BLM's adherence to the mitigation hierarchy for all resources. The
proposed rule also requires mitigation, to the maximum extent possible,
to address adverse impacts to important, scarce, or sensitive
resources, and it sets rules for approving third-party mitigation fund
holders. There are already several existing approved third-party
mitigation fund holders that may receive and administer funds for the
mitigation of impacts to natural resources, as well as other funds
arising from legal, regulatory, or administrative proceedings that are,
subject to the condition that the amounts be received or administered
for purposes that further conservation and restoration. The new
provisions would ensure that the public enjoys the benefits of
mitigation measures and support those seeking permission to use public
lands by enhancing mitigation options.
C. Science for Management Decisions To Build Resilient Public Lands
To support conservation actions and decision making, the proposed
rule applies the fundamentals of land health (taken verbatim from the
existing fundamentals of rangeland health at 43 CFR 4180.1 (2005)) and
related standards and guidelines to all renewable-resource management,
instead of just to public-lands grazing. Broadening the applicability
of the fundamentals of land health would ensure BLM programs will more
formally and consistently consider the condition of public lands during
decisionmaking processes. Renewable resources on public lands should
meet the fundamentals of land health overall at the watershed scale.
The proposed rule recognizes, however, that in determining which
actions are required to achieve the land health standards and
guidelines, the BLM must take into account current land uses, such as
mining, energy production and transmission, and transportation, as well
as other applicable law. The BLM welcomes comments on how applying the
fundamentals of land health beyond lands allocated to grazing will
interact with BLM's management of non-renewable resources.
To implement the fundamentals of land health, the proposed rule
directs BLM programs to use high-quality information to prepare land
health assessments and evaluations and make determinations about the
causes of failing to achieve land health. Such information is derived
largely from assessing, inventorying, and monitoring renewable
resources, as well as Indigenous Knowledge. The resulting data provides
the means for detecting trends in land health and can be used to make
management decisions, implement adaptive strategies, and support
conservation efforts to build ecosystem resilience.
D. Inventory, Evaluation, Designation, and Management of ACECs
To implement FLPMA's direction to ``give priority to the
designation and protection of areas of critical environmental
concern,'' the BLM follows regulatory requirements found at 43 CFR
1610.7-2 and policy instruction found in Manual Section 1613. The BLM
currently inventories, evaluates, and designates ACECs requiring
special management direction as part of the land use planning process.
The BLM's land use planning process guides BLM resource management
decisions in a manner that allows the BLM to respond to issues and to
consider trade-offs among environmental, social, and economic values.
Further, the planning process requires coordination, cooperation, and
consultation, and provides other opportunities for public involvement
that can foster relationships, build trust, and result in durable
decisionmaking.
In the initial stages of the planning process, the BLM, through
inventories and external nominations, identifies any potential new
ACECs to evaluate for relevance, importance, and the need for special
management attention. The BLM determines whether such special
management attention is needed by evaluating alternatives in the land
use plan and considering additional issues related to the management of
the proposed ACEC, including public comments received during the
planning process. Special management measures may also provide an
opportunity for Tribal co-stewardship. In Approved Resource Management
Plans, the BLM identifies all designated ACECs and provides the
management direction necessary to protect the relevant and important
values for which the ACECs were designated.
In more than 40 years of applying the procedures found at 43 CFR
1610.7-2 and in Manual Section 1613, the BLM has identified several
needed revisions. Additionally, the BLM's procedures for considering
and designating potential ACECs are currently partially described in
regulation and partially described in agency policy. The proposed rule
would codify these procedures in regulation, providing more cohesive
direction and consistency to the agency's ACEC designation process. The
proposed rule maintains the general process for inventorying,
evaluating, designating, and managing ACECs, described here, but makes
specific changes to clarify and improve that process.
[[Page 19587]]
As part of this rulemaking, the BLM proposes establishing
procedures that require consideration of ecosystem resilience,
landscape-level needs, and rapidly changing landscape conditions in
designating and managing ACECs. The BLM may also revise the ACEC manual
and develop an ACEC handbook to integrate the existing rule as well as
the changes proposed in this rulemaking, if finalized, into policy. The
BLM would thus provide additional guidance for how to incorporate ACECs
into resource management decisions in a way that considers trade-offs
among environmental, social, and economic values during land use
planning.
E. Statutory Authority
The Federal Land Policy and Management Act of 1976, as amended, is
the BLM's organic act; it establishes the agency's mission to manage
public lands. FLPMA further establishes the policy of the United States
that public lands be managed in a manner that recognizes the nation's
need for natural resources from those lands, provides for outdoor
recreation and other human uses, maintains habitat for fish and
wildlife, preserves certain public lands in their natural condition,
and protects the quality of the scientific, scenic, historical,
ecological, environmental, water-resource, and archaeological values of
the nation's lands (43 U.S.C. 1701).
FLPMA governs the BLM's management of the public lands and directs
the BLM to manage such lands ``under principles of multiple use and
sustained yield'' (except for lands where another law directs
otherwise) (43 U.S.C. 1732(a)). Multiple use is defined as the
management of the public lands and their various resource values so
that they are utilized to the combination that will best meet the
present and future needs of the American people; making the most
judicious use of the land for some or all of these resources or related
services over areas large enough to provide sufficient latitude for
periodic adjustments in use to conform to changing needs and
conditions; the use of some land for less than all of the resources; a
combination of balanced and diverse resource uses that takes into
account the long- term needs of future generations for renewable and
nonrenewable resources, including, but not limited to, recreation,
range, timber, minerals, watershed, wildlife and fish, and natural
scenic, scientific and historical values; and harmonious and
coordinated management of the various resources without permanent
impairment of the productivity of the land and the quality of the
environment with consideration being given to the relative values of
the resources and not necessarily to the combination of uses that will
give the greatest economic return or the greatest unit output. (43
U.S.C. 1702(c)). FLPMA also authorizes the Secretary to promulgate
implementing regulations necessary ``to carry out the purposes'' of the
Act (43 U.S.C. 1740). The rule proposed here under that authority would
(1) define and regulate conservation use on the public lands in service
of FLPMA's multiple-use and sustained-yield mandates; (2) provide for
third party authorizations to use the public lands for conservation
under FLPMA section 302(b) (43 U.S.C. 1732(b)); and (3) revise the
existing regulations implementing FLPMA's direction in sections 201(a)
and 202(c)(3) (43 U.S.C. 1711(a), 1712(c)(3)) that the BLM shall give
priority to ACECs. (See also 43 U.S.C. 1701(a)(11) (``it is the policy
of the United States that--regulations and plans for the protection of
public land areas of critical environmental concern be promptly
developed.'')
Section 2002 of the Omnibus Public Land Management Act of 2009 (16
U.S.C. 7202) legislatively established the National Landscape
Conservation System (NLCS), to include public lands carrying certain
executive or congressional designations and set parameters for the
management of lands within the system. NLCS lands are subject to
regulatory requirements like other BLM-managed public lands. The
regulations proposed here define the term ``conservation'' in a way
that is distinct from the use of the term in section 2002. Here,
``conservation'' is a shorthand for the direction in FLPMA's multiple-
use and sustained-yield mandates to manage public lands for resilience
and future productivity. ``Conservation,'' as the term is defined in
these regulations, is part of the BLM's mission not only on lands
within the NLCS, but on all lands subject to FLPMA's multiple-use and
sustained-yield mandates. At the same time, these regulations also
would support the BLM's execution of the statutory direction in section
2002 to ``manage the [NLCS] in a manner that protects the values for
which the components of the system were designated'' (16 U.S.C.
7202(c)(2)).
F. Related Executive and Secretarial Direction
The proposed rule responds to, and advances directives set forth in
several Executive and Secretary's Orders and related policies and
strategies. These directives call on the Department of the Interior
(DOI), and the Federal Government more generally, to use landscape-
scale, science-based, collaborative approaches to natural resource
management. Recent Presidential and Secretarial directives also
emphasize the importance of responding to, and mitigating the effects
of, climate change. Executive Order 13990: Protecting Public Health and
the Environment and Restoring Science to Tackle the Climate Crisis
highlights the need to use science to reduce greenhouse gas emissions,
bolster resilience to the impacts of climate change, and prioritize
environmental justice. Executive Order 14008: Tackling the Climate
Crisis at Home and Abroad calls for quick action to build resilience
against the impacts of climate change, bolster adaptation, and increase
resilience across all operations, programs, assets, and mission
responsibilities with a focus on the most pressing climate
vulnerabilities. Section 211 of Executive Order 14008, calls on Federal
agencies to develop a Climate Action Plan. In 2021, the DOI completed
that plan, which creates policy to confront and adapt to the challenges
that climate change poses to the Department's mission, programs,
operations, and personnel.
The Department will use the best available science to take concrete
steps to adapt to and mitigate climate-change impacts on its resources.
Secretary's Order 3399: Department-Wide Approach to the Climate Crisis
and Restoring Transparency and Integrity to the Decision-Making Process
establishes a Departmental Climate Task Force to prioritize the use of
the best available science to evaluate the climate change impacts of
Federal land uses. Multiple directives related to climate change also
emphasize the importance of collaboration, science, and adaptive
management as well as the need for landscape-scale approaches to
resource management. The Departmental Manual chapter on climate-change
policy (523 DM 1), issued on December 20, 2012, directs DOI bureaus and
agencies to ``promote landscape-scale, ecosystem-based management
approaches to enhance the resilience and sustainability of linked human
and natural systems.'' The Department of the Interior Climate Action
Plan and Climate Adaptation and Resilience Policy, issued on October 7,
2021, provides further guidance.
Secretary's Order 3289: Addressing the Impacts of Climate Change on
America's Water, Land, and Other Natural and Cultural Resources, issued
on September 14, 2009, and amended on February 22, 2010, directs DOI
bureaus and agencies to work together,
[[Page 19588]]
with other Federal, State, Tribal, and local governments, and also with
private landowners, to develop landscape-level strategies for
understanding and responding to climate change impacts.
Secretary's Order 3403: Joint Secretary's Order on Fulfilling the
Trust Responsibility to Indian Tribes in the Stewardship of Federal
Lands and Waters, issued November 15, 2021, reiterates the Departments'
commitment to the United States' trust and treaty obligations as an
integral part of managing Federal lands. The Order emphasizes that
``Tribal consultation and collaboration must be implemented as
components of, or in addition to, Federal land management priorities
and direction for recreation, range, timber, energy production, and
other uses, and conservation of wilderness, refuges, watersheds,
wildlife habitat, and other values.'' The Order also notes the benefit
of incorporating Tribal expertise and Indigenous Knowledge into Federal
land and resources management.
Executive Order 14072, Strengthening the Nation's Forests,
Communities, and Local Economies, recognizes that healthy forests are
``critical to the health, prosperity, and resilience of our
communities.'' It states a policy to pursue science-based, sustainable
forest and land management; conserve America's mature and old-growth
forests on Federal lands; invest in forest health and restoration;
support indigenous traditional ecological knowledge and cultural and
subsistence practices; honor Tribal treaty rights; and deploy climate-
smart forestry practices and other nature-based solutions to improve
the resilience of our lands, waters, wildlife, and communities in the
face of increasing disturbances and chronic stress arising from climate
impacts.
The Executive order (E.O.) calls for defining, identifying, and
inventorying our nation's old and mature forests, then stewarding them
for future generations to provide clean air and water, sustain plant
and animal life, and respect their special importance to Tribal
Nations. This proposed rule would advance all of these objectives.
IV. Section-by-Section Discussion of Proposed Rule
Subpart 6101--General Information
Section 6101.1--Purpose
This section describes the overall purpose for this proposed rule.
It is designed to ensure healthy wildlife habitat, clean water, and
ecosystem resilience so that our public lands can resist and recover
from disturbances like drought and wildfire. It also aims to enhance
mitigation options, establishing a regulatory framework for those
seeking to use the public lands, while also ensuring that the public
enjoys the benefits of mitigation measures. The proposed rule discusses
the use of protection and restoration actions, as well as tools such as
land health evaluations, inventory, assessment, and monitoring.
Pursuant to Executive Order 14072, Strengthening the Nation's Forests,
Communities, and Local Economies, and consistent with managing for
multiple use and sustained yield, the BLM is working on various aspects
of ensuring that forests on Federal lands, including old and mature
forests, are managed to: promote their continued health and resilience;
retain and enhance carbon storage; conserve biodiversity; mitigate the
risk of wildfires; enhance climate resilience; enable subsistence and
cultural uses; provide outdoor recreational opportunities; and promote
sustainable local economic development. While there are ongoing inter-
departmental efforts related to implementing the Executive Order, the
BLM is also interested in public comments on whether there are
opportunities for this rule to incorporate specific direction to
conserve and improve the health and resilience of forests on BLM-
managed lands. What additional or expanded provisions could address
this issue in this rule? How might the BLM use this rule to foster
ecosystem resilience of old and mature forests on BLM lands?
Section 6101.2--Objectives
This section lists the six specific objectives of the proposed
rulemaking. These objectives were discussed at length earlier in the
preamble for this proposed rule.
Section 6101.3--Authority
This section identifies the authorities under which this proposed
rule will be promulgated, which include the Federal Land Policy and
Management Act of 1976 (43 U.S.C. 1701 et seq.), as amended, and the
Omnibus Public Land Management Act of 2009 (16 U.S.C. 7202).
Section 6101.4--Definitions
This section provides new definitions for concepts such as
conservation, resilient ecosystems, sustained yield, mitigation, and
unnecessary or undue degradation, along with others used throughout the
proposed rule text. These definitions apply only in 43 CFR part 6100.
The proposed rule would define the term ``best management
practices'' as state-of-the-art, efficient, appropriate, and
practicable measures for avoiding, minimizing, rectifying, reducing,
compensating for, or eliminating impacts over time. This definition
would provide clarity and consistency as the BLM authorizes restoration
and compensatory mitigation actions under the proposed rule.
The proposed rule would define the term ``casual use'' so that, in
reference to conservation leases, it would clarify that the existence
of a conservation lease would not in and of itself preclude the public
from accessing public lands for noncommercial activities such as
recreation. Some public lands could be temporarily closed to public
access for purposes authorized by conservation leases, such as
restoration activities or habitat improvements. However, in general,
public lands leased for conservation purposes under the proposed rule
would continue to be open to public use.
The proposed rule would define ``conservation'' in the context of
these regulations to mean maintaining resilient, functioning ecosystems
by protecting or restoring natural habitats and ecological functions.
The overarching purpose of the proposed rule is to promote the use of
conservation to ensure ecosystem resilience, and in doing so the
proposed rule would clarify conservation as a use within the BLM's
multiple use framework, including in decisionmaking, authorization, and
planning processes. The proposed rule would include a stated objective
to promote conservation on public lands, and proposed subpart 6102
would outline principles, directives, management actions and tools--
including establishing a new tool in conservation leases--to meet this
objective and fulfill the purpose of the proposed rule. Because
conservation is the foundational concept for the proposed regulations,
the proposed definition would provide important guidance and clarity
for the BLM to meet the spirit and intent of the proposed rule. Within
the framework of the proposed rule, ``protection'' and ``restoration''
together constitute conservation.
The proposed rule would define the term ``disturbance'' to provide
the BLM with guidance in identifying and assessing impacts to
ecosystems, restoring affected public lands, and minimizing and
mitigating future impacts. Identifying and mitigating disturbances and
restoring ecosystems are important components of ensuring ecosystem
resilience on public lands.
The proposed rule would define the term ``effects'' as the direct,
indirect,
[[Page 19589]]
and cumulative impacts from a public land use, and would clarify that
the term should be viewed synonymously with the term ``impacts'' for
the purposes of the rule.
The proposed rule would define the term ``high-quality
information'' so that its use would ensure that the best available
scientific information underpins decisions and actions that would be
implemented under the proposed rule to achieve ecosystem resilience.
The proposed definition would also clarify that Indigenous Knowledge
can be high-quality information that should be considered alongside
other information that meets the standards for objectivity, utility,
integrity, and quality set forth in Federal law and policy.
The proposed rule would define the terms ``important,'' ``scarce,''
and ``sensitive'' resources to provide clarity and consistency in BLM's
implementation of mitigation requirements, including under the proposed
rule.
The proposed rule would define the term ``Indigenous Knowledge'' to
reflect the Department of the Interior's policies, responsibilities,
and procedures to respect, and equitably promote the inclusion of,
Indigenous Knowledge in the Department's decision making, resource
management, program implementation, policy development, scientific
research, and other actions.
The proposed rule would define the term ``intact landscape'' to
guide the BLM with implementing direction. The proposed rule (Sec.
6102.1) would require the BLM to identify intact landscapes on public
lands, manage certain landscapes to protect their intactness, and
pursue strategies to protect and connect intact landscapes.
The proposed rule would define ``land enhancement'' to provide
clarity for interpreting provisions of the proposed rule that would
authorize the BLM to issue conservation leases for the purpose of
facilitating land enhancement activities.
The proposed rule would define ``landscape'' to characterize a
meaningful area of land and waters on which restoration, protection and
other management actions will take place. Assessing how BLM's
management can affect the functionality and resilience of ecosystems
may require considering resources at the landscape scale.
The proposed rule would define ``mitigation'' consistent with the
definition provided by the Council on Environmental Quality regulations
(40 CFR 1508.20), which identify various ways to address adverse
impacts to resources, including steps to avoid, minimize, and
compensate for residual impacts. As a tool to achieve ecosystem
resilience of public lands, the BLM will generally apply a mitigation
hierarchy to address impacts to public land resources, seeking to
avoid, then to minimize, and then to compensate for any residual
impacts. This definition and the related provisions in this proposed
rule supplement existing DOI policy, which among other things provides
boundaries to ensure that compensatory mitigation is durable and
effective.
The proposed rule would define the term ``mitigation strategies''
to identify documents that identify, evaluate, and communicate
potential mitigation needs and mitigation measures in advance of
anticipated public land uses.
The proposed rule would define the term ``monitoring'' to describe
a critical suite of activities involving observation and data
collection to evaluate (1) existing conditions, (2) the effects of
management actions, or (3) the effectiveness of actions taken to meet
management objectives. Management for ecosystem resilience requires the
BLM to understand how proposed use activities impact resource condition
at many scales. Monitoring is a critical component of BLM's Assessment,
Inventory and Management (AIM) framework that provides a standardized
strategy for assessing natural resource condition and trends on BLM
public lands.
The proposed rule would define the term ``permittee'' to identify
those persons with a valid permit, right-of-way grant, lease, or other
land use authorization from the BLM. The proposed rule largely
discusses ``permittees'' when identifying the responsibility of parties
in the context of mitigation and in discussing the opportunities to
rely on third parties in complying with mitigation requirements.
The proposed rule would define ``protection'' in the context of the
overarching purpose of the rule, which is to promote the use of
conservation measures to ensure ecosystem resilience of public lands.
``Protection'' is a critical component of conservation, alongside
restoration, and describes acts or processes to preserve resources and
keep them safe from degradation, damage, or destruction. The proposed
rule (Sec. 6101.2) would include a stated objective to promote the
protection of intact landscapes on public lands, as a critical means to
achieve ecosystem resilience.
The proposed rule would define ``public lands'' in order to clarify
the scope of the proposed rule and its intended application to all BLM-
managed lands and uses. The proposed definition is the same as the
definition of ``public lands'' that appears at Sec. 6301.5.
The proposed rule would define ``reclamation'' to identify
restoration practices intended to achieve an outcome that reflects
project goals and objectives, such as site stabilization and
revegetation. While ``reclamation'' is a part of a continuum of
restoration practices, it contrasts with other actions that are
specifically designed to recover ecosystems that have been degraded,
damaged, or destroyed. Reclamation often involves initial practices
that can prepare projects or sites for further restoration activities.
The proposed rule (Sec. 6102.4-2) discusses reclamation in the context
of bonding conservation leases to ensure lessees hold sufficient bond
amounts to provide for the reclamation of the conservation lease
area(s) and the restoration of any lands or surface waters adversely
affected by conservation lease operations.
The proposed rule would define ``resilient ecosystems'' in the
context of the rule's foundational precept that BLM's management of
public lands on the basis of multiple use and sustained yield relies on
resilient ecosystems. The purpose of the proposed rule is to promote
the use of conservation to ensure that ecosystems on public lands can
resist disturbance maintain and regain their function following
environmental stressors such as drought and wildfire. The proposed rule
identifies and requires the use of protection and restoration actions,
as well as tools such as land health evaluations, inventory,
assessment, and monitoring to ensure BLM is managing for resilient
ecosystems.
The proposed rule would define ``restoration'' in the context of
the overarching purpose of this proposed rule which is to promote the
use of conservation to ensure the ecosystem resilience of public lands.
``Restoration'' is a critical component of conservation, alongside
protection, and describes acts or processes of conservation that assist
the recovery of an ecosystem that has been degraded, damaged, or
destroyed. The BLM employs a variety of restoration approaches,
including mitigation, remediation, revegetation, rehabilitation, and
reclamation. The proposed rule (Sec. 6102.3) would direct the BLM to
emphasize restoration across the public lands and requires the
inclusion of a restoration plan in any new or revised Resource
Management Plan.
The proposed rule would use the FLPMA definition of ``sustained
yield.''
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This proposed rule promotes the use of conservation to achieve
resilient ecosystems on public lands, which are essential to managing
for multiple use and sustained yield.
The proposed rule would define ``unnecessary or undue degradation''
in the context of these regulations to mean ``harm to land resources or
values that is not needed to accomplish a use's goals or is excessive
or disproportionate.'' This proposed definition is consistent with
BLM's affirmative obligation under FLPMA to take action to prevent
unnecessary or undue degradation. The proposed rule would establish
overarching principles for ecosystem resilience and would direct the
BLM to implement those principles in part by preventing unnecessary or
undue degradation in its decisionmaking.
Section 6101.5--Principles for Ecosystem Resilience
The proposed rule relies upon express direction provided in FLPMA
to manage public lands on the basis of multiple use and sustained
yield, and it would establish the principle that the BLM must conserve
renewable natural resources at a level that maintains or improves
ecosystem resilience in order to achieve this mission.
Section 6101.5(d) in the proposed rule would direct authorized
officers to implement principles of ecosystem resilience by recognizing
conservation as a land use within the multiple use framework, including
in decisionmaking, authorization, and planning processes; protecting
and maintaining the fundamentals of land health; restoring and
protecting intact public lands; applying the full mitigation hierarchy
to address impacts to species, habitats, and ecosystems from land use
authorizations; and preventing unnecessary or undue degradation.
Subpart 6102--Conservation Use To Achieve Ecosystem Resilience
The proposed rule would clarify that conservation is a use on par
with other uses of public lands under FLPMA's multiple use framework.
FLPMA directs the BLM to manage the public lands in a manner that
protects the quality of ecological, wildlife, recreation, scenic,
environmental, scientific, air, and water resources, among other
resources and values, and that protects certain public lands in their
natural condition. The BLM implements this mandate through land use
plan designations, allocations, and other planning decisions that
conserve public land resources and seek to balance conservation use
with other uses such as energy development and recreation. The BLM also
implements this mandate in other decisionmaking and management actions
by promoting conservation use, limiting subsequent authorizations when
incompatible with conservation use, and mitigating impacts to natural
resources on public lands. The proposed rule would provide specific
direction for implementing certain programs in a way that emphasizes
conservation use and provide new tools and direction for managing
conservation use to ensure ecosystem resilience on public lands.
Section 6102.1--Protection of Intact Landscapes
Section 6102.1(a) of the proposed rule would identify the
principles for protecting intact landscapes in the context of increased
pressure and increased landscape vulnerability due to climate change
and other disturbance. Section 6102.1(b) would call on authorized
officers to prioritize protection of such landscapes.
Section 6102.2--Management To Protect Intact Landscapes
Authorized officers would be required by Sec. 6102.2(a) and (b) to
identify and seek to maintain intact landscapes, including by utilizing
available watershed condition classifications and other available data.
During the resource management planning process, some tracts of public
lands should be put into a conservation use, such as by appropriately
designating or allocating the land, to maintain or improve ecosystem
resilience. When determining, through planning, whether conservation
use is appropriate in a given area, authorized officers would determine
``which, if any'' landscapes to manage to protect intactness,
necessarily taking into account other potential uses in accordance with
the BLM's multiple use management approach. (Sec. 6102.2(b)) In
identifying the areas that are most suitable for management as intact
landscapes, the BLM could work with communities to identify areas that
the communities have targeted for strategic growth and development;
managing those areas for intactness is less likely to be appropriate.
Section 6102.2(c) would require authorized officers to prioritize
acquisition of lands or interests in lands that would further protect
and connect intact landscapes and functioning ecosystems, and Sec.
6102.2(d) would direct the BLM to develop a national system for
collecting and tracking disturbance data and to use those data to
minimize disturbance and improve ecosystem resilience.
Section 6102.3--Restoration
Restoration is the process of assisting the recovery of an
ecosystem that has been degraded, damaged, or destroyed. The BLM
employs a variety of restoration approaches, including mitigation,
remediation, revegetation, rehabilitation, and reclamation. The
proposed rule would direct the BLM to emphasize restoration across the
public lands to enable achievement of its sustained yield mandate and
would encourage active management to promote restoration when
appropriate to achieve ecosystem resilience.
Section 6102.3-1--Restoration Prioritization
Section 6102.3-1 would direct authorized officers to identify
priority landscapes for restoration at least every five years.
Landscape prioritization is to be based on land health and watershed
condition assessments, the likelihood that restoration efforts would
succeed, partnership opportunities that would enable coordination
across a broader landscape, benefits to local communities, and
opportunities also to prevent unnecessary or undue degradation of the
public lands.
Section 6102.3-2--Restoration Planning
The proposed rule would require authorized officers to include a
restoration plan in any new or revised Resource Management Plan, which
would have to address criteria set forth in Sec. 6102.3-2(a). Included
in the restoration plan would be actions that, under Sec. 6102.3-2(b),
would be implemented to achieve set goals and objectives; the actions
would have to be performed at the appropriate spatial and temporal
scale, and they would have to address the cause of degradation.
Authorized offers would plan in 5-year increments, but of course the
schedule could describe longer term goals and efforts. Actions would be
coordinated with partners, and the BLM would use conservation leases
issued under Sec. 6102.4 for the purpose of restoring, managing, and
monitoring priority landscapes. Locally appropriate best management
practices would be implemented in accordance with Sec. 6102.3-2(b)(5).
Authorized officers would also be required to track progress toward
achieving restoration goals and ensure restoration projects are
consistent with the land health standards, restoration goals and
objectives, best management practices, and Resource Management Plan
restoration plans.
[[Page 19591]]
Section 6102.4--Conservation Leasing
Section 302(b) of FLPMA, 43 U.S.C. 1732(b), grants the Secretary
authority to regulate through appropriate instruments the use,
occupancy, and development of the public lands. As the U.S. Court of
Appeals for the Tenth Circuit has recognized, the authority granted in
section 302(b) is considerably broader than the authority granted in
subject-specific provisions of FLPMA. Greater Yellowstone Coal. v.
Tidwell, 572 F.3d 1115, 1126-27 (10th Cir. 2009). Under that broad
authority, the proposed rule would provide a framework for the BLM to
issue conservation leases on public lands for the purpose of pursuing
ecosystem resilience through mitigation and restoration. The BLM will
determine whether a conservation lease is an appropriate mechanism
based on the context of each proposed conservation use and application,
not necessarily as a specific allocation in a land use plan.
Conservation leases could be issued to any qualified individual,
business, non-governmental organization, or Tribal government. The BLM
seeks comments on whether State and local governments, including state
agencies managing fish and wildlife, also should be eligible for
holding conservation leases.
Section 6102.4(a)(2) would establish that conservation leases would
be issued for the necessary amount of time to meet the lease objective
and specify that a lease issued for restoration or protection purposes
would be issued for a renewable term of up to 10 years, whereas a lease
issued for mitigation purposes would be issued for a term commensurate
with the impact it is mitigating. All conservation leases would be
reviewed for consistency with lease provisions at regular intervals and
could be extended beyond their primary terms.
Section 6102.4(a)(3) would specify that conservation leases may be
issued either for ``restoration or land enhancement'' or
``mitigation.'' The proposed rule would only authorize issuance of
conservation leases for ecosystem protection where that protection is
related to a restoration or land enhancement project or to support
mitigation for a particular action. For example, as part of authorizing
a renewable energy project on public lands, the BLM and the project
proponent may agree to compensate for loss of wildlife habitat by
restoring or enhancing other habitat areas. A conservation lease could
be used to protect those areas. Similarly, the BLM may require
compensatory mitigation for residual impacts that cannot be avoided. A
conservation lease could be used to put compensatory mitigation dollars
to work restoring compromised landscapes.
This provision is not intended to provide a mechanism for
precluding other uses, such as grazing, mining, and recreation.
Conservation leases should not disturb existing authorizations, valid
existing rights, or state or Tribal land use management. Rather, this
proposed rule is intended to raise conservation up to be on par with
other uses under the principles of multiple use and sustained yield.
The BLM requests public comment on the following aspects of the
conservation lease proposal.
Is the term ``conservation lease'' the best term for this
tool?
What is the appropriate default duration for conservation
leases?
Should the rule constrain which lands are available for
conservation leasing? For example, should conservation leases be issued
only in areas identified as eligible for conservation leasing in an RMP
or areas the BLM has identified (either in an RMP or otherwise) as
priority areas for ecosystem restoration or wildlife habitat?
Should the rule clarify what actions conservation leases
may allow?
Should the rule expressly authorize the use of
conservation leases to generate carbon offset credits?
Should conservation leases be limited to protecting or
restoring specific resources, such as wildlife habitat, public water
supply watersheds, or cultural resources?
Proposed Sec. 6102.4(b) and (c) would set forth the application
process for acquiring a conservation lease. Applicants would be
required to submit detailed information regarding the proposed
conservation use, anticipated impacts and costs, conformance with BLM
plans, programs and policies, and the schedule for any restoration
activities. The authorized officer would be able to require additional
information such as environmental data and proof that the applicant has
the technical and financial capability to perform the conservation
activities. Once a conservation lease is issued, Sec. 6102.4(a)(4)
would preclude the BLM, subject to valid existing rights and applicable
law, from authorizing other uses of the leased lands that are
inconsistent with the authorized conservation use. Section 6102.4(a)(5)
clarifies that the rule itself should not be interpreted to exclude
public access to leased lands for casual use of such lands, although
the purposes of a lease may require that limitations to public access
be put in place in a given instance (for example, temporarily limiting
public access to newly restored areas).
Section 6102.4(d) would provide for assignment or transfer of a
conservation lease if no additional rights would be conveyed and the
proposed assignee or transferee is qualified to hold the lease.
Conservation leases would be available on BLM-managed lands that
are not allocated to inconsistent uses, including lands within units of
the National Landscape Conservation System. The BLM requests public
comments on managing conservation leases within the National Landscape
Conservation System, including whether separate regulations should
apply to these areas.
Cost recovery, rents, and fees for conservation leases would be
governed by existing regulations at 43 CFR 2920.6 and 2920.8. Under
those regulations, the BLM must charge a rent of at least fair market
value. The BLM seeks comment on how fair market value would be
determined in the context of restoration or preservation. Would
existing methods for land valuation provide valid results? Would lands
with valuable alternative land uses be prohibitively expensive for
conservation use? Should the BLM incorporate a public benefit component
into the rent calculation to account for the benefits of ecosystem
services?
Section 6102.4-1--Termination and Suspension of Conservation Leases
Proposed Sec. 6102.4-1 would outline processes for suspending and
terminating conservation leases. Where the lease holder fails to comply
with applicable requirements, fails to use the lease for its intended
purpose, or cannot fulfill the lease's purpose, the BLM would be
authorized to suspend or terminate a conservation lease. An authorized
officer would be authorized to issue an immediate temporary suspension
of the lease upon determination that a noncompliance issue adversely
affects or poses a threat to public lands or public health. Following
termination, the lease holder would have sixty days to fulfill its
obligation to reclaim the site, i.e., return the site to its prior
condition or as otherwise provided in the lease. That obligation is
distinct from the goal of restoring the site to its ecological
potential that underlies the lease.
Section 6102.4-2--Bonding for Conservation Leases
The proposed rule includes bonding obligations for any conservation
use that
[[Page 19592]]
involves surface-disturbing activities, with Sec. 6102.4-2
establishing regulations for conservation lease bonds. The BLM seeks
public comment on whether this rule should allow authorized officers to
waive bonding requirements in certain circumstances, such as when a
Tribal Nation seeks to restore or preserve an area of cultural
importance to the Tribe. Should the waiver authority be limited to such
circumstances or are there other circumstances that would warrant a
waiver of the bonding requirement?
Section 6102.5--Management Actions for Ecosystem Resilience
Proposed Sec. 6102.5 would set forth a framework for the BLM to
make wise management decisions based on science and data, including at
the planning, permitting, and program levels, that would help to ensure
ecosystem resilience. As part of this framework, authorized officers
would be required to identify priority watersheds, landscapes, and
ecosystems that require protection and restoration efforts; develop and
implement mitigation, monitoring and adaptive management strategies to
protect resilient ecosystems; and meaningfully consult with Tribes and
Alaska Native Corporations. Authorized officers would be required to
include Indigenous Knowledge in decisionmaking and encourage Tribes to
suggest ways in which Indigenous Knowledge can be used to inform the
development of alternatives, analysis of effects, and identification of
mitigation measures.
Consistent with applicable law and the management of the area,
authorized officers would also be required to avoid authorizing any use
of the public lands that permanently impairs ecosystem resilience.
Permanent impairment of ecosystem resilience would be difficult or
impossible to avoid, for example, on lands on which the BLM has
authorized intensive uses, including infrastructure and energy projects
or mining, or where BLM has limited discretion to condition or deny the
use. The proposed rule also would require the authorized officer to
consider a precautionary approach for resource use when the impact on
ecosystem resilience is unknown or cannot be quantified and provide
justification for decisions that may impair ecosystem resilience. In
other words, the proposed rule does not prohibit land uses that impair
ecosystem resilience; it simply requires avoidance and an explanation
if such impairment cannot be avoided.
To ensure the best available science is underpinning all management
actions, the proposed rule would require the BLM to use national and
site-based assessment, inventory, and monitoring data, along with other
high-quality information, as multiple lines of evidence to evaluate
resource conditions and inform decisionmaking. In particular, proposed
Sec. 6102.5(c) would require the authorized officer to gather high-
quality data and select relevant indictors, then translate the values
from those indicators into a watershed condition classification
framework and document the results. The goal is to use monitoring
objectives and possibly conceptual models to identify if watersheds are
in properly functioning condition and how the landscape is functioning
as a whole.
Section 6102.5-1--Mitigation
The proposed rule would affirm that the BLM will generally apply
the mitigation hierarchy of avoid, minimize, and compensate for impacts
to all public land resources. Further, Sec. 6102.5-1(a) would require
mitigation to address adverse impacts in the case of important, scarce,
or sensitive resources, to the maximum extent possible.
The proposed rule would authorize the BLM to use third-party
mitigation fund holders to facilitate compensatory mitigation. Proposed
Sec. 6102.5-1(d) would require authorized officers to establish
mitigation accounts as appropriate when multiple permittees have
similar compensatory mitigation requirements, or a single permittee has
project impacts that require substantial, long-term compensatory
mitigation. Proposed Sec. 6102.5-1(f) would establish criteria that
third parties must meet to be approved as mitigation fund holders.
Among other things, the proposed rule would require potential
mitigation fund holders to have ``a history of successfully holding and
managing mitigation, escrow, or similar corporate accounts.'' This
language is intended to ensure that mitigation fund holders have
sufficient experience to ensure that they are capable of managing
funds. The BLM seeks comment on this language. Does it create a barrier
to entry for new mitigation banks? Is there alternative language that
would be preferable? The requirement that a third party lack any
``family connection'' to the mitigating party refers to the leadership
of the potential mitigation fund holder.
Subpart 6103 Tools for Achieving Ecosystem Resilience
Section 6103.1--Fundamentals of Land Health
Proposed Sec. 6103.1 would establish four fundamentals of land
health--watershed function, ecological processes, water quality, and
wildlife habitat--that would form the basis for land health standards
and guidelines that the BLM would develop in land use plans under Sec.
6103.1-1 of this proposed rule. Fundamentals of land health are
currently addressed in the BLM's grazing regulations for rangeland
health (43 CFR 4180.1 (2005)). The proposed rule would extend the
fundamentals of land health to all BLM lands and program areas. The BLM
is not proposing any changes to the four fundamentals of land health as
articulated in the applicable grazing regulations.
Section 6103.1-1--Land Health Standards and Guidelines
Proposed Sec. 6103.1-1 would instruct authorized officers to
implement land health standards and guidelines that conform to the
fundamentals of land health across all lands and program areas. This
includes reviewing land health standards and guidelines during the land
use planning process and developing new or revising existing land
health standards and guidelines as necessary, and periodically
reviewing land health standards and guidelines in conjunction with
regular land use plan evaluations. Until the authorized officer has an
opportunity to review and update land health standards and guidelines
through land use planning processes, Sec. 6103.1-1(a)(1) of the
proposed rule would direct authorized officers to apply existing land
health standards and guidelines, including those previously established
under subpart 4180 of the agency's grazing regulations (fundamentals of
rangeland health), across all lands and program areas.
Proposed Sec. 6103.1-1(b) through (d) would require the authorized
officer to establish goals, objectives, and success indicators to
ensure that each land health standard can be measured against resource
conditions and to periodically review authorized uses for consistency
with the fundamentals of land health. Once land health standards and
guidelines are established, any action in response to not meeting them
would be subject to Sec. 6103.1-2(e)(2) and taken in a manner that
takes into account existing uses and authorizations. Under the proposed
rule, the BLM may establish national indicators in support of the
implementation of the fundamentals of land health.
Section 6103.1-2--Land Health Assessments, Evaluations, and
Determinations
The proposed rule would require authorized officers to consider
land
[[Page 19593]]
health assessments, evaluations, and determinations across all program
areas to inform decisionmaking, including preparing new land health
assessments, evaluations, and determinations as warranted. Proposed
Sec. 6103.1-2(c) would provide direction for completing land health
evaluations, including using multiple lines of evidence and documenting
supporting information.
In cases where land health standards are not being achieved,
proposed Sec. 6103.1-2(d) would require a determination of causal
factors. If existing management practices are determined to be a causal
factor, the proposed rule would require the authorized officer to take
appropriate action to make significant progress toward fulfillment of
the standards and compliance with the guidelines. That requirement
would be limited, however, by the caveat that appropriate action must
be ``consistent with applicable law and the terms and conditions of
existing authorizations.'' Thus, when determining what actions are
``appropriate'' to meet the land health standards, the authorized
officer would have to take into account existing uses and
authorizations.
Section 6103.2--Inventory, Assessment, and Monitoring
The proposed rule would require the BLM to complete watershed
condition classifications as part of all land use planning. It is
anticipated that watershed condition classifications would frequently
be completed not by BLM state offices, but by national-level resources,
such as by the National Operations Center, utilizing standardized
procedures and existing data and analyses.
Proposed Sec. 6103.2(b) would clarify that the BLM's inventory of
public lands includes both landscape components and core indicators
that address land health fundamentals, and would require the use of
inventory, assessment, and monitoring information, including
standardized quantitative monitoring data, remote sensing maps, and
geospatial analyses, to inform decisionmaking across program areas.
Proposed Sec. 6103.2(c) would establish principles to ensure that
inventory, assessment, and monitoring activities are evidence-based,
standardized, efficient, and defensible.
Subpart 1610--Resource Management Planning
Section 1610.7-2--Designation of Areas of Critical Environmental
Concern
The proposed rule includes changes to the land use planning
regulations to emphasize the role of ACECs as the principal designation
for public lands where special management attention is required to
protect important natural, cultural, and scenic resources, and to
protect against natural hazards. It would also emphasize the
requirement that the BLM give priority to the identification,
evaluation, and designation of ACECs during the planning process as
required by FLPMA and would provide additional clarity and direction
for complying with this statutory requirement. The proposed rule would
codify in regulation procedures for considering and designating
potential ACECs that are currently only partially described in
regulation and partially described in agency policy.
Proposed Sec. 1610.7-2(c) would require authorized officers to
identify areas that may be eligible for ACEC status early in the
planning process and would highlight the need to target areas for
evaluation based on resource inventories, internal and external
nominations, and existing ACEC designations.
Proposed Sec. 1610.7-2(d) would provide more specificity for
determining whether an area meets the criteria for ACEC designation of
relevance, importance, and requiring special management attention.
Requiring a finding that special management attention is necessary is
consistent with BLM practice but is not a feature of the existing
regulations.
Under the proposed rule Sec. 1610.7-2(d)(2), resources, values,
systems, or processes may meet the importance criterion if they
contribute to ecosystem resilience, including by protecting landscape
intactness and habitat connectivity. The proposed rule would also
clarify the scope of the importance criterion by striking ``more than
local significance'' in current Sec. 1610.7-2(a)(2). The BLM has found
the use of ``local significance'' in the existing definition creates
confusion because it may be conflated with the separate question under
NEPA as to whether environmental impacts are ``significant.'' Moreover,
requiring something more than ``local significance'' is unnecessarily
restrictive. In the context of ACECs, a wide variety of areas can
support the BLM's management of public lands by contributing to
ecosystem resilience.
Proposed Sec. 1610.7-2(e) would newly emphasize that resources,
values, systems, processes, or hazards that are found to have relevance
and importance are likely to warrant special management attention and
would further identify four considerations when evaluating the need for
special management attention, to inform potential ACEC designations in
a land use plan.
Proposed Sec. 1610.7-2(g) would clarify that land use plans must
include at least one plan alternative that analyzes in detail all
proposed ACECs, in order to analyze the consequences of both providing
and not providing special management attention to identified resources.
Proposed Sec. 1610.7-2(i) would require authorized officers to
ensure that inventories used to obtain information and data on the
relevance and importance of values, resources, systems or processes,
and natural hazards are kept current, consistent with section 201(a) of
FLPMA ``so as to reflect changes in conditions and to identify new and
emerging resource and other values'' (43 U.S.C. 1711(a)). Authorized
officers (likely, here, BLM State Directors) would be required to
produce annual reports detailing activity plan status and completed and
planned implementation actions for designated ACECs.
Section 1610.7-2(j) would direct that ACEC designations may be
removed only when special management attention is no longer needed
because the identified resources are being provided an equal or greater
level of protection through alternate means or the identified resources
are no longer present.
The proposed rule eliminates the existing requirement in current
Sec. 1610.7-2(b) that the BLM publish a Federal Register notice
relating to proposed ACECs and allow for 60 days of comment, in
addition to the other Federal Register publication requirements that
apply to land use planning. The BLM has found that these Federal
Register publication requirements do not provide value above and beyond
the general public involvement process, including through notices in
the Federal Register, that otherwise applies to land use planning. The
public would still have opportunity to comment on proposed ACECs
through that latter process.
Finally, throughout the proposed rule under Sec. 1610.7-2, the
term ``value'' would be replaced with the phrase ``resources, values,
systems, processes, or hazards.'' ``Value'' has been used as a
shorthand reference to all the items in the longer phrase but doing so
has created confusion. The proposed rule provides for this change as
well as other minor changes designed to improve readability throughout
the rule text.
The proposed rule provides that ``ACECs shall be managed to protect
the relevant and important resources for
[[Page 19594]]
which they are designated.'' The BLM is interested in public comment on
whether additional regulatory text would help the BLM best fulfill its
mandate under FLPMA section 202(c)(3) to ``give priority to the . . .
protection of [ACECs].'' Should the regulations further specify how
ACECs should be managed?
Severability
The provisions of the proposed rule should be considered
separately. If any portion of the rule were stayed or invalidated by a
reviewing court, the remaining elements would continue to provide BLM
with important and independently effective tools to advance
conservation on the public lands. Hence, if a court prevents any
provision of one part of this proposed rule from taking effect, that
should not affect the other parts of the proposed rule. The remaining
provisions would remain in force.
V. Procedural Matters
Regulatory Planning and Review (Executive Order 12866 and 13563)
Executive Order (E.O.) 12866 provides that the Office of
Information and Regulatory Affairs (OIRA) in the Office of Management
and Budget will review all significant rules. The OIRA has determined
that this proposed rule is not significant.
E.O. 13563 reaffirms the principles of E.O. 12866 while calling for
improvements in the Nation's regulatory system to promote
predictability, reduce uncertainty, and use the best, most innovative,
and least burdensome tools for achieving regulatory ends. The E.O.
directs agencies to consider regulatory approaches that reduce burdens
and maintain flexibility and freedom of choice for the public where
these approaches are relevant, feasible, and consistent with regulatory
objectives. E.O. 13563 emphasizes further that regulations must be
based on the best available science and that the rule making process
must allow for public participation and an open exchange of ideas. The
BLM has developed this proposed rule in a manner consistent with these
requirements.
As outlined in the attached Economic and Threshold Analysis, the
proposed rule would not have a significant effect on the economy.
For more detailed information, see the Economic and Threshold
analysis prepared for this proposed rule. This analysis has been posted
in the docket for the rule on the Federal eRulemaking Portal: https://www.regulations.gov. In the Searchbox, enter ``RIN 1004-AE92'', click
the ``Search'' button, open the Docket Folder, and look under
Supporting Documents.
Regulatory Flexibility Act
This proposed rule will not have a significant economic effect on a
substantial number of small entities under the Regulatory Flexibility
Act (RFA) (5 U.S.C. 601 et seq.). The RFA generally requires that
Federal agencies prepare a regulatory flexibility analysis for rules
subject to the ``notice-and-comment'' rulemaking requirements found in
the Administrative Procedure Act (5 U.S.C. 500 et seq.), if the rule
would have a significant economic impact, whether detrimental or
beneficial, on a substantial number of small entities. See 5 U.S.C.
601-612. Congress enacted the RFA to ensure that government regulations
do not unnecessarily or disproportionately burden small entities. Small
entities include small businesses, small governmental jurisdictions,
and small not-for-profit enterprises.
For the purpose of conducting its review pursuant to the RFA, the
BLM believes that the proposed rule would not have a ``significant
economic impact on a substantial number of small entities,'' as that
phrase is used in 5 U.S.C. 605.
Congressional Review Act (CRA)
This proposed rule is not a major rule under 5 U.S.C. 804(2), the
Congressional Review Act. This proposed rule:
a. Does not have an annual effect on the economy of $100 million or
more. The BLM did not estimate the annual benefits that this proposed
rule would provide to the economy. Please see the Economic and
Threshold Analysis for this proposed rule for a more detailed
discussion.
b. Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions. The proposed rule would benefit small
businesses by streamlining the BLM's processes.
c. Does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to compete with foreign-based enterprises. The
proposed rule would not have adverse effects on any of these criteria.
Unfunded Mandates Reform Act (UMRA)
This proposed rule does not impose an unfunded mandate on State,
local, or tribal governments, or the private sector of more than $100
million per year. The proposed rule does not have a significant or
unique effect on State, local, or tribal governments, or the private
sector. Under the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1531 et
seq.), agencies must prepare a written statement about benefits and
costs, prior to issuing a proposed or final rule that may result in
aggregate expenditure by State, local, and tribal governments, or the
private sector, of $100 million or more in any 1 year.
This proposed rule is not subject to the requirements under the
UMRA. The proposed rule does not contain a Federal mandate that may
result in expenditures of $100 million or more for State, local, and
tribal governments, in the aggregate, or to the private sector in any
one year. The proposed rule would not significantly or uniquely affect
small governments. A statement containing the information required by
the UMRA is not required.
Government Actions and Interference With Constitutionally Protected
Property Rights Takings (E.O. 12630)
This proposed rule does not effect a taking of private property or
otherwise have taking implications under E.O. 12630. Section 2(a) of
E.O. 12630 identifies policies that do not have takings implications,
such as those that abolish regulations, discontinue governmental
programs, or modify regulations in a manner that lessens interference
with the use of private property. The proposed rule would not interfere
with private property. A takings implication assessment is not
required.
Federalism (E.O. 13132)
Under the criteria in section 1 of E.O. 13132, this proposed rule
does not have sufficient federalism implications to warrant the
preparation of a federalism summary impact statement. It does not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government. A
federalism summary impact statement is not required.
Civil Justice Reform (E.O. 12988)
This proposed rule complies with the requirements of E.O. 12988.
Specifically, this proposed rule:
a. Meets the criteria of section 3(a) requiring that all
regulations be reviewed to eliminate errors and ambiguity and be
written to minimize litigation; and
b. Meets the criteria of section 3(b)(2) requiring that all
regulations be written
[[Page 19595]]
in clear language and contain clear legal standards.
Consultation and Coordination With Indian Tribes (E.O. 13175 and
Departmental Policy)
The Department of the Interior (DOI) strives to strengthen its
government-to-government relationship with Indian Tribes through a
commitment to consultation with Indian Tribes and recognition of their
right to self-governance and tribal sovereignty. We have evaluated this
proposed rule under the DOI's consultation policy and under the
criteria in E.O. 13175 and have determined that it has no substantial
direct effects on federally recognized Indian Tribes, on the
relationship between the Federal Government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
Government and Indian Tribes, and that consultation under the DOI's
tribal consultation policy is not required. However, consistent with
the DOI's consultation policy (52 Departmental Manual 4) and the
criteria in E.O. 13175, the BLM will consult with federally recognized
Indian Tribes on any proposal that may have a substantial direct effect
on the Tribes.
Paperwork Reduction Act
The Paperwork Reduction Act (PRA) (44 U.S.C. 3501-3521) generally
provides that an agency may not conduct or sponsor, and not
withstanding any other provision of law a person is not required to
respond to, a collection of information, unless it displays a currently
valid OMB control number. This proposed rule contains information
collection requirements that are subject to review by the Office of
Management and Budget (OMB) under the PRA. Collections of information
include any request or requirement that persons obtain, maintain,
retain, or report information to an agency, or disclose information to
a third party or to the public (44 U.S.C. 3502(3) and 5 CFR 1320.3(c)).
OMB has generally approved the existing information collection
requirements contained in the BLM's regulations contained in 43 CFR
subpart 1610 under OMB Control Number 1004-0212. The proposed rule
would not result in any new or revised information collection
requirements that are currently approved under that OMB Control Number.
For the reasons set out in the preamble, the BLM proposes to amend
43 CFR by creating part 6100 which would result in new information
collection requirements that require approval by OMB. The information
collection requirement contained in part 6100 will allow the BLM to
issue a conservation lease to qualified individuals or businesses or
State, local, or Tribal governments for the purpose of ensuring
ecosystem sustainability. The proposed new information collection
requirements contained in this proposed rule are discussed below.
New Information Collection Requirements
Section 6102.4 (b) and (c)--Conservation Leasing: Applications for
conservation leases shall be filed with the Bureau of Land Management
office having jurisdiction over the public lands covered by the
application. Applications for conservation leases shall include a
description of the proposed conservation use in sufficient detail to
enable the authorized officer to evaluate the feasibility of the
proposed conservation use, the impacts, if any, on the environment, the
public or other benefits from the land use, the approximate cost of the
proposed conservation use, any threat to public health and safety posed
by the proposed use, and whether the proposed use is, in the opinion of
the applicant, in conformance with the Bureau of Land Management plans,
programs, and policies for the public lands covered by the proposed
use. The description shall include but not be limited to:
Details of the proposed uses and activities;
A description of all facilities for which authorization is
sought, including access needs and special types of easements that may
be needed;
A map of sufficient scale to allow the required
information to be legible as well as a legal description of primary and
alternative project locations;
Schedule for restoration or land improvement activities;
and
Name and legal mailing address of the applicant.
Section 6102.4(c)(1)(E)--Conservation Leasing (additional
information): After review of the project description, the authorized
officer may require the applicant to provide additional studies or to
submit additional environmental data if such data are necessary for the
BLM to decide whether to issue, issue with modification, or deny the
proposed conservation use. An application for the use of public lands
may require documentation or proof of application for additional
private, State, local or other Federal agency licenses, permits,
easements, certificates, or other approval documents. The authorized
officer may require evidence that the applicant has, or prior to
commencement of conservation activities will have the technical and
financial capability to operate, maintain, and terminate the authorized
land use.
Section 6102.4-1(d)(3)--Termination and Suspension of Conservation
Leases: Upon determination that there is noncompliance with the terms
and conditions of a conservation lease which adversely affects land or
public health or safety, or impacts ecosystem sustainability, the
authorized officer shall issue an immediate temporary suspension. Any
time after an order of suspension has been issued, the holder may file
with the authorized officer a request for permission to resume. The
request shall be in writing and shall contain a statement of the facts
supporting the request.
Section 6102.4-2(a)--Bonding for Conservation Leases: Prior to the
commencement of surface-disturbing activities, the conservation lease
holder shall submit a surety or a personal bond, conditioned upon
compliance with all the terms and conditions of the conservation
lease(s) covered by the bond.
Section 6102.5-1(e)--Mitigation--Approval of third parties as
mitigation fund holders: Sec. 6102.5-1(e) would allow in certain
limited circumstances authorized officers to approve third parties as
mitigation fund holders to establish mitigation accounts for use by
entities granted land use authorizations by the BLM. The authorized
officer will approve the use of a mitigation account by a permittee
only if a mitigation fund holder has a written agreement with the BLM.
Section 6102.5-1(g)--Mitigation--Approval of third parties as
mitigation fund holders/State and local government agencies: State and
local government agencies are limited in their ability to accept,
manage, and disburse funds for the purpose outlined in Sec. 6102.5-1
and generally should not be approved by the BLM to hold mitigation
funds for compensatory mitigation sites on public or private lands. An
exception may be made where a government agency is able to demonstrate,
to the satisfaction of the BLM, that they are acting as a fiduciary for
the benefit of the mitigation project or site, essentially as if they
are a third party, and can show that they have the authority and
perform the duties described in Sec. 6102.5-1.
The information collection requirements contained in this proposed
rule are needed to ensure that accountability through restoration
monitoring and tracking is carried out effectively and that project
goals are being met. The estimated annual
[[Page 19596]]
information collection burdens for this proposed rule are outlined
below:
Title of Collection: Ecosystem Resilience and Conservation (43 CFR
part 6100).
OMB Control Number: 1004-0NEW.
Form Number: None.
Type of Review: New collection of information (Request for a new
OMB Control Number).
Respondents/Affected Public: Private sector businesses; Not-for-
profit organizations; and State, local, or Tribal governments.
Respondent's Obligation: Required to Obtain or Retain a Benefit.
Frequency of Collection: On occasion.
Estimated Completion Time per Response: Varies from 5 hours to 240
hours per response, depending on activity.
Number of Respondents: 37.
Annual Responses: 37.
Annual Burden Hours: 1,380.
Annual Burden Cost: $0.
If you want to comment on the information-collection requirements
of this proposed rule, please send your comments and suggestions on
this information-collection by the date indicated in the DATES and
ADDRESSES sections as previously described.
National Environmental Policy Act (NEPA)
The BLM intends to apply the Department Categorical Exclusion (CX)
at 43 CFR 46.210(i) to comply with the National Environmental Policy
Act. This CX covers policies, directives, regulations, and guidelines
that are of an administrative, financial, legal, technical, or
procedural nature or whose environmental effects are too broad,
speculative, or conjectural to lend themselves to meaningful analysis
and will later be subject to the NEPA process, either collectively or
case-by-case. The BLM plans to document the applicability of the CX
concurrently with development of the final rule.
Actions Concerning Regulations That Significantly Affects Energy
Supply, Distribution, or Use (E.O. 13211)
Federal agencies must prepare and submit to OMB a Statement of
Energy Effects for any proposed significant energy action. A
``significant energy action'' is defined as any action by an agency
that: (1) Is a significant regulatory action under Executive Order
12866, or any successor order; (2) Is likely to have a significant
adverse effect on the supply, distribution, or use of energy; or (3) Is
designated by the Administrator of OIRA as a significant energy action.
This proposed rule is not a significant action within the meaning of
Executive Order 12866 or any successor order. This proposed rule does
not affect energy supply or distribution.
Clarity of This Regulation (Executive Orders 12866, 12988 and 13563)
We are required by Executive Orders 12866 (section 1(b)(12)), 12988
(section 3(b)(1)(B)), and 13563 (section 1(a)), and by the Presidential
Memorandum of June 1, 1988, to write all rules in plain language. This
means that each rule must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use common, everyday words and clear language rather than
jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in the ADDRESSES section. To
better help the BLM revise the proposed rule, your comments should be
as specific as possible. For example, you should tell us the numbers of
the sections or paragraphs that you find unclear, which sections or
sentences are too long, the sections where you feel lists or tables
would be useful, etc.
Authors
The principal authors of this proposed rule are: Stephanie Miller,
BLM Deputy Division Chief, Wildlife Conservation; Darrin King, BLM
Division of Regulatory Affairs; Chandra Little, BLM Division of
Regulatory Affairs, assisted by the DOI Office of the Solicitor.
Laura Daniel-Davis,
Principal Deputy Assistant Secretary for Land and Minerals Management.
List of Subjects
43 CFR Part 1600
Administrative practice and procedure, Coal, Environmental impact
statements, Environmental protection, Intergovernmental relations,
Public lands, Preservation and conservation.
43 CFR Part 6100
Ecosystem resilience, Conservation use, Land health, and
Restoration.
Accordingly, for the reasons set out in the preamble, the Bureau of
Land Management proposes to amend 43 CFR part 1600 and add a new 43 CFR
part 6100 as set forth below:
PART 1600--PLANNING, PROGRAMMING, BUDGETING
0
1. The authority citation for part 1600 continues to read as follows:
Authority: 43 U.S.C. 1711-1712
0
2. Amend Sec. 1610.7-2 to read as follows:
Sec. 1610.7-2 Designation of areas of critical environmental concern.
(a) An Area of Critical Environmental Concern (ACEC) designation is
the principal BLM designation for public lands where special management
is required to protect important natural, cultural, and scenic
resources, systems, or processes, or to protect life and safety from
natural hazards. The BLM designates ACECs when issuing a decision to
approve a Resource Management Plan, plan revision, or plan amendment.
ACECs shall be managed to protect the relevant and important resources
for which they are designated.
(b) In the land use planning process, authorized officers must
identify, evaluate, and give priority to areas that have potential for
designation and management as ACECs. Identification, evaluation, and
priority management of ACECs shall be considered during the development
and revision of Resource Management Plans and during amendments to
Resource Management Plans when such action falls within the scope of
the amendment (see Sec. Sec. 1610.4-1 through 1610.4-9).
(c) The Field Manager must identify areas to evaluate for
eligibility as ACECs early in the planning process, including by
considering the following sources:
(1) The Field Manager must analyze inventory data to determine
whether there are areas containing resources, values, systems,
processes, or hazards eligible for designation as ACECs.
(2) The Field Manager must evaluate existing ACECs when plans are
revised or when designations of ACECs are within the scope of an
amendment, including considering potential changes to boundaries and
management.
(3) The Field Manager must seek nominations for ACECs, during
public scoping, from the public, State and local governments, Indian
tribes, and other Federal agencies (see Sec. 1610.2(c)) when
developing new plans or revising existing plans, or when designations
of ACECs are within the scope of a plan amendment. If nominations are
received outside the planning process, interim management may be
evaluated, considered, and implemented to protect relevant and
important values until the BLM completes a planning process to
determine whether to designate the area
[[Page 19597]]
as an ACEC, in conformance with the current Resource Management Plan.
(d) To be designated as an ACEC, an area must meet the following
criteria:
(1) Relevance. The area contains resources with significant
historic, cultural, or scenic value; a fish or wildlife resource; a
natural system or process; or a natural hazard potentially impacting
life and safety.
(2) Importance. The resources, values, systems, processes, or
hazards have substantial importance, which generally requires that they
have qualities of special worth, consequence, meaning, distinctiveness,
or cause for concern. Authorized officers may consider the national or
local importance, subsistence value, or regional contribution of a
resource, value, system, or process. Resources, values, systems, or
processes may have substantial importance if they contribute to
ecosystem resilience, including by protecting intact landscapes and
habitat connectivity. A natural hazard can be important if it is a
significant threat to human life and safety.
(3) Special Management Attention. The resources, values, systems,
processes, or hazards require special management attention. ``Special
management attention'' means management prescriptions that:
(i) Conserve, protect, and restore relevant and important
resources, values, systems, processes, or that protect life and safety
from natural hazards; and
(ii) Would not be prescribed if the relevant resources, values,
systems, processes, or hazards were not present.
(e) Resources, values, systems, processes, or hazards that are
found to have relevance and importance are likely to require special
management attention. In evaluating the need for special management
attention, the Field Manager must consider:
(1) Whether highlighting the resources with the designation will
protect or increase the vulnerability of the resources, and if so, how
to tailor a designation to maximize protection and minimize unintended
impacts;
(2) The values of other resource uses in the plan;
(3) The feasibility of managing the designation; and
(4) The relationship to other types of designations available.
(f) The Field Manager must identify the boundaries of proposed
ACECs to encompass the relevant and important resources, values,
systems, processes, or hazards, and any areas required for the special
management attention needed to provide protection for the relevant and
important resources, values, systems, processes, or hazards.
(g) Planning documents must include at least one alternative that
analyzes in detail all proposed ACECs to provide for informed
decisionmaking on the trade-offs associated with ACEC designation.
(h) The approved plan shall list all designated ACECs, identify
their relevant and important resources, values, systems, processes, or
hazards, and include the special management attention, including
mitigating measures, identified for each designated ACEC.
(i) The State Director shall:
(1) Ensure that inventories used to obtain information and data on
relevance and importance are kept current. Monitoring shall be
performed and inventories shall be updated at intervals appropriate to
the sensitivity of the relevant and important resources, values,
systems, processes, or hazards, to ensure that data are available to
identify trends and emerging issues during plan evaluations (see Sec.
1610.4-9).
(2) Prioritize acquisition of inholdings within ACECs and adjacent
or connecting lands identified as holding related relevant and
important resources, values, systems, processes, or hazards as the
designated ACEC.
(3) Provide annual reports within the first quarter of each fiscal
year identifying for each designated ACEC within the State:
(i) Whether or not an activity plan is deemed necessary and, if so,
whether it has been prepared;
(ii) Implementation actions accomplished during the previous fiscal
year, highlighting those actions contributing to the conservation,
enhancement, or protection of the resources, values, systems, or
processes, or protection from natural hazards; and
(iii) Scheduled implementation measures for the ensuing fiscal
year.
(j) The State Director, through the land use planning process, may
remove the designation of an ACEC, in whole or in part, only when:
(1) The State Director finds that special management attention is
not needed because another legally enforceable mechanism provides an
equal or greater level of protection; or
(2) The State Director finds that the resources, values, systems,
processes, or natural hazards of relevance and importance are no longer
present, cannot be recovered, or have recovered to the point where
special management is no longer necessary. The findings must be
supported by data or documented changes on the ground.
0
3. Add part 6100 to read as follows:
PART 6100--ECOSYSTEM RESILIENCE
Subpart 6101--General Information
Sec.
6101.1 Purpose.
6101.2 Objectives.
6101.3 Authority.
6101.4 Definitions.
6101.5 Principles for ecosystem resilience.
Subpart 6102--Conservation Use to Achieve Ecosystem Resilience
Sec.
6102.1 Protection of intact landscapes.
6102.2 Management to protect intact landscapes.
6102.3 Restoration.
6102.3-1 Restoration prioritization.
6102.3-2 Restoration planning.
6102.4 Conservation leases.
6102.4-1 Termination and suspension of conservation leases.
6102.4-2 Building for conservation leasing.
6102.5 Management actions for ecosystem resilience.
6102.5-1 Mitigation.
Subpart 6103--Tools for Achieving Ecosystem Resilience
Sec.
6103.1 Fundamentals of land health.
6103.1-1 Land health standards and guidelines.
6103.1-2 Land health assessments, evaluations and determinations.
6103.2 Inventory, assessment and monitoring.
Authority: 16 U.S.C. 7202; 43 U.S.C. 1701 et seq.
Subpart 6101--General Information
Sec. 6101.1 Purpose.
The BLM's management of public lands on the basis of multiple use
and sustained yield relies on healthy landscapes and resilient
ecosystems. The purpose of this part is to promote the use of
conservation to ensure ecosystem resilience. This part discusses the
use of protection and restoration actions, as well as tools such as
land health evaluations, inventory, assessment, and monitoring.
Sec. 6101.2 Objectives.
The objectives of these regulations are to:
(a) Achieve and maintain ecosystem resilience when administering
Bureau programs; developing, amending, and revising land use plans; and
approving uses on the public lands;
(b) Promote conservation by protecting and restoring ecosystem
resilience and intact landscapes;
(c) Integrate the fundamentals of land health and related standards
and guidelines into resource management;
(d) Incorporate inventory, assessment, and monitoring principles
into decisionmaking and use this
[[Page 19598]]
information to identify trends and implement adaptive management
strategies;
(e) Accelerate restoration and improvement of degraded public lands
and waters to properly functioning and desired conditions; and
(f) Ensure that ecosystems and their components can absorb, or
recover from, the effects of disturbances or environmental change
through conservation, protection, restoration, or improvement of
essential structures, functions, and redundancy of ecological patterns
across the landscape.
Sec. 6101.3 Authority.
These regulations are issued under the authority of the Federal
Land Policy and Management Act of 1976 (43 U.S.C. 1701 et seq.) as
amended; and section 2002 of the Omnibus Public Land Management Act of
2009 (16 U.S.C. 7202).
Sec. 6101.4 Definitions.
As used in this part, the term:
Best management practices means state-of-the-art, efficient,
appropriate, and practicable measures for avoiding, minimizing,
rectifying, reducing, compensating for, or eliminating impacts over
time.
Casual use means any short-term, noncommercial activity that does
not cause appreciable damage or disturbance to the public lands or
their resources or improvements and that is not prohibited by closure
of the lands to such activities.
Conservation means maintaining resilient, functioning ecosystems by
protecting or restoring natural habitats and ecological functions.
Disturbance means a discrete event in time that affects the
structure and function of an ecosystem. Disturbances may be viewed as
``characteristic'' when ecosystems and species have evolved to
accommodate the disturbance attributes or ``uncharacteristic'' when the
attributes are outside an established range of variation.
Effects means the direct, indirect, and cumulative impacts from a
public land use; effects and impacts as used in this rule are
synonymous.
High-quality information means information that promotes reasoned,
fact-based agency decisions. Information relied upon or disseminated by
BLM must meet the standards for objectivity, utility, integrity, and
quality set forth in applicable federal law and policy. Indigenous
knowledge may qualify as high-quality information when that knowledge
is authoritative, consensually obtained, and meets the standards for
high-quality information.
Important, Scarce, or Sensitive resources:
(1) Important resources means resources that the BLM has determined
to warrant special consideration, consistent with applicable law.
(2) Scarce resources means resources that are not plentiful or
abundant and may include resources that are experiencing a downward
trend in condition.
(3) Sensitive resources means resources that are delicate and
vulnerable to adverse change, such as resources that lack resilience to
changing circumstances.
Indigenous Knowledge (IK) means a body of observations, oral and
written knowledge, practices, and beliefs developed by Tribes and
Indigenous Peoples through interaction and experience with the
environment. IK is applied to phenomena across biological, physical,
social, cultural, and spiritual systems. IK can be developed over
millennia, continues to develop, and includes understanding based on
evidence acquired through direct contact with the environment and long-
term experiences, as well as extensive observations, lessons, and
skills passed from generation to generation. IK is developed by
Indigenous Peoples including, but not limited to, Tribal Nations,
American Indians, Alaska Natives, and Native Hawaiians.
Intact landscape means an unfragmented ecosystem that is free of
local conditions that could permanently or significantly disrupt,
impair, or degrade the landscape's structure or ecosystem resilience,
and that is large enough to maintain native biological diversity,
including viable populations of wide-ranging species. Intact landscapes
have high conservation value, provide critical ecosystem functions, and
support ecosystem resilience.
Land enhancement means any infrastructure or other use related to
the public lands that is designed to improve production of forage;
improve vegetative composition; direct patterns of use to improve
ecological condition; provide water; stabilize soil and water
conditions; promote effective wild horse and burro management; or
restore, protect, and improve the condition of land health or fish and
wildlife habitat. The term includes, but is not limited to, structures,
treatment projects, and the use of mechanical devices or landscape
modifications achieved through mechanical means.
Landscape means a network of contiguous or adjacent ecosystems
characterized by a set of common management concerns or conditions. The
landscape is not defined by the size of the area, but rather by the
interacting elements that are relevant and meaningful in a management
context. Areas described in terms of aquatic conditions, such as
watersheds or ecoregions, may also be ``landscapes.''
Mitigation means:
(1) Avoiding the impacts of a proposed action by not taking a
certain action or parts of an action;
(2) Minimizing impacts by limiting the degree or magnitude of the
action and its implementation;
(3) Rectifying the impact of the action by repairing,
rehabilitating, or restoring the affected environment;
(4) Reducing or eliminating the impact over time by preservation
and maintenance operations during the life of the action; and
(5) Compensating for the impact of the action by replacing or
providing substitute resources or environments. In practice, the
mitigation sequence is often summarized as avoid, minimize, and
compensate. The BLM generally applies mitigation hierarchically: first
avoid, then minimize, and then compensate for any residual impacts from
proposed actions.
Mitigation strategies means documents that identify, evaluate, and
communicate potential mitigation needs and mitigation measures in a
geographic area, at relevant scales, in advance of anticipated public
land uses.
Monitoring means the periodic observation and orderly collection of
data to evaluate:
(1) Existing conditions;
(2) The effects of management actions; or
(3) The effectiveness of actions taken to meet management
objectives.
Permittee means any person that has a valid permit, right-of-way
grant, lease, or other land use authorization from the BLM.
Protection is the act or process of conservation by preserving the
existence of resources while keeping resources safe from degradation,
damage, or destruction.
Public lands means any lands or interests in lands owned by the
United States and administered by the Secretary of the Interior through
the BLM without regard to how the United States acquired ownership.
Reclamation means, when used in relation to individual project
goals and objectives, practices intended to achieve an outcome that
reflects the final goal to restore the character and productivity of
the land and water. Components of reclamation include, as applicable:
(1) Isolating, controlling, or removing of toxic or deleterious
substances;
[[Page 19599]]
(2) Regrading and reshaping to conform with adjacent landforms,
facilitate revegetation, control drainage, and minimize erosion;
(3) Rehabilitating fisheries or wildlife habitat;
(4) Placing growth medium and establishing self-sustaining
revegetation;
(5) Removing or stabilizing buildings, structures, or other support
facilities;
(6) Plugging drill holes and closing underground workings; and
(7) Providing for post-activity monitoring, maintenance, or
treatment.
Resilient ecosystems means ecosystems that have the capacity to
maintain and regain their fundamental structure, processes, and
function when altered by environmental stressors such as drought,
wildfire, nonnative invasive species, insects, and other disturbances.
Restoration means the process or act of conservation by assisting
the recovery of an ecosystem that has been degraded, damaged, or
destroyed.
Sustained yield means the achievement and maintenance in perpetuity
of a high-level annual or regular periodic output of the various
renewable resources of BLM-managed lands without permanent impairment
of the productivity of the land. Preventing permanent impairment means
that renewable resources are not depleted, and that desired future
conditions are met for future generations. Ecosystem resilience is
essential to BLM's ability to manage for sustained yield.
Unnecessary or Undue degradation means harm to land resources or
values that is not needed to accomplish a use's goals or is excessive
or disproportionate.
Sec. 6101.5 Principles for ecosystem resilience.
Except where otherwise provided by law, public lands must be
managed under the principles of multiple use and sustained yield.
(a) To ensure multiple use and sustained yield, the BLM's
management must conserve the quality of scientific, scenic, historical,
ecological, environmental, air and atmospheric, water resource, and
archaeological values; preserve and protect certain public lands in
their natural condition (including ecological and environmental
values); maintain the productivity of renewable natural resources in
perpetuity; and consider the long-term needs of future generations,
without permanent impairment of the productivity of the land.
(b) The BLM must conserve renewable natural resources at a level
that maintains or improves future resource availability and ecosystem
resilience.
(c) Authorized officers must implement the foregoing principles
through:
(1) Conservation as a land use within the multiple use framework,
including in decisionmaking, authorization, and planning processes;
(2) Protection and maintenance of the fundamentals of land health
and ecosystem resilience;
(3) Restoration and protection of public lands to support ecosystem
resilience;
(4) Use of the full mitigation hierarchy to address impacts to
species, habitats, and ecosystems from land use authorizations; and
(5) Prevention of unnecessary or undue degradation.
Subpart 6102--Conservation Use to Achieve Ecosystem Resilience
Sec. 6102.1 Protection of intact landscapes.
(a) The BLM must manage certain landscapes to protect their
intactness. This requires:
(1) Maintaining intact ecosystems through conservation actions.
(2) Managing lands strategically for compatible uses while
conserving intact landscapes, especially where development or
fragmentation is likely to occur that will permanently impair ecosystem
resilience on public lands.
(3) Maintaining or restoring resilient ecosystems through habitat
and ecosystem restoration projects that are implemented over broader
spatial and longer temporal scales. (4) Coordinating and implementing
actions across BLM programs, offices, and partners to protect intact
landscapes.
(5) Pursuing management actions that maintain or mimic
characteristic disturbance.
(b) Authorized officers will seek to prioritize actions that
conserve and protect intact landscapes in accordance with Sec. 6101.2.
Sec. 6102.2 Management to protect intact landscapes.
(a) When revising a Resource Management Plan under part 1600 of
this chapter, authorized officers must use available data, including
watershed condition classifications, to identify intact landscapes on
public lands that will be protected from activities that would
permanently or significantly disrupt, impair, or degrade the structure
or functionality of intact landscapes.
(b) During the planning process, authorized officers must determine
which, if any, tracts of public land will be put to conservation use.
In making such determinations, authorized officers must consider
whether:
(1) The BLM can establish partnerships to work across Federal and
non-Federal lands to protect intact landscapes;
(2) Multiple lines of evidence indicate that active management will
improve the resilience of the landscape through reducing the likelihood
of uncharacteristic disturbance;
(3) The BLM can work with communities to identify geographic areas
important for their strategic growth and development in order to allow
for better identification of the most suitable areas to protect intact
landscapes;
(4) The BLM can identify opportunities for co-stewardship with
Tribes;
(5) Conservation leases (see Sec. 6102.4) can be issued to manage
and monitor areas within intact landscapes with high conservation value
and complex, long-term management needs; and
(6) Standardized quantitative monitoring and best available
information is used to track the success of ecological protection
activities (see Sec. 6103.3).
(c) When determining whether to acquire lands or interests in lands
through purchase, donation, or exchange, authorized officers must
prioritize the acquisition of lands or interests in lands that would
further protect and connect intact landscapes and functioning
ecosystems.
(d) Authorized officers must collect and track disturbance data
that indicate the cumulative disturbance and direct loss of ecosystems
at a watershed scale resulting from BLM-authorized activities. This
information must be included in a national tracking system. The BLM
must use the national tracking system to strategically minimize surface
disturbance, including identifying areas appropriate for conservation
and other uses in the context of threats identified in watershed
condition assessments, to analyze landscape intactness and
fragmentation of ecosystems, and to inform conservation actions.
Sec. 6102.3 Restoration.
(a) The BLM must emphasize restoration across the public lands to
enable achievement of its multiple use and sustained yield mandate.
(b) In determining the restoration actions required to achieve
recovery of ecosystems and promote resilience, the BLM must consider
the degree of ecosystem degradation and develop restoration goals and
objectives designed to achieve ecosystem resilience and land health
standards (see Sec. 6103.1-1).
[[Page 19600]]
(c) The BLM should employ active management to promote restoration.
Over the long-term, restoration actions must be durable, self-
sustaining, and expected to persist based on the resource objective.
Sec. 6102.3-1 Restoration prioritization.
(a) Not less than every five years, authorized officers must
identify priority landscapes for restoration. In doing so, authorized
officers must consider:
(1) Results from land health assessments, watershed condition
classifications and other best available information (see subpart 6103
of this part);
(2) The likelihood of success of restoration activities to achieve
resource or conservation objectives;
(3) The possibility of implementing a series of coordinated
restoration actions benefiting multiple resources at scales
commensurate to the cause of the degradation in areas where the BLM
manages sufficient lands or partnerships exist to work across
jurisdictions;
(4) Where restoration actions will have the greatest social,
economic, and environmental justice impacts for local communities; and
(5) Where restoration can concurrently or proactively prevent
unnecessary or undue degradation, such as ecosystem conversion,
fragmentation, habitat loss, or other negative outcomes that
permanently impair ecosystem resilience.
Sec. 6102.3-2 Restoration planning.
(a) Authorized officers must include a restoration plan in any
Resource Management Plan adopted or revised in accordance with part
1600 of this chapter. Each restoration plan must include goals,
objectives, and management actions that require:
(1) Measurable progress toward attainment of land health standards;
(2) Clear outcomes and monitoring to describe progress and enable
adaptive management (see subpart 6103).
(3) Coordination and implementation of actions across BLM programs
and with partners to develop landscape restoration objectives.
(4) Attainment of statewide and regional needs as identified in the
assessment of priority landscapes for restoration and consistent with
Resource Management Plan goals.
(5) Restoration of landscapes that land health assessments,
watershed condition classifications and other best available
information suggest should be prioritized for restoration.
(b) Authorized officers must design and implement restoration
actions to achieve the goals and objectives adopted under paragraph (a)
of this section. In doing so, authorized officers must:
(1) Ensure that actions are designed, implemented, and monitored at
appropriate spatial and temporal scales using suitable treatments and
tools to achieve desired outcomes.
(2) Ensure that restoration management actions address causes of
degradation, focus on ecological process-based solutions, and where
possible maintain attributes and resource values associated with the
potential or capability of the ecosystem.
(3) Coordinate and implement actions across BLM programs and with
partners to develop holistic restoration actions.
(4) Issue conservation leases under Sec. 6102.4 for the purpose of
restoring, managing, and monitoring areas within priority landscapes.
(5) Ensure incorporation of locally appropriate best management
practices that address the following:
(i) A five-year schedule that describes activities prior to
planning (such as pretreatments and native-plant materials
procurement), implementation actions (including operation, maintenance,
and repair), monitoring (see Sec. 6103.2), and reporting;
(ii) Potential remedial and contingency measures that account for
drought and changed circumstances that could delay implementation; and
(iii) Opportunities for compensatory mitigation for important,
scarce, or sensitive resources or resources protected by law.
(c) Authorized officers must annually track restoration-project
progress toward achieving goals, projects that have achieved project
goals, and projects completed without meeting project goals. When
assessment and monitoring efforts reveal that restoration outcomes have
not been met, authorized officers must assess and track why restoration
outcomes are not being achieved and what, if any, additional resources
or changes to management are needed to achieve restoration goals.
(d) Authorized officers may authorize a restoration project or
approve compensatory mitigation as part of a broader land use
authorization only if the proposed restoration project or compensatory
mitigation will be consistent with the land health standards,
restoration goals and objectives, best management practices and
Resource Management Plan restoration plans described in paragraph (a)
of this section.
Sec. 6102.4 Conservation leasing.
(a) The BLM may authorize conservation use on the public lands by
issuing conservation leases on such terms and conditions as the
authorized officer determines are appropriate for the purpose of
ensuring ecosystem resilience through protecting, managing, or
restoring natural environments, cultural or historic resources, and
ecological communities, including species and their habitats.
(1) Conservation leases on the public lands may be authorized for
the following activities:
(i) Conservation use that involves restoration or land enhancement;
and
(ii) Conservation use that involves mitigation.
(2) Authorized officers may issue conservation leases to any
qualified individual, business, non-governmental organization, or
Tribal government.
(3) Conservation leases shall be issued for a term consistent with
the time required to achieve their objective.
(i) A conservation lease issued for purposes of restoration or
protection may be issued for a maximum term of 10 years and shall be
reviewed mid-term for consistency with the lease provisions.
(ii) A conservation lease issued for purposes of mitigation shall
be issued for a term commensurate with the impact it is mitigating and
reviewed every 5 years for consistency with the lease provisions.
(iii) Authorized officers shall extend or further extend a
conservation lease if necessary to serve the purpose for which the
lease was first issued. Such extension or further extension can be for
a period no longer than the original term of the lease.
(4) Subject to valid existing rights and applicable law, once the
BLM has issued a conservation lease, the BLM shall not authorize any
other uses of the leased lands that are inconsistent with the
authorized conservation use.
(5) No land use authorization is required under the regulations in
this part for casual use of the public lands covered by a conservation
lease.
(b) The process for issuing a conservation lease is as follows:
(1) An application for a conservation lease must be filed with the
Bureau of Land Management office having jurisdiction over the public
lands covered by the application. The filing of an application gives
the applicant no right to use the public lands.
(2) If the lease application is approved, the authorized officer
will issue an approved conservation lease on a form approved by the
Office of the Director, Bureau of Land Management.
(c) An application for a conservation lease must include:
[[Page 19601]]
(1) A description of the proposed conservation use in sufficient
detail to enable authorized officers to evaluate the feasibility of the
proposed conservation use; the impacts, if any, on the environment; the
public or other benefits from the conservation use; the approximate
cost of the proposed conservation use; any threat to public health and
safety posed by the proposed use; and how, in the opinion of the
applicant, the proposed use conforms to the Bureau of Land Management's
plans, programs, and policies for the public lands covered by the
proposed use. The description shall include but not be limited to:
(i) Details of the proposed uses and activities;
(ii) A description of all facilities for which authorization is
sought, including access needs and special types of leases that may be
needed;
(iii) A map of sufficient scale to allow the required information
to be legible as well as a legal description of primary and alternative
project locations;
(iv) A schedule for restoration or land enhancement activities if
applicable; and
(v) The following additional information, upon request of
authorized officers:
(A) Additional studies or environmental data, if such studies or
data are necessary for the BLM to decide whether to issue, issue with
modification, or deny the proposed conservation lease.
(B) Documentation of or proof of application for additional
private, State, local or other Federal agency licenses, permits,
easements, certificates, or other approvals.
(C) Evidence that the applicant has, or prior to commencement of
conservation activities will have, the technical and financial
capability to operate, maintain, and terminate the authorized
conservation use.
(2) The application shall include the name and legal mailing
address of the applicant, as well as a statement of the applicant's
interest in the resource or purpose of the lease.
(3) If the applicant is other than an individual, the application
shall include the name and address of an agent authorized to receive
notice of actions pertaining to the application.
(4) If any of the information required in this section has already
been submitted as part of a separate conservation use proposal, the
application need only refer to that proposal by filing date, office,
and case number. The applicant shall certify that there have been no
changes in any of the information.
(d) Approval of the application is not guaranteed and is solely at
the discretion of the authorized officer.
(e) A conservation lease may only be assigned or transferred with
the written approval of the authorized officer, and no assignment or
transfer shall be effective until the BLM has approved it in writing.
Authorized officers may authorize assignment or transfer of a
conservation lease in their discretion if no additional rights will be
conveyed beyond those granted by the original authorization, the
proposed assignee or transferee is qualified to hold the lease, and the
assignment or transfer is in the public interest.
(f) Administrative cost recovery, rents and fees for conservation
leases will be governed by the provisions of Sec. Sec. 2920.6 and
2920.8.
Sec. 6102.4-1 Termination and suspension of conservation leases.
(a) If a conservation lease provides by its terms that it shall
terminate on the occurrence of a fixed or agreed-upon event, the
conservation lease shall automatically terminate by operation of law
upon the occurrence of such event.
(b) A conservation lease may be terminated by mutual written
agreement between the authorized officer and the lessee to terminate
the lease.
(c) Authorized officers have discretion to suspend or terminate
conservation leases under the following circumstances:
(1) Improper issuance of the lease;
(2) Noncompliance by the holder with applicable law, regulations,
or terms and conditions of the conservation lease;
(3) Failure of the holder to use the conservation lease for the
purpose for which it was authorized; or
(4) Impossibility of fulfilling the purposes of the lease.
(d) Upon determination that the holder has failed to comply with
any terms or conditions of a conservation lease and that such
noncompliance adversely affects or poses a threat to land or public
health or safety or impacts to ecosystem resilience, authorized
officers shall issue an immediate temporary suspension.
(1) Authorized officers may issue an immediate temporary suspension
order orally or in writing at the site of the activity to the holder or
a contractor or subcontractor of the holder, or to any representative,
agent, employee or contractor of any of them, and the suspended
activity shall cease at that time. As soon as practicable, authorized
officers shall confirm the order by a written notice to the holder
addressed to the holder or the holder's designated agent. Authorized
officers may also take such action considered necessary to address the
adverse effects or threat to land or public health or safety or impacts
to ecosystem resilience.
(2) Authorized officers may order immediate temporary suspension of
an activity regardless of any action that has been or is being taken by
another Federal or State agency.
(3) Any time after an order of temporary suspension has been
issued, the holder may file with authorized officers a request for
permission to resume. The request shall be in writing and shall contain
a statement of the facts supporting the request. Authorized officers
may grant the request upon determination that the adverse effects or
threat to land or public health or safety or impacts to ecosystem
resilience are resolved.
(4) Authorized officers may render an order either to grant or to
deny the request to resume within 5 working days of the date the
request is filed. If authorized officers do not render an order on the
request within 5 working days, the request shall be considered denied,
and the holder shall have the same right to appeal as if an order
denying the request had been issued.
(e) Process for termination or suspension other than temporary
immediate suspension.
(1) Prior to commencing any proceeding to suspend or terminate a
conservation lease, authorized officers shall give written notice to
the holder of the legal grounds for such action and shall give the
holder a reasonable time to address the legal basis the authorized
officer identifies for suspension or termination.
(2) After due notice of termination or suspension to the holder of
a conservation lease, if grounds for suspension or termination still
exist after a reasonable time, authorized officers shall give written
notice to the holder and refer the matter to the Office of Hearings and
Appeals for a hearing before an Administrative Law Judge pursuant to
part 4 of this chapter. The authorized officers shall suspend or revoke
the conservation lease if the Administrative Law Judge determines that
grounds for suspension or revocation exist and that such action is
justified.
(3) Authorized officers shall terminate a suspension order when
authorized officers determine that the grounds for such suspension no
longer exist.
(4) Upon termination of a conservation lease, the holder shall, for
60 days after the notice of termination, retain authorization to use
the associated public lands solely for the
[[Page 19602]]
purposes of reclaiming the site to its use conditions consistent with
achieving land health fundamentals, unless otherwise agreed upon in
writing or in the conservation lease terms. If the holder fails to
reclaim the site consistent with the requirements of these regulations
and the conservation lease terms within a reasonable period, all
authorization to use the associated public lands will terminate, but
that shall not relieve the holder of liability for the cost of
reclaiming the site.
Sec. 6102.4-2 Bonding for conservation leases.
(a) Bonding obligations. (1) Prior to the commencement of surface-
disturbing activities, the conservation lease holder shall submit a
surety or a personal bond conditioned upon compliance with all the
terms and conditions of the lease covered by the bond, as described in
this subpart. The bond amounts shall be sufficient to ensure
reclamation of the conservation lease area(s) and the restoration of
any lands or surface waters adversely affected by conservation lease
operations. Such restoration may be required after the abandonment or
cessation of operations by the conservation lease holder in accordance
with, but not limited to, the standards and requirements set forth by
authorized officers.
(2) Surety bonds shall be issued by qualified surety companies
certified by the Department of the Treasury.
(3) Personal bonds shall be accompanied by:
(i) Cashier's check;
(ii) Certified check; or
(iii) Negotiable Treasury securities of the United States of a
value equal to the amount specified in the bond. Negotiable Treasury
securities shall be accompanied by a proper conveyance to the Secretary
of full authority to sell such securities in case of default in the
performance of the terms and conditions of a conservation use
authorization.
(b) State-wide bonds. In lieu of bonds for each individual
conservation lease, holders may furnish a bond covering all
conservation leases and operations in any one State. Such a bond must
be at least $25,000 and must be sufficient to ensure reclamation of all
of the holder's conservation lease area(s) and the restoration of any
lands or surface waters adversely affected by conservation lease
operations in the State.
(c) Filing. All bonds shall be filed in the proper BLM office on a
current form approved by the Office of the Director. A single copy
executed by the principal or, in the case of surety bonds, by both the
principal and an acceptable surety is sufficient. Bonds shall be filed
in the Bureau State office having jurisdiction of the conservation use
easement covered by the bond.
(d) Default. (1) Where, upon a default, the surety makes a payment
to the United States of an obligation incurred under a conservation
lease, the face amount of the surety bond or personal bonds and the
surety's liability thereunder shall be reduced by the amount of such
payment.
(2) After default, where the obligation in default equals or is
less than the face amount of the bond(s), the principal shall either
post a new bond or restore the existing bond(s) to the amount
previously held or a larger amount as determined by authorized
officers. In lieu thereof, the principal may file separate or
substitute bonds for each conservation use covered by the deficient
bond(s). Where the obligation incurred exceeds the face amount of the
bond(s), the principal shall make full payment to the United States for
all obligations incurred that are in excess of the face amount of the
bond(s) and shall post a new bond in the amount previously held or such
larger amount as determined by authorized officers. The restoration of
a bond or posting of a new bond shall be made within 6 months or less
after receipt of notice from authorized officers.
(3) Failure to comply with these requirements may:
(i) Subject all leases covered by such bond(s) to termination under
the provisions of this title;
(ii) Prevent the bond obligor or principal from acquiring any
additional conservation lease or interest therein under this subpart;
and
(iii) Result in the bond obligor or principal being referred to the
Suspension and Debarment Program under 2 CFR part 1400 to determine if
the entity will be suspended or debarred from doing business with the
Federal Government.
Sec. 6102.5 Management actions for ecosystem resilience.
(a) Authorized officers must:
(1) Identify priority watersheds, landscapes, and ecosystems that
require protection and restoration efforts;
(2) Develop and implement strategies, including mitigation
strategies, and approaches that effectively manage public lands to
protect resilient ecosystems;
(3) Develop and implement monitoring and adaptive management
strategies for maintaining sustained yield of renewable resources,
accounting for changing landscapes, fragmentation, invasive species,
and other environmental disturbances (see Sec. 6103.2);
(4) Report annually on the results of land health assessments,
including in the land health section of the Public Land Statistics;
(5) Ensure consistency in watershed condition classifications both
among neighboring BLM state offices and with the fundamentals of land
health; and
(6) Store watershed condition classification data in a national
database to determine changes in watershed condition and record
measures of success based on conservation and restoration goals.
(b) In taking management actions, and as consistent with applicable
law, authorized officers must:
(1) Consistent with the management of the area, avoid authorizing
uses of the public lands that permanently impair ecosystem resilience;
(2) Promote opportunities to support conservation and other actions
that work towards achieving sustained yield;
(3) Issue decisions that promote the ability of ecosystems to
recover or the BLM's ability to restore function;
(4) Meaningfully consult with Indian Tribes and Alaska Native
Corporations during the decisionmaking process on actions that may have
a substantial direct effect on the Tribe or Corporation;
(5) Allow State, Tribal, and local agencies to serve as joint lead
agencies consistent with 40 CFR 1501.7(b) or as cooperating agencies
consistent with 40 CFR 1501.8(a) in the development of environmental
impact statements or environmental assessments;
(6) Respect include Indigenous Knowledge, including by:
(i) Encouraging Tribes to suggest ways in which Indigenous
Knowledge can be used to inform the development of alternatives,
analysis of effects, and when necessary, identification of mitigation
measures; and
(ii) Communicating to Tribes in a timely manner and in an
appropriate format how their Indigenous Knowledge was included in
decisionmaking, including addressing management of sensitive
information;
(7) Develop and implement mitigation strategies that identify
compensatory mitigation opportunities and encourage siting of large,
market-based mitigation projects (e.g., mitigation or conservation
banks) on public lands where durability can be achieved;
(8) Consider a precautionary approach for resource use when the
impact on ecosystem resilience is unknown or cannot be quantified; and
[[Page 19603]]
(9) Provide a justification for decisions that may impair ecosystem
resilience.
(c) Authorized officers must use national, regional, and site-based
assessment, inventory, and monitoring data as available and
appropriate, along with other high-quality information, as multiple
lines of evidence to evaluate resource conditions and inform
decisionmaking, specifically by:
(1) Gathering high-quality available data relevant to the
management decision, including standardized quantitative monitoring
data and data about land health;
(2) Selecting relevant indicators for each applicable management
question (e.g., land health standards, restoration objectives, or
intactness);
(3) Establishing a framework for translating indicator values to
condition categories (such as quantitative-monitoring objectives or
science-based conceptual models); and
(4) Summarizing results and ensuring that a clear and
understandable rationale is documented, explaining how the data was
used to make the decision.
Sec. 6102.5-1 Mitigation.
(a) The BLM will generally apply the mitigation hierarchy to avoid,
minimize and compensate for, as appropriate, adverse impacts to
resources when authorizing uses of public lands. As appropriate in a
planning process, the authorized officer may identify specific
mitigation approaches for identified uses or impacts to resources.
(b) Authorized officers shall, to the maximum extent possible,
require mitigation to address adverse impacts to important, scarce, or
sensitive resources.
(c) For compensatory mitigation, the BLM may use a third-party
mitigation fund holder. Authorized officers may approve third-party
mitigation fund holders to establish mitigation accounts for use by
entities granted land use authorizations by the BLM, when such accounts
are an appropriate and efficient method for implementing mitigation
measures required through a BLM decision document. Approved mitigation
fund holders are allowed to collect and manage mitigation funds
collected from permittees and to expend the funds in accordance with
agency decision documents and permits.
(d) Authorized officers may establish mitigation accounts as
appropriate when multiple permittees have similar compensatory
mitigation requirements or a single permittee has project impacts that
require substantial compensatory mitigation that will be accomplished
over an extended period and involve multiple mitigation sites.
(e) Authorized officers may approve the use of a mitigation account
by a permittee only if a mitigation fund holder has a written agreement
with the BLM as described in paragraph (h) of this section.
(f) Authorized officers may approve a third party as a mitigation
fund holder if the party:
(1) Qualifies for tax-exempt status in accordance with Internal
Revenue Code (IRC) section 501(c)(3);
(2) Has a history of successfully holding and managing mitigation,
escrow, or similar corporate accounts;
(3) Is a public charity bureau for the state in which the
mitigation area is located, or otherwise complies with applicable state
laws;
(4) Is a third party organizationally separate from and having no
corporate or family connection to the entity accomplishing the
mitigation program or project, the project proponent, and the
permittee;
(5) Adheres to generally accepted accounting practices that are
promulgated by the Financial Account Standards Board, or any successor
entity; and
(6) Has the capability to hold, invest, and manage the mitigation
funds to the extent allowed by law and consistent with modern ``prudent
investor'' and endowment law, such as the Uniform Prudent Management of
Institutional Funds Act of 2006 (UPMIFA) or successor legislation when
funds are needed for long-term management and monitoring. UPMIFA
incorporates a general standard of prudent spending measured against
the purpose of the fund and invites consideration of a wide array of
other factors. For states that have not adopted UPMIFA, analogous state
legislation can be relied upon to achieve this purpose.
(g) The BLM may not approve a state or local government agency to
hold mitigation funds under paragraph (f) of this section unless the
government agency is able to demonstrate, to the satisfaction of the
BLM, that it is acting as a fiduciary for the benefit of the mitigation
project or site and can show that it has the authority and ability to:
(1) Collect the funds;
(2) Protect the account from being used for purposes other than the
management of the mitigation project or site;
(3) Disburse the funds to the entities conducting the mitigation
project or management of the mitigation site;
(4) Demonstrate that it is organizationally separate from and has
no corporate or family connection to the entity accomplishing the
mitigation program or project, the project proponent, and the
permittee; and
(5) Adhere to generally accepted accounting practices that are
promulgated by the Governmental Accounting Standards Board or any
successor entity.
(h) The BLM must execute an agreement with any approved mitigation
fund holder. All mitigation fund holder agreements must be recorded
with the BLM within 30 days of the agreement being fully executed. The
BLM office originating the mitigation fund holder agreement must ensure
that annual fiscal reports are accurate and complete.
Subpart 6103--Tools for Achieving Ecosystem Resilience
Sec. 6103.1 Fundamentals of land health.
(a) Standards and guidelines developed or revised by the BLM in a
land use plan must be consistent with the following fundamentals of
land health:
(1) Watersheds are in, or are making significant progress toward,
properly functioning physical condition, including their upland,
riparian-wetland, and aquatic components; soil and plant conditions
support infiltration, soil moisture storage, and the release of water
that are in balance with climate and landform and maintain or improve
water quality, water quantity, and timing and duration of flow.
(2) Ecological processes, including the hydrologic cycle, nutrient
cycle, and energy flow, are maintained, or there is significant
progress toward their attainment to support healthy biotic populations
and communities.
(3) Water quality complies with state water quality standards and
achieves, or is making significant progress toward achieving,
established BLM management objectives established in the land use plan
such as meeting wildlife needs.
(4) Habitats are, or are making significant progress toward being,
restored or maintained for Federal threatened and endangered species,
Federal Proposed and Candidate species, and other special status
species.
(b) Authorized officers must manage all lands and program areas to
achieve land health in accordance with the fundamentals of land health
and standards and guidelines, as provided in this subpart.
Sec. 6103.1-1 Land health standards and guidelines.
(a) To ensure ecosystem resilience, authorized officers must
implement
[[Page 19604]]
land health standards and guidelines that, at a minimum, conform to the
fundamentals of land health across all lands and program areas.
(1) Authorized officers must apply existing land health standards
and guidelines, including those previously established under subpart
4180 of this chapter, across all lands and program areas.
(2) Authorized officers must review land health standards and
guidelines during the land use planning process and develop new or
revise existing land health standards and guidelines as necessary for
all lands and program areas to ensure the standards and guidelines
serve as appropriate measures for the fundamentals of lands health.
(3) Authorized officers will periodically, but not less than every
5 years in conjunction with regular land use plan evaluations, review
land health standards and guidelines for all lands and program areas to
ensure they serve as appropriate measures for the fundamentals of land
health. If existing standards and guidelines are found to be
insufficient, authorized officers must evaluate whether to revise or
amend the applicable land use plans.
(b) Authorized officers must determine the priority and scale for
evaluating standards and guidelines based on resource concerns.
(c) Authorized officers must establish an appropriate set of goals,
objectives, and success indicators to ensure that each land health
standard can be measured against resource conditions. New and amended
standards:
(1) May include previously identified indicators if they are
applicable to the new or amended standard;
(2) Must incorporate appropriate quantitative indicators available
from standardized datasets;
(3) Must address changing environmental conditions and physical,
biological, and ecological functions not already covered by existing
standards; and
(4) May require consultation with relevant experts within and
outside the agency.
(d) The BLM may establish national indicators for all lands and
program areas taken from existing indicators and the development of new
indicators, as needed, in support of the implementation of the
fundamentals of land health.
(1) Authorized officers must periodically review authorized uses
for consistency with the fundamentals of land health for all lands and
program areas.
(2) Reserved.
Sec. 6103.1-2 Land health assessments, evaluations, and
determinations.
(a) Authorized officers must consider existing land health
assessments, evaluations, and determinations in the course of
decisionmaking processes regardless of program area. Authorized
officers may prepare new land health assessments, evaluations, and
determinations in connection with decisionmaking, and must do so if
required by other law or regulation.
(b) In the course of conducting land health assessments, authorized
officers must measure applicable indicators.
(c) In the course of conducting land health evaluations, authorized
officers must:
(1) Document whether land health standards are achieved through
land health assessments, documented observations, standardized
quantitative data, or other data acceptable to authorized officers as
described in Sec. 6103.2.
(2) Use multiple lines of evidence. Indicator values can be
compared to benchmark values to help evaluate land health standards.
Attainment or nonattainment of a benchmark for one indicator can be
considered as one line of evidence used in the assessment and
evaluation.
(d) If resource conditions are determined to not be meeting, or
making progress toward meeting, land health standards, authorized
officers must determine the causal factors responsible for
nonachievement.
(e) Authorized officers must make progress toward determining the
causal factors for nonachievement as soon as practicable but not later
than within a year of the land health assessment identifying the
nonachievement.
(1) Upon determining that existing management practices or levels
of use on public lands are significant factors in the nonachievement of
the standards and guidelines, authorized officers must take appropriate
action as soon as practicable.
(2) Taking appropriate action means implementing actions,
consistent with applicable law and the terms and conditions of existing
authorizations, that will result in significant progress toward
fulfillment of the standards and significant progress toward compliance
with the guidelines.
(3) Relevant practices and activities may include but are not
limited to the establishment of terms and conditions for permits,
leases, and other use authorizations and land enhancement activities.
(4) If authorized officers determine that existing management
practices or levels of use on public lands are not significant causal
factors in the nonachievement of the standards, other remediating
actions should be identified and implemented as soon as practicable to
address the identified causal factors.
(5) Authorized officers may authorize changes in management or
development of a restoration plan to meet other objectives.
Sec. 6103.2 Inventory, assessment, and monitoring.
(a) Watershed condition classifications must be completed as part
of all land use planning processes.
(b) The BLM will maintain an inventory of public lands. This
inventory must include both critical landscape components (e.g., land
types, streams, habitats) and core indicators that address land health
fundamentals. Authorized officers will use inventory, assessment, and
monitoring information, including standardized quantitative monitoring
data, remote sensing maps, and geospatial analyses, to inform
decisionmaking across program areas, including but not limited to:
(1) Authorization of permitted uses;
(2) Land use planning;
(3) Land health evaluation;
(4) Available watershed assessments;
(5) Restoration planning, including prioritization;
(6) Assessments of restoration effectiveness;
(7) Evaluation and protection of intactness;
(8) Mitigation planning; and
(9) Other decisionmaking processes.
(c) Authorized officers must inventory, assess, and monitor
activities employing the following principles:
(1) Structured implementation of monitoring activities through
interdisciplinary monitoring plans, which guide monitoring program
development, implementation, and data use for decision-makers;
(2) Standardized field measurements to allow data comparisons
through space and time in support of multiple management decisions;
(3) Appropriate sample designs to minimize bias and maximize
applicability of collected data;
(4) Data management and stewardship to ensure data quality,
accessibility, and use; and
(5) Integration with remote sensing products to optimize sampling
and calibrate continuous map products.
[FR Doc. 2023-06310 Filed 3-31-23; 8:45 am]
BILLING CODE 4331-27-P