[Federal Register Volume 89, Number 91 (Thursday, May 9, 2024)]
[Rules and Regulations]
[Pages 40308-40349]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-08821]
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Vol. 89
Thursday,
No. 91
May 9, 2024
Part VI
Department of the Interior
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Bureau of Land Management
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43 CFR Parts 1600 and 6100
Conservation and Landscape Health; Final Rule
Federal Register / Vol. 89, No. 91 / Thursday, May 9, 2024 / Rules
and Regulations
[[Page 40308]]
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DEPARTMENT OF THE INTERIOR
Bureau of Land Management
43 CFR Parts 1600 and 6100
[BLM_HQ_FRN_MO450017935]
RIN 1004-AE92
Conservation and Landscape Health
AGENCY: Bureau of Land Management, Interior.
ACTION: Final rule.
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SUMMARY: The Bureau of Land Management (BLM) promulgates this final
rule, pursuant to the Federal Land Policy and Management Act of 1976
(FLPMA), as amended, and other relevant authorities, to advance the
BLM's multiple use and sustained yield mission by prioritizing the
health and resilience of ecosystems across public lands. To support
ecosystem health and resilience, the rule provides that the BLM will
protect intact landscapes, restore degraded habitat, and make informed
management decisions based on science and data. To support these
activities, the rule applies land health standards to all BLM-managed
public lands and uses, codifies conservation tools to be used within
FLPMA's multiple-use framework, and revises existing regulations to
better meet FLPMA's requirement that the BLM prioritize designating and
protecting areas of critical environmental concern (ACECs). The rule
also provides an overarching framework for multiple BLM programs to
facilitate ecosystem resilience on public lands.
DATES: The final rule is effective on June 10, 2024.
FOR FURTHER INFORMATION CONTACT: Patricia Johnston, Project Manager for
the Conservation and Landscape Health Rule, at 541-600-9693, for
information relating to the substance of the final rule. 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. Background
III. Section-by-Section Discussion of the Final Rule and Revisions
From the Proposed Rule
IV. Response to Public Comments
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 ability of the ecosystems to withstand
disturbance. Ecosystems that collapse due to disturbance cannot deliver
ecosystem services, such as clean air and water, food and fiber,
wildlife habitat, natural carbon storage, and more. Establishing and
safeguarding resilient ecosystems has become imperative as the public
lands experience adverse impacts from climate change and as the BLM
works to ensure public lands and ecosystem services benefit human
communities. The Conservation and Landscape Health Rule establishes the
policy for the BLM to build and maintain the resilience of ecosystems
on public lands in three primary ways: (1) protecting the most intact,
functioning landscapes; \1\ (2) restoring degraded habitat and
ecosystems; and (3) using science and data as the foundation for
management decisions across all plans and programs.
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\1\ This rule defines ``intact landscape'' to mean ``a
relatively unfragmented landscape free of local conditions that
could permanently or significantly disrupt, impair, or degrade the
landscape's composition, structure, or function. Intact landscapes
are large enough to maintain native biological diversity, including
viable populations of wide-ranging species. Intact landscapes
provide critical ecosystem services and are resilient to disturbance
and environmental change and thus may be prioritized for
conservation action. For example, an intact landscape would have
minimal fragmentation from roads, fences, and dams; low densities of
agricultural, urban, and industrial development; and minimal
pollution levels.''
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The rule establishes a definition of ``conservation'' that
encompasses both protection and restoration actions,\2\ recognizing
that the BLM must protect intact natural landscapes and restore
degraded landscapes to achieve ecosystem resilience. To support efforts
to protect and restore public lands, the rule clarifies that
conservation is a use on par with other uses of the public lands under
FLPMA's multiple-use and sustained-yield mandate. Recognizing that
public land conservation is incompatible with a ``one size fits all''
approach, the rule identifies multiple conservation tools to be used
where appropriate, including protection of intact landscapes,
restoration and mitigation planning, and ACEC designation. Consistent
with how the BLM promotes and administers other uses, the rule
establishes a durable mechanism--mitigation and restoration leasing--to
facilitate both mitigation and restoration on the public lands, while
providing opportunities to engage the public in the management of
public lands for this purpose. Achieving ecosystem resilience will
require, to some extent, the protection of intact landscapes. The goal
of the rule is to provide a decision support and prioritization
framework for the BLM as it seeks to identify where such protection is
appropriate. The rule does not prioritize conservation above other
uses; instead, it provides for considering and, where appropriate,
implementing or authorizing conservation as one of the many uses
managed under FLPMA, consistent with the statute's plain language.
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\2\ In this rule, conservation is a use; protection and
restoration are tools to achieve conservation. Protection is not
synonymous with preservation; rather, it allows for active
management or other uses consistent with multiple use and sustained
yield principles.
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The final rule also clarifies throughout that its provisions should
be implemented in a manner that supports land use planning decisions
and objectives that emphasize specific uses in specific areas. The
Desert Renewable Energy Conservation Plan, for example, identifies
Development Focus Areas and conservation areas, as well as conservation
and management actions to mitigate the effects of renewable energy
development. The 2015 Greater Sage-grouse Plans provide more
protections for the most valuable Priority Habitat Management Areas
while permitting more activities and related impacts in General Habitat
Management Areas. The West-wide Energy Corridors designated by the BLM
are identified as areas that are suitable for large transmission lines
or pipelines, subject to site-specific analysis of proposed projects
and required conditions to avoid or minimize adverse impacts. This
preamble and the rule text raise as an example throughout areas that
are managed for recreation or degraded lands prioritized for
development. The use of this example is not meant to imply that the
Bureau permits development only on degraded land.
This final rule does not alter the manner in which the BLM makes or
implements these types of land use planning decisions and recognizes
how managing for ecosystem resilience across a landscape can
incorporate conservation and development, as well as other uses. This
recognition is reflected in the rule's approach to identifying and
managing areas for landscape intactness, prioritizing areas for
restoration, and evaluating land health to inform decision-making.
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The BLM's efforts to protect and restore landscapes and ecosystems
and make informed planning, permitting, and program decisions rest on
the agency's ability to assess land health conditions and consider
those conditions when making decisions. The rule therefore modifies
existing BLM practice by applying the fundamentals of land health and
related standards and guidelines to all BLM-managed public lands and
uses, not just grazing (see Sec. 6103.1(a)). This broad application
includes uses, such as oil and gas development and renewable energy
generation, that are likely to result in at least local impacts to land
health. This rule requires the BLM to take ``appropriate action'' where
a specific land use is a factor in failing to achieve land health, but
what constitutes ``appropriate action'' may be constrained in a given
case both by law and the applicable resource management plan (RMP). For
example, where lands are available for solar development under the RMP,
options for taking ``appropriate action'' to address land health would
not include prohibiting solar development, but may include measures to
avoid, minimize, or compensate for impacts from solar development. In
general, assessments of land health are intended to inform how uses are
managed, rather than if they occur, by providing accurate data on
current conditions. In implementing the fundamentals of land health,
the 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 rule reiterates the importance of meaningful consultation
during decision-making processes with Tribes and Alaska Native
Corporations on issues that affect their interests, as determined by
the Tribes. It requires the BLM to respect and incorporate Indigenous
Knowledge into management decisions for ecosystem resilience and
directs the BLM to seek opportunities for Tribal co-stewardship of
intact landscapes and other lands and ecosystems, consistent with
agency and departmental guidance.
Finally, the rule amends the existing ACEC regulations to better
assist the BLM in carrying out FLPMA's requirement to give priority to
the designation and protection of ACECs. The regulatory changes
elaborate on the role of ACECs as the principal administrative
designation for protecting important natural, cultural, and scenic
resources, and they establish a more comprehensive framework for the
BLM to identify, evaluate, and consider special management attention
for ACECs in land use planning. The rule emphasizes the role of ACECs
in contributing to ecosystem resilience by clarifying that ACEC
designation can be used to protect landscape intactness and habitat
connectivity.
II. Background
A. The Need for Resilient Public Lands To Achieve Multiple Use and
Sustained Yield
The BLM manages approximately 245 million acres of public lands,
roughly one-tenth of the land area of the United States. These lands
have become increasingly degraded in recent decades through the
appearance of invasive species, extreme wildfire events, prolonged
drought, and increased habitat fragmentation.\3\ Degradation of the
health of public lands threatens the BLM's ability to manage public
lands as directed by FLPMA.
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\3\ See, e.g., Long-Term Trends in Vegetation on Bureau of Land
Management Rangelands in the Western United States (https://www.sciencedirect.com/science/article/pii/S1550742422001075);
Greater Sage-grouse Plan Implementation: Range-wide Monitoring
Report 2015-2020 (https://eplanning.blm.gov/public_projects/2016719/200502020/20050224/250056407/Greater%20Sage-Grouse%20Five-year%20Monitoring%20Report%202020.pdf).
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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, in accordance with the
land use plans developed by [the Secretary] under section 202 of this
Act when they are available'' (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 term ``multiple use'' means ``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; 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 directs the BLM to ``take any action necessary to
prevent unnecessary or undue degradation of the lands.'' (43 U.S.C.
1732(b)). Additionally, section 102(a)(8) of FLPMA declares that it is
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)). Many of these resources and values that
FLPMA authorizes the BLM to safeguard emanate from functioning and
productive native ecosystems that supply food, water, habitat, and
other ecological necessities.
Taken together, FLPMA's mandate to manage public lands for multiple
use and sustained yield and its requirement to protect certain
resources and values requires balanced management that maintains the
availability of such resources and values for future generations. (See
43 U.S.C. 1702(c)) Widespread degradation of land health significantly
limits the ability of public lands and their ecosystems to provide such
resources and values and is inconsistent with the management direction
and responsibility conferred to the BLM through FLPMA. The general
resilience of public lands will determine the BLM's ability to
effectively manage for multiple use and sustained yield over the long
term. Resilience is a critical ecosystem trait that allows ecosystems
to maintain or regain their composition, structure, and function
following disturbances, including those resulting from changing
environmental conditions. For example, maintaining habitat connectivity
allows organisms to adapt to a changing climate from the North Slope of
Alaska to the Rio Grande Valley of Colorado and New Mexico. To ensure
the resilience of public lands,
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FLPMA provides the BLM with ample authority and direction to conserve
ecosystems and other resources and values across the public lands.
The BLM recognizes this need for public lands to continue to
provide resources and values when declaring its mission ``to sustain
the health, diversity, and productivity of public lands for the use and
enjoyment of present and future generations.'' (blm.gov; see also 43
U.S.C. 1702(c)) Without ensuring that public lands and their component
ecosystems can maintain their function and be resilient to future
change, the agency risks failing on its statutory mandate and its
commitment to future generations.
To assist the BLM in carrying out its mission and statutory
mandate, this rule provides direction and tools to protect and restore
landscapes and ecosystems and make decisions supported by science and
data, assisting the agency in managing for resilient landscapes that
support multiple uses and sustained yield of resources and preventing
unnecessary or undue degradation of the lands and their resources. As
intact landscapes play a central role in maintaining the resilience of
an ecosystem, the rule emphasizes protecting those public lands with
intact, functioning landscapes and restoring others. This rule is
designed to support sustained yield such that the nation's public lands
can continue to supply food, water, habitat, and other ecological
necessities that can resist and recover from drought, wildfire, and
other disturbances, and continue to provide energy, forage, timber,
recreational opportunities, and safe and reliable access to minerals.
B. Conservation Use for Resilient Public Lands
Conservation is a key strategy for supporting resilient public
lands, now and into the future. Conservation takes many forms on public
lands, including in the ways grazing, recreation, forestry, wildlife
and fisheries management, and many other uses are carried out.
Conservation is both a land use and also an investment in the landscape
intended to increase the yield of certain other benefits elsewhere or
later in time. This rule focuses on conservation as a land use within
the multiple use framework, including in decision-making,
authorization, and planning processes. The rule develops the toolbox
for conservation use--defined here as encompassing both protection and
restoration actions--enabling some of the many conservation strategies
the agency employs to steward the public lands for multiple use and
sustained yield.
FLPMA has always encompassed conservation as a land use. As
described above, FLPMA authorizes and obligates the BLM to, within the
multiple use framework, protect natural resources, preserve public
lands, and provide habitat for fish and wildlife, among other
conservation measures. The BLM has been practicing conservation of the
public lands throughout the agency's history. The change this rule aims
to achieve is providing clear, consistent, and informed direction,
vetted and shaped by public input, for conservation use to be
implemented on the public lands in support of ecosystem resilience.
The rule does not prioritize conservation above other multiple
uses. It also does not preclude other uses where conservation use is
occurring. Many uses are compatible with different types of
conservation use, such as sustainable recreation, grazing, and habitat
management. The rule also does not enable conservation use to occur in
places where an existing, authorized, and incompatible use is
occurring.
One of the primary tools for conservation use that is established
in this rule is restoration and mitigation leasing (called conservation
leasing in the proposed rule). Restoration or mitigation leases can
help facilitate dynamic landscape management over time by allowing an
area to recover and be available for other uses after the termination
of the lease. For example, a restoration lessee may collaborate with an
existing grazing permittee to restore degraded rangeland with the
ultimate goal of resuming sustainable grazing. These leases are not the
only way to conduct restoration and mitigation on the public lands;
these types of conservation activities occur in many ways. The leases
provide a clear and consistent tool for those actions when appropriate
and useful. Like all conservation uses included in the rule,
restoration and mitigation leases will not be used where existing
rights and authorized uses are in place that would conflict with the
conservation use.
The BLM has, over the years, developed and revised regulations for
many multiple uses, whereas a placeholder has remained in Title 43 of
the CFR for the agency to develop regulations broadly pertaining to
conservation. With this rule, the BLM provides necessary regulations
for using conservation to support ecosystem resilience and landscape
health.
C. Management Decisions To Build Resilient Public Lands
The rule recognizes that the BLM has three primary ways of applying
conservation actions to manage for resilient public lands that inform
one another and potentially overlap: (1) protection of intact,
functioning landscapes; (2) restoration of degraded habitats and
ecosystems; and (3) making decisions informed by appropriate
conservation considerations identified through the development and
execution of plans, programs, and permits. The organization of the rule
text emanates from this structure, with principal sections on (1)
protection of landscape intactness and guidance on the identification
and designation of ACECs; (2) direction to plan for and restore
degraded habitats; and (3) instruction for management actions to
facilitate conservation, including application of mitigation, all based
on the use of high-quality information and adherence to land health
standards for all BLM programs.
1. Protection
As intact landscapes play a central role in maintaining the
resilience of ecosystems, the rule provides direction for the
protection of intact, functioning landscapes. The final rule directs
the BLM to maintain an inventory of landscape intactness as a resource
value and identify intact landscapes in land use plans and to protect
the intactness of certain landscapes by, for example, implementing
conservation actions that maintain ecosystem resilience and conserving
landscape intactness when managing compatible uses. Inventories of
landscape intactness focus on an estimate of naturalness measured
against human-caused disturbance and influence. The BLM intends to
assess intactness through use of watershed condition assessments
consistent with peer-reviewed methods developed jointly with the U.S.
Geological Survey.\4\ One of the principal administrative tools the BLM
has available to protect public land resources is the designation of
ACECs. ACECs are areas where special management attention is needed to
protect important historical, cultural, and scenic values or fish and
wildlife or other natural resources; ACECs can also be designated to
protect human life and safety from natural hazards. The rule clarifies
and expands existing ACEC regulations to better support the BLM in
carrying out FLPMA's direction to give
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priority to the designation and protection of these important areas.
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\4\ See, for instance, this collaborative effort between the BLM
and the USGS: A Multiscale Index of Landscape Intactness for the
Western U.S. [verbar] U.S. Geological Survey (usgs.gov).
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Pursuant to Executive Order 14072, Strengthening the Nation's
Forests, Communities, and Local Economies, 87 FR 24851 (Apr. 22, 2022),
and consistent with managing for multiple use and sustained yield and
other applicable law, the BLM is working to ensure that forests and
woodlands on public lands, including old and mature forests and
woodlands, are managed to: promote their continued health and
resilience, retain and enhance carbon storage, recruit old-growth
forests and characteristics, conserve biodiversity, mitigate the risk
of wildfires, enhance climate resilience, enable subsistence and
cultural uses, provide outdoor recreation opportunities, and promote
sustainable local economic development. Older forests and woodlands,
including pinyon and juniper woodlands, which are the BLM's most
abundant old forest type, have characteristics that contribute to
ecosystem resilience and further the objectives of this rule. The
characteristics include providing important wildlife habitat,
maintaining intact landscapes, contributing ecosystem services, and
harboring significant social and cultural values for human communities.
As such, these resources will be considered and evaluated for
protection and expansion under multiple provisions of the rule.
2. Restoration
To promote consistency in its application, the final rule
establishes principles for the design and implementation of BLM
restoration actions on public lands. To direct restoration efforts, the
rule also requires that resource management plans identify restoration
outcomes and that the BLM identify priority landscapes for restoration,
develop restoration plans, and track implementation of restoration
actions.
The rule offers new tools in the form of restoration leases and
mitigation leases that allow qualified entities to directly support
efforts to build and maintain resilient public lands. These leases will
be available to entities seeking to restore public lands or mitigate
reasonably foreseeable impacts from an authorized activity. Leases will
not override valid existing rights or preclude other, subsequent
authorizations so long as those authorizations are compatible with the
restoration or mitigation use. The rule establishes the process for
applying for and granting leases, terminating or suspending them,
determining noncompliance, and setting bonding obligations. The rule
expresses a preference for lease applications that are derived from
collaboration with existing permittees, lease holders, or adjacent land
managers or owners, or that include other specific factors enumerated
in 6102.4(d) that will make lease issuance more likely. Restoration and
mitigation leases will be issued for a term consistent with the time
required to achieve their objectives. Restoration leases will be issued
for a maximum of 10 years but can be renewed if necessary to serve the
purposes for which the lease was first issued. Once these purposes have
been achieved, the lease will not warrant renewal. Any mitigation lease
will require a term commensurate with the impact(s) it is offsetting.
Restoration and mitigation leases may also provide opportunities for
co-stewardship with federally recognized Tribes.
3. Management Actions for Decision-Making
The final rule delineates how its goals can be achieved when
implementing programs, establishing land use plans, and authorizing
use. In doing so, the rule requires the BLM to use high-quality
information, including Indigenous Knowledge. To ensure the BLM does not
limit its ability to build resilient public lands when authorizing use,
the rule requires the BLM to apply a mitigation hierarchy (i.e., take
actions to avoid, minimize, and compensate for certain residual
impacts, generally in that order). (See Sec. 6102.5.1(a)).\5\ For
important, scarce, or sensitive resources, the BLM must apply the
mitigation hierarchy with particular care, with the goal of
eliminating, reducing, and/or offsetting impact on the resource. The
rule also establishes regulations to govern the BLM's approval of a
third-party mitigation fund holder.
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\5\ The BLM's final rule adopts the definition of ``mitigation''
used by the Council on Environmental Quality's regulations
implementing the procedural requirements of NEPA, 40 CFR 1508.1(s),
including for compensatory mitigation: ``Compensating for the effect
by replacing or providing substitute resources or environments.''
Id. Sec. 1508.1(s)(5). This definition also aligns with existing
BLM policy, including its Mitigation Manual Section, MS-1794, and
its Mitigation Handbook, H-1794-1.
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The final rule highlights the importance of environmental justice
in decision-making, including advancing environmental justice through
restoration and mitigation actions as one of the rule's objectives. The
BLM is implementing Executive Order 14008 on Tackling the Climate
Crisis at Home and Abroad, 86 FR 7619 (Jan. 27, 2021) and Executive
Order 14096 on Revitalizing Our Nation's Commitment to Environmental
Justice for All, 88 FR 25251 (Apr. 26, 2023), which establish
environmental justice initiatives and policy goals.\6\ The BLM issued
guidance in September 2022 clarifying minimum requirements for
incorporating environmental justice considerations in environmental
reviews (Instruction Memorandum 2022-059, ``Environmental Justice
Implementation''). This rule builds on the agency's current commitments
and direction by highlighting opportunities to address impacts to
disadvantaged communities that are marginalized by underinvestment and
overburdened by pollution and to advance environmental justice. In
planning for and prioritizing landscapes for restoration, the rule
requires consideration of where restoration can address impacts on
communities' environmental justice concerns, as well as other social
and economic benefits. Environmental justice considerations are also
identified as a factor in evaluating proposals for restoration and
mitigation lease applications.
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\6\ These efforts build on prior Executive Orders, such as
Executive Order 12898 on Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations, 59 FR
7629 (Feb. 11, 1994).
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To support conservation actions and decision-making, the rule
extends the application of 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 lands
managed by the BLM and across all program areas. The fundamentals are
general descriptions of conditions that maintain the health and
functionality of watersheds, ecological processes, water quality, and
threatened, endangered, and special-status species habitat. The
standards measure the level of physical and biological conditions
required for healthy lands and sustainable uses of public lands,
essentially identifying trends toward achieving or not achieving
desired conditions. Assessment and evaluation of the standards informs
decision-making at all levels of the BLM, including decisions made in
resource management plans. However, it is the evaluation of multiple
lines of evidence to conclude whether or not each land health standard
is being achieved that is most relevant to a decision maker. Multiple
lines of evidence that may be used to evaluate land health include, but
are not limited to, standardized quantitative monitoring data, remote
sensing-derived maps and data, qualitative assessments, photos, water
quality data, habitat assessments, disturbance and land use
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history, and weather and climate data relevant to each land health
standard. Determining if a standard is being achieved, or not achieved,
can inform how a land use may be modified or adapted to improve land
health conditions consistent with the fundamentals. The rule does not
require, however, that individual actions ``comply'' with the
fundamentals of land health, nor does it require achievement of those
fundamentals (as measured by the land health standards) as a
precondition for any BLM decision.
Currently, the fundamentals of land health and related standards
apply only to rangeland systems where the BLM authorizes grazing.\7\
Existing land health standards vary across regions and states creating
a complex, but locally adapted system of rangeland evaluation. The rule
includes a process for developing and adopting consistent national land
health standards and amending or supplementing them to apply them more
effectively to habitats managed by the BLM other than rangelands (e.g.,
forests, deserts, shrublands, wetlands). Until the BLM has developed a
consistent set of national standards, existing standards and indicators
will be applied according to the process described within this rule.
However, broadening the applicability of existing land health standards
ensures the BLM will more formally and consistently consider the
condition of public lands in decision-making. The rule includes
instruction, largely consistent with the existing framework at 43 CFR
4180.1, on how the BLM must assess, evaluate, and determine if public
lands are meeting land health standards. At a critical moment in the
health and history of our public lands, the rule directs the BLM to
perform such assessments and evaluations at broad spatial and temporal
scales, thereby creating efficiencies in the land health process and
opportunities to streamline permit renewals and authorizations.
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\7\ The BLM currently maintains inventory, assessment and
monitoring data from its implementation of the grazing regulations
related to rangeland health through the agency's Assessment,
Inventory, and Monitoring (AIM) program, and makes this data
available to the public. https://www.blm.gov/aim.
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D. Tribal Engagement and Co-Stewardship
The final rule reflects the U.S. Government's special relationship
with Indian Tribes by incorporating updated requirements for
government-to-government consultation, provisions for respecting
Indigenous Knowledge, and direction to seek opportunities for Tribal
co-stewardship.
The BLM is committed to working with Tribes in the management of
the public lands, which are the ancestral homelands of many American
Indian and Alaska Native Tribes. The BLM is the country's largest land
manager, and it is vital that the BLM respect the nation-to-nation
relationship that exists with American Indian and Alaska Native Tribes
while incorporating co-stewardship where possible. Engaging with Tribes
through co-stewardship opportunities is a priority for the BLM as
identified in: Joint Secretarial Order 3403 on Fulfilling the Trust
Responsibility to Indian Tribes in the Stewardship of Federal Lands and
Waters (Nov. 15, 2021); BLM Permanent Instruction Memorandum No. 2022-
011, Co-Stewardship with Federally Recognized Indian and Alaska Native
Tribes Pursuant to Secretary's Order 3403 (Sept. 13, 2022); and the
Department of the Interior Departmental Manual Part 502, Collaborative
and Cooperative Stewardship with Tribes and the Native Hawaiian
Community.
In response to comments and consultation on the proposed rule,\8\
the BLM made several updates to the final rule to better embrace its
commitment to working with Tribes in managing the public lands for
ecosystem resilience and landscape health. A stated objective of the
final rule (43 CFR 6101.2(i)) is to: ``[i]mprove engagement and co-
stewardship of public lands with Tribal entities and promote the use of
Indigenous Knowledge in decision-making.'' The final rule intends to
achieve this objective through provisions for Tribal consultation,
incorporation of Indigenous Knowledge, and co-stewardship.
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\8\ Pueblo of Tesque Comments on Bureau of Land Management
Conservation and Landscape Health Rule (July 5, 2023), ; Pyramid
Lake Paiute Tribe, Public Comment Regarding the Proposed Public
Lands Rule (June 27, 2023), https://www.regulations.gov/comment/BLM-2023-0001-153233; Northwest Arctic Native Association (NANA)
Regional Corporation, Inc., Comments--Proposed Conservation and
Landscape Health Rule (July 5, 2023), https://www.regulations.gov/comment/BLM-2023-0001-154147; Colorado River Indian Tribes, Comments
on BLM Proposed Federal Land Policy and Management Act of 1979
(FLPMA) Regulations on Conservation and Landscape Health (June 20,
2023), https://www.regulations.gov/comment/BLM-2023-0001-120501; Ute
Indian Tribe of the Uintah and Ouray Reservation, Comments on the
Bureau of Land Management Proposed Rule on Conservation and
Landscape Health (June 27, 2023), https://www.regulations.gov/comment/BLM-2023-0001-147694.
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The final rule directs the BLM to meaningfully consult with Indian
Tribes and Alaska Native Corporations on actions that are determined,
after allowing for Tribal input, to potentially have a substantial
effect on the Tribe or Corporation. In taking management actions for
ecosystem resilience, and in recognition that Tribes can initiate
consultation upon request, the final rule requires the BLM to
meaningfully consult with Indian Tribes and Alaska Native Corporations
during the decision-making process. These changes promote consistency
with Departmental Manual guidance for consultation with Tribes.
The rule includes guidance for respecting and considering
Indigenous Knowledge and directs the BLM to identify opportunities for
co-stewardship as an overarching objective and specifically when
managing intact landscapes, planning restoration actions on public
lands, and taking management actions for ecosystem resilience.
The final rule also includes updated definitions for Indigenous
Knowledge and high-quality information to reflect current guidance and
to make clear that Indigenous Knowledge qualifies as high-quality
information when it is gained by prior informed consent, free of
coercion, and generally meets the standards for high-quality
information.
E. 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,'' (43 U.S.C. 1712(c)(3)), the rule updates regulatory
requirements found at 43 CFR 1610.7-2 and codifies policy instruction
found in the BLM Manual that guides its treatment of ACECs. (https://www.ntc.blm.gov/krc/system/files?file=legacy/uploads/5657/5_1613_ACEC_Manual%201988.pdf) The BLM inventories, evaluates, and
designates ACECs as part of the land use planning process. The land use
planning process guides BLM resource management decisions in a manner
that allows the BLM to respond to issues and consider trade-offs among
environmental, social, and economic values in determining appropriate
land uses for specific areas. 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 decision-making.
In 40 years of applying the procedures found at 43 CFR 1610.7-2 and
in the ACEC Manual, the BLM has identified a need for several revisions
that it has now made in this final rule. These revisions are needed to
provide clear direction and comprehensive guidance encompassing all
elements of the ACEC designation and management process.
[[Page 40313]]
Additionally, the final rule codifies the BLM's procedures for
considering and designating potential ACECs, providing more cohesive
direction and consistency than the previous procedures, which were
described partially in regulation and partially in agency policy. The
rule maintains the general process for inventorying, evaluating,
designating, and managing ACECs, but makes specific changes to clarify
and improve that process. The process is generally described here, with
more detailed explanation in the ``Section-by-Section Discussion of the
Final Rule and Revisions from the Proposed Rule'' and in the ``Response
to Public Comments'' sections of this preamble to the final rule.
In the initial stages of the land use 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 land use planning
alternatives 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.
This rule establishes procedures that require the BLM to consider
ecosystem resilience, landscape-level needs, and rapidly changing
landscape conditions in designating and managing ACECs, and it
establishes a management standard to ensure ACEC values are
appropriately conserved. The rule also provides that the BLM may, at
the agency's discretion, implement temporary management for potential
ACECs identified outside of an ongoing planning process until the
potential ACEC can be evaluated for designation through a land use
planning process. When implementing temporary management, the BLM will
comply with all applicable laws, including the National Environmental
Policy Act (NEPA), notify the public of the temporary management, and
periodically reevaluate its decision to provide for temporary
management. These provisions do not change the presumption that the BLM
generally addresses its management of areas that may be appropriate for
an ACEC designation through the land use planning process. The final
rule also codifies research natural areas as a type of ACEC designated
for the primary purpose of research and education on public lands,
consistent with existing regulations (43 CFR subpart 8223) and policy.
The BLM intends to revise its ACEC manual to integrate the new and
existing regulations into policy and provide more detailed guidance for
their implementation. Guidance will help the BLM and the public better
understand how the ACEC regulations are applied on a case-by-case
basis.
F. Statutory Authority
FLPMA establishes the BLM's mission to manage public 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 in 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)). Sustained yield is defined as, ``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)).
FLPMA also authorizes the Secretary to promulgate implementing
regulations necessary ``to carry out the purposes'' of the Act. (43
U.S.C. 1740) This rule, enacted under that authority, (1) defines and
regulates conservation use on the public lands in service of FLPMA's
multiple use and sustained yield mandates; (2) provides for third-party
authorizations to use the public lands for restoration and mitigation
under FLPMA section 302(b) (43 U.S.C. 1732(b)); and (3) revises the
existing regulations implementing FLPMA's direction in sections 201(a)
and 202(c)(3) (43 U.S.C. 1711(a) and 1712(c)(3)) that the BLM shall
give priority to the designation and protection of ACECs. (See also 43
U.S.C. 1701(a)(11) (``[I]t 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.'')).
This rule clarifies that conservation is a use on par with other
uses and responds to the direction inherent in FLPMA's multiple use and
sustained yield mandate to manage public lands for resilience and
future productivity and to mitigate resource impacts. A number of
comments questioned the BLM's authority to treat ``conservation'' as a
use within FLPMA's multiple use framework. As a general matter, the
definition of ``multiple use'' makes clear, and courts have affirmed,
that managing some lands for conservation use is a permissible, and
indeed crucial, aspect of managing public lands under the principles of
multiple use and sustained yield, as FLPMA requires. (See 43 U.S.C.
1702(c); see also New Mexico ex rel. Richardson v. BLM, 565 F.3d 683,
710 (10th Cir. 2009) (``It is past doubt that the principle of multiple
use does not require BLM to prioritize development over other uses . .
. BLM's obligation to manage for multiple use does not mean that
development must be allowed . . . Development is a possible use, which
BLM must weigh against other possible uses--including conservation to
protect environmental values.''); Theodore Roosevelt Conservation
P'ship v. Salazar, 616 F.3d 497, 518 (D.C. Cir. 2010) (``[T]he Bureau
has wide discretion to determine how those [FLPMA] principles [of
multiple use and sustained yield] should be applied.''); Or. Nat.
Desert Ass'n v. BLM, 531 F.3d 1114, 1134 (9th Cir. 2008) (recognizing
that the BLM's ``wide authority to manage the public lands under
principles of multiple use and sustained yield allows it ample
discretion for management of lands with wilderness values'')).
Public Comments on Statutory Authority
Several comments suggested more specifically that the decision in
Public Lands Council v. Babbitt, 167 F.3d 1287 (10th Cir. 1999), would
prohibit the restoration and mitigation leases available under this
rule.
We disagree. In that case, the Tenth Circuit held that the Taylor
Grazing Act and section 402 of FLPMA could not authorize ``issuing a
`grazing permit' that excludes livestock grazing for the entire term of
the permit.'' Id. at 1307.
[[Page 40314]]
The court, therefore, enjoined the regulations purporting to authorize
Taylor Grazing Act permits that provided for no grazing. In doing so,
the Tenth Circuit expressly stated that the question in the case was
``not whether the Secretary possesses general authority to take
conservation measures--which clearly he does.'' Id.
The present rule, in contrast to the grazing rule at issue in
Public Lands Council v. Babbitt, is an exercise of that authority to
take conservation measures. It does not rely on the Taylor Grazing Act,
nor does it modify the terms and conditions available for grazing
permits or authorize the BLM to issue grazing permits approving non-
grazing uses. Rather, this rule provides for a separate category of
leases, which can be exercised on public lands in areas with other
ongoing uses, such as active grazing, consistent with the BLM's
authority under FLPMA to ``manage the public lands under principles of
multiple use and sustained yield'' (43 U.S.C. 1732(a)) and to
``regulate, through easements, permits, leases, licenses, published
rules, or other instruments as the Secretary deems appropriate, the
use, occupancy, and development of the public lands.'' (43 U.S.C.
1732(b)) The final rule renames what the proposed rule called
``conservation leases'' as ``restoration leases'' and ``mitigation
leases'' to more precisely describe the activities that would be
authorized on the leased lands.
A number of comments that object to including ``conservation''
alongside other uses in FLPMA's multiple use framework, including a
letter from the Small Business Administration, Office of Advocacy
(Advocacy), point to the absence of the word ``conservation'' from
FLPMA's definition of ``principal or major uses.'' (See 43 U.S.C.
1702(l))
We disagree. Those comments misapprehend the meaning of the term
``principal or major uses'' within the statutory framework established
by FLPMA. That term does not appear in any of FLPMA's discussion of
multiple use, and the principal or major uses included in the
definition of that term do not hold an exclusive or even superior
position within the multiple use framework. Indeed, that defined term
appears in FLPMA only in section 202(e) (43 U.S.C. 1712(e)), which
provides that all land use plan decisions are subject to revision and
modification and--specific to principal or major uses--includes a
Congressional reporting provision (section 202(e)(2)) that contains no
substantive constraint on the BLM's authority. The Advocacy letter
asserts that restoration or mitigation leases must be submitted to
Congress, citing Section 202(e)(2). But section 202(e)(2) merely
provides for congressional notification if a management decision
``excludes (that is, totally eliminates)'' one or more of the principal
or major uses for two or more years on an area exceeding one hundred
thousand acres or more'' of the public lands. (43 U.S.C. 1712(e)(2))
The adoption of the final rule does not immediately result in any
restoration or mitigation lease going into effect, much less one that
covers one hundred thousand or more acres, let alone one that ``totally
eliminates'' a principal or major use on such an area for two or more
years. Nor does it follow from the rule that the leases the BLM does
issue would necessarily meet the criteria to trigger section 202(e)(2).
More importantly, the Advocacy letter fails to grapple with the
necessary and obvious implication of this provision: Congress's clear
recognition that the BLM is authorized to take actions that would
exclude principal or major uses--including from large tracts of land--
as long as it reports such actions to Congress when it does. In short,
the provision is not only inapplicable to most, if not all, restoration
and mitigation leases that may be issued under this rule, but it
clearly demonstrates that the BLM has the authority Advocacy claims it
lacks.
Several commenters suggested that the issuance of a final rule that
recognizes conservation as a use of the public lands and allows for the
issuance of restoration and mitigation leases might be challenged in
federal court under the Administrative Procedure Act, speculating
further that a reviewing court might evaluate these features of the
rulemaking under the major questions doctrine.
We disagree. The Supreme Court deemed the major questions doctrine
to apply when an agency's asserted statutory authority is unclear and
when the ``history and the breadth of the authority'' and the
``economic and political significance'' of its assertion provide a
``reason to hesitate.'' West Virginia v. EPA, 142 S. Ct. 2587, 2595
(2022). But as this preamble to this final rule explains elsewhere in
detail, and as courts have confirmed, FLPMA's animating principles of
multiple use and sustained yield embrace conservation use as an
integral component of the BLM's stewardship of the public lands.
Moreover, while restoration and mitigation leases are specific new
tools for managing the public lands, FLPMA provides clear and broad
authority to manage the public lands at the discretion of the
Secretary, including for conservation use, for the reasons described in
detail above, and including through leases. (43 U.S.C. 1732(a)-(b))
The BLM has a long history of exercising that broad regulatory
authority to manage its lands through leases and similar instruments,
including by issuing permits or right-of-way grants that authorize the
permit holder to implement restoration and mitigation as a component or
a condition of an authorization to use the public lands for development
or extractive purposes. See, e.g., M-37039, The Bureau of Land
Management's Authority to Address Impacts of its Land Use
Authorizations through Mitigation, at 11-22 (Dec. 21, 2016) (reinstated
by M-37075 (Apr. 15, 2022)) (``[The] BLM's charge under FLPMA to manage
public lands based on principles of multiple use and sustained yield
supports use of mitigation. The authority to evaluate and impose
mitigation arises out of the broad authority FLPMA vests in the BLM to
pursue congressional goals . . . for public lands. The BLM can evaluate
and require mitigation through both the land use planning process and
site-specific authorizations.''); Theodore Roosevelt Conservation
P'ship, 616 F.3d at 505-06, 515-17 (concerning planning decision that
outlined mitigation measures to be imposed as conditions of approval
for oil and gas drilling). For the reasons noted above, Congress has
spoken clearly that conservation--including in the forms of restoration
or mitigation--is an appropriate use of the public lands and that,
where a given use of the public lands is appropriate, leasing is an
appropriate means to regulate such use.
Several commenters noted that a different BLM rule--Resource
Management Planning, 81 FR 89580 (Dec. 12, 2016)--was subject to a
congressional joint resolution of disapproval under the Congressional
Review Act (CRA) (5 U.S.C. 802). These commenters suggested that this
rule, therefore, may be precluded by the CRA provision that ``a new
rule that is substantially the same as'' a rule that does not continue
in effect due to a joint resolution of disapproval may not be issued.
(5 U.S.C. 801(b)(2))
We disagree. This rule, which would promulgate a series of new
regulations at 43 CFR part 6100 and make changes to 43 CFR 1610.7-2, is
not substantially the same as the BLM's 2016 rule. The 2016 rule
included amendments to Sec. 1610.7-2, but they were different in
substance and form from the revisions proposed in this rule and
involved a much broader amendment to all of the
[[Page 40315]]
planning regulations at 43 CFR part 1600. For example, this rule
identifies ``landscape intactness'' as a value meriting consideration
for conservation, including through designation of ACECs, and calls for
land health evaluations at geographic scales broader than grazing
allotments. But these features of the present rule do not amount to the
same landscape-scale planning approach that was central to the 2016
rule, and which would have been (and would need to be) implemented
through a wholesale revision of the planning regulations at 43 CFR part
1600.
A number of comments noted that the BLM's management of the public
lands is subject to additional laws beyond FLPMA and in some cases
asked that the BLM limit the geographic scope of the final rule to
exclude areas of public lands where another statute provides direction
or informs how the BLM should manage those lands.
We agree that laws beyond FLPMA govern BLM's management of the
public lands, but we decline to amend the rule in response to these
comments. The final rule applies across BLM-managed lands. However,
implementation of the rule--that is, land use planning and individual
project-level decisions--will be subject to and must be undertaken
consistent with all applicable laws, including the Mining Law of 1872,
30 U.S.C. 22 et seq., the Oregon and California Revested Lands
Sustained Yield Management Act of 1937, 43 U.S.C. 2601 et seq. (the O&C
Act), the Alaska National Interest Lands Conservation Act, 16 U.S.C.
3101 et seq. (ANILCA), the Paleontological Resources Preservation Act
of 2009, 16 U.S.C. 470aaa et seq. (PRPA), the Endangered Species Act,
16 U.S.C. 1531 et seq. (ESA), the National Environmental Policy Act, 42
U.S.C. 4321 et seq. (NEPA), and the National Historic Preservation Act,
54 U.S.C. 300101 et seq. (NHPA).
G. Related Executive and Secretarial Direction
The rule is consistent with 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.
They include 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 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 rule advances these objectives by providing a framework
for conservation use on public lands that would apply to mature and
old-growth forests and woodlands managed by the BLM.
And Joint Secretarial Order 3403 on Fulfilling the Trust
Responsibility to Indian Tribes in the Stewardship of Federal Lands and
Waters, issued on November 15, 2021, by DOI and the Department of
Agriculture, 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.
H. Public Involvement in the Proposed Rule
The BLM published the proposed rule in the Federal Register on
April 3, 2023 (88 FR 19583), for a 75-day comment period ending on June
20, 2023. In response to public requests for an extension, on June 15,
2023, the BLM announced a 15-day extension of the comment period. The
official comment period extension notice was published on June 20, 2023
(88 FR 39818). The extended comment period closed on July 5, 2023.
During the comment period, the BLM hosted a variety of public
outreach activities. The BLM held two virtual public meetings on May 15
and June 5, 2023. The BLM held three in-person meetings in Denver,
Colorado (May 25, 2023); Albuquerque, New Mexico (May 30, 2023); and
Reno, Nevada (June 1, 2023) to provide an overview of the proposed rule
and answer questions from the public. All webinars and meetings were
led by a third-party facilitator. A video recording of the May 15
virtual meeting and presentation slides in English and Spanish are
available on the BLM website. The BLM also posted a reviewer guide and
fact sheet, frequently asked questions on topics of interest,
infographics, and other background information on the BLM website to
further public understanding of the proposed rule. (https://www.blm.gov/public-lands-rule.)
In addition, the BLM conducted external outreach and participated
in dozens of meetings to discuss the content of the proposed rule,
including congressional briefings; meetings with States and State
agencies; meetings with grazing, recreation, renewable energy, and
other stakeholder interest groups and associations; and presentations
at conferences and events. Meetings were conducted by both headquarters
staff and regional staff across the country.
I. Tribal Consultation on the Proposed Rule
At the beginning of the rulemaking process, letters were sent to
all federally recognized Tribes and Alaska Native Claims Settlement Act
Corporations informing them of the proposed rule and inviting them to
engage with the BLM to discuss their thoughts and concerns. The BLM
conducted government-to-government consultation on the proposed rule as
requested by Tribes.
To facilitate understanding of the proposed rule, the BLM posted
all meeting materials, including a recording of the first virtual
meeting, frequently asked questions, and meeting handouts, on its
website to accommodate Tribal members and other members of the public
who could not attend a public meeting. This final rule is informed by
input received from Tribes during the public comment period. Over 20
Tribal governments, Alaska Native Corporations, and tribal entities
submitted formal comments on the proposed rule. Tribal comments covered
a range of topics including ACEC nomination, tribal consultation and
co-stewardship, protection of cultural resources, and restoration and
mitigation leasing. Responses to Tribal input are addressed in the
``Tribal Engagement and Co-Stewardship'' and ``Section-by-Section
Discussion of the Final Rule and Revisions from the
[[Page 40316]]
Proposed Rule'' sections of this preamble to the final rule.
J. Summary of Changes
The BLM received an initial total of 216,403 comments from
regulations.gov. Further analysis showed that there were public comment
submissions with multiple cosigners, sometimes several thousand on one
submission, which were initially counted as separate submissions but
ultimately identified as a single submission with multiple signatures.
Therefore, although 216,403 people voiced their opinion, the final
count of comment letters came to 152,673. The comment letters on the
proposed rule are available for viewing on the Federal e-rulemaking
portal (https://www.regulations.gov) (search Docket ID: BLM-2023-0001).
The BLM has reviewed all public comments and made changes, as
appropriate, to the final rule based on those comments and internal
review. Those changes are described in detail in the ``Section-by-
Section Discussion of the Final Rule and Revisions from the Proposed
Rule'' of this preamble to the final rule. In addition, the ``Response
to Public Comments'' section in this preamble to the final rule
provides a summary of issues raised most frequently in public comments
and the BLM's response.
III. Section-by-Section Discussion of the Final Rule and Revisions From
the Proposed Rule
Note: This section of the preamble discusses newly promulgated
part 6100 first before turning to the revisions to Sec. 1610.7-2,
notwithstanding that Sec. 1610.7-2 appears first in the final rule
text. Part 6100 contains the core content of this final rule, which
frames the need for revision to Sec. 1610.7-2.
43 CFR Subchapter F--Preservation and Conservation
PART 6100--ECOSYSTEM RESILIENCE
Subpart 6101--General Information
Section 6101.1--Purpose
This section describes the overall purpose for the rule. The rule
is designed to facilitate healthy wildlife habitat, clean water, and
ecosystem resilience so that public lands can better 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 rule discusses the use
of protection and restoration actions, as well as tools such as land
health evaluations, inventory, assessment, and monitoring.
In response to public comments, the final rule expands the purpose
statement to include preventing permanent impairment or unnecessary or
undue degradation of public lands, in addition to promoting the use of
conservation to ensure ecosystem resilience.
Section 6101.2--Objectives
This section lists the specific objectives of the rulemaking. These
objectives were discussed at length earlier in the preamble for the
rule. In response to public comments, the BLM added four objectives to
the original six, which are to: provide for healthy lands and waters
that support sustainable outdoor recreation experiences for current and
future generations; prevent permanent impairment or unnecessary or
undue degradation of public lands; improve engagement and co-
stewardship of public lands with Tribal entities and promote the use of
Indigenous Knowledge in decision-making; and advance environmental
justice through restoration and mitigation actions.
Additionally, in response to public comments, the final rule
expands the objective that originally read ``Promote conservation by
maintaining, protecting, and restoring ecosystem resilience and intact
landscapes'' by specifically adding ``including habitat connectivity
and old-growth forests.''
Section 6101.3--Authority
A number of comments identified potential additional statutory
authority on which the BLM might rely in promulgating this rule. The
BLM has determined the reference to statutory authority is sufficient.
A number of comments raised questions about the relationship
between the rule and other laws, such as the Mining Law, the O&C Act,
and ANILCA, that apply to particular areas or particular uses of the
public lands. The final rule adds language in this section to clarify
that implementation of the rule is subject to other applicable laws.
Section 6101.4--Definitions
This section provides new definitions for concepts such as
conservation, ecosystem resilience, sustained yield, mitigation, and
unnecessary or undue degradation, along with other terms used
throughout the rule text. These definitions apply to the use of those
terms in part 6100, while definitions for the terms casual use,
conserve, ecosystem resilience, intactness, landscape, monitoring,
protect, and restore also apply to the use of those terms in Sec.
1610.7-2.
The final rule adopts, without revision, the proposed definitions
of the terms: casual use; important, scarce, and sensitive resources;
mitigation; mitigation strategies; monitoring; public lands; and
reclamation. The final rule revises the proposed definitions of the
terms: conservation, disturbance, effects, high-quality information,
Indigenous Knowledge, intact landscape, landscape, permittee,
protection, restoration, sustained yield, and unnecessary or undue
degradation (including by identifying the elements of undue degradation
and unnecessary degradation).
The final rule defines additional terms to provide further clarity
for implementing the rule: in-lieu fee program, intactness, land
health, mitigation bank, mitigation fund, significant causal factor,
significant progress, and watershed condition assessment. The final
rule removes the definitions of the terms best management practices and
land enhancement. The BLM decided to remove the definition of best
management practices, because it is not a term that is generally used
for describing mitigation measures. The BLM decided to remove the
definition of land enhancement based on public comments that found the
term confusing.
The proposed rule defined the term ``resilient ecosystems.'' The
final rule defines ``ecosystem resilience'' instead. The final rule
does not, as some comments suggested it should, formally define the
term ``permanent impairment,'' but the BLM intends that its meaning be
informed by how it is used within the rule's definition of sustained
yield.
The following paragraphs describe the definitions adopted in the
final rule and changes to these definitions from the proposed rule as
applicable.
The final rule defines the term ``casual use'' in order to clarify
that the existence of a restoration or mitigation lease would not in
and of itself preclude the public from accessing public lands for
noncommercial activities such as recreation. Authorized officers may
temporarily close public access for purposes authorized by restoration
and mitigation leases, such as habitat improvement projects. However,
in general, public lands leased for these purposes under the final rule
would continue to be open to public use. The BLM received public
comments recommending the definition be expanded to explicitly include
uses
[[Page 40317]]
such as recreation. However, the BLM decided to retain the definition
from the proposed rule because it exists in the same form in current
regulations at 43 CFR 2920.0-5(k). The final rule adds language to the
restoration and mitigation leasing section to clarify that leases will
not preclude access to or across leased areas for recreation use,
research use, or other compatible authorized uses, in addition to
casual use. The definition of ``casual use'' in this part does not
change the definition of casual use in 43 CFR 3809.5.
The final rule defines ``conservation'' in the context of these
regulations to mean the management of natural resources to promote
protection and restoration. The overarching purpose of the rule is to
help facilitate the use of conservation to support ecosystem
resilience, and in doing so the final rule clarifies conservation as a
use within the BLM's multiple use framework, including in decision-
making concerning land use planning and proposed projects. The final
rule includes a stated objective to promote conservation on public
lands, and subpart 6102 outlines principles, directives, management
actions, and tools--including a new tool in restoration and mitigation
leases--to meet this objective and fulfill the purpose of the rule. The
BLM received comments recommending the definition of ``conservation''
more closely align with other definitions and recommending that the BLM
distinguish between ``conservation'' and ``preservation.'' The
definition of ``conservation'' was updated in the final rule to make
clear that conservation is a use and that protection and restoration
are tools to achieve conservation.
The final rule defines 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 supporting ecosystem resilience
on public lands. The BLM received public comments recommending the BLM
clarify that disturbances can be natural or human-caused, suggesting
that defining disturbance as a discrete event was too restrictive, and
recommending that the BLM adjust the definition to more closely align
with how ``disturbance'' is used in environmental impact statements.
The definition of disturbance was updated in the final rule to clarify
that disturbance can be either discrete or chronic, characteristic
(where ecosystem or species have evolved to survive such a disturbance)
or uncharacteristic, and that disturbance can be natural or human-
caused.
The final rule defines the term ``ecosystem resilience'' (whereas
the proposed rule included a definition of ``resilient ecosystem'') in
the context of the rule's foundational precept that the BLM's
management of public lands on the basis of multiple use and sustained
yield relies on resilient ecosystems. The definition is broad and
mirrors Department guidance by including concepts of resistance,
recovery, and adaptation. The BLM received comments that suggested
removing this term, changing the definition to clarify that habitat
connectivity is key to a resilient ecosystem, and changing the
definition to better and more accurately describe the characteristics
of a resilient ecosystem. The BLM changed the term to ``ecosystem
resilience'' to match the usage of this term in the rule and defined
ecosystem resilience to be consistent with existing DOI definitions of
this term.\9\ DOI's definition of ecosystem resilience is inclusive of
three commonly used terms in scientific literature: resistance (i.e.,
withstand disturbance), recovery (i.e., recover from disturbance, and
adaptability (i.e., change/adapt to disturbance). The purpose of the
rule is to facilitate the use of conservation as part of sustained
yield, such that ecosystems on public lands can adapt to environmental
change, resist disturbance, and maintain or regain their function
following environmental stressors such as drought and wildfire.
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\9\ https://www.doi.gov/sites/default/files/department-of-interior-climate-action-plan-final-signed-508-9.14.21.pdf.
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The final rule defines the term ``effects'' as the direct,
indirect, and cumulative impacts from a public land use and clarifies
that the term should be viewed as synonymous with the term ``impacts''
for the purposes of the rule. The BLM received comments recommending
the definition be changed to match the definition of effects in the
BLM's planning regulations. The definition of effects was updated in
the final rule to reference 40 CFR 1508.1(g) and clarify that the use
of direct, indirect, and cumulative impacts in the rule is consistent
with the definition of those terms in 40 CFR 1508.1(g).
The final rule defines 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 definition
also clarifies 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 the Department's Information Quality Guidelines. https://www.doi.gov/ocio/policy-mgmt-support/information-quality-guidelines.
The BLM received public comments recommending that Indigenous Knowledge
be considered as high-quality information, recommending that the BLM
use the term ``credible data'' to describe high-quality information,
and that the definition be clarified to be more specific about what
qualifies as high-quality information. The definition of high-quality
information was updated in the final rule to reference the most current
Department guidance on scientific information and to specify when
Indigenous Knowledge would be considered high-quality information in
decision-making.
The final rule defines the terms ``important,'' ``scarce,'' and
``sensitive'' resources to provide clarity and consistency in the BLM's
implementation of mitigation requirements, including under the final
rule. The BLM received comments that the definition of these terms was
vague and requesting more detail to clarify when a resource would
qualify as important, scarce, or sensitive, as well as comments
requesting more clarity on how the BLM determines whether a resource is
important, scarce, or sensitive. The final rule does not change the
definition of these terms, which are consistent with the BLM's
mitigation policy and handbook. A determination that a resource is
important, scarce, or sensitive is dependent on location, conditions
within a planning area affecting a particular resource (e.g., drought),
and the adverse effects on that resource from other past and
foreseeable future land uses.
The final rule defines the term ``Indigenous Knowledge'' to reflect
the DOI'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 BLM received comments recommending changes to the
definition of this term to encompass proper terminology for Indigenous
Knowledge and make it consistent with existing Department regulations
and guidance, or to drop the term from the rule. The definition of
Indigenous Knowledge was updated in the final
[[Page 40318]]
rule to clarify that Tribes may use different terms to refer to this
concept and to bring the definition of Indigenous Knowledge in line
with current BLM, Department, and White House guidance.\10\ The final
rule adds a definition for the term ``in lieu fee program.'' This term
is used in Sec. 6102.5.1, Mitigation, to describe an available method
for offsetting adverse impacts. The definition of this term is
consistent with the BLM's mitigation policy.
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\10\ Executive Office of the President, Office of Science and
Technology Policy and Council on Environmental Quality, Guidance for
Federal Departments and Agencies on Indigenous Knowledge (Nov. 30,
2022), https://www.whitehouse.gov/wp-content/uploads/2022/12/OSTP-CEQ-IK-Guidance.pdf; BLM Instruction Memorandum No. 2022-011, Co-
Stewardship with Federally Recognized Indian and Alaska Native
Tribes Pursuant to Secretary's Order 3403 (Sept. 13, 2022), https://www.blm.gov/policy/pim-2022-011.
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The final rule defines the term ``intact landscape'' to guide the
BLM with implementing direction. The rule (Sec. 6102.2) 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 BLM received comments
suggesting the definition be updated to clarify the size of an intact
landscape, clarify the characteristics of an intact landscape
(including cultural landscapes), and add habitat connectivity and
mature, old-growth forests as markers of an intact landscape. The
definition was updated in the final rule to reflect commonly used
definitions in policy and ecological literature, link the definition of
``intact landscape'' to the revised ``landscape'' definition, and
define intact landscapes in a manner that is more easily measured and
assessed by the BLM to inform conservation actions. The revised
definition reflects the reality that intactness exists on a spectrum
and efforts to protect intactness should not be limited by a single
threshold, but rather reflect landscape-specific levels required to
support multiple use and sustained yield.
The final rule adds a definition for the term ``intactness,'' which
is a measure of the degree to which human influences alter or impair
the structure, function, or composition of a landscape. Because the
rule requires the BLM to identify intact landscapes, the agency will
need to measure and inventory intactness as a resource value. The final
rule clarifies that as part of managing to protect intact landscapes,
the BLM will develop and maintain an inventory of landscape intactness
using watershed condition assessments to establish a consistent
baseline condition. The BLM will then use the intactness inventory,
along with other high-quality information including habitat
connectivity and migration corridor data, to identify intact landscapes
in the land use planning process and consider management opportunities.
The final rule adds a definition for the term ``land health.'' Land
health is used throughout the rule to refer to the concept of a healthy
and functioning ecosystem, and the BLM defines the term in the final
rule to clarify the desired outcome of establishing land health
standards and to be consistent with the definition of rangeland health
in the BLM's Rangeland Health Standards Handbook, H-4180-1.\11\
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\11\ This handbook describes the authorities, objectives, and
policies that guide assessment of public land health and taking
appropriate action to achieve, or make progress toward achieving,
specified rangeland health standards. https://www.blm.gov/sites/blm.gov/files/uploads/Media_Library_BLM_Policy_h4180-1.pdf.
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The final rule makes small adjustments to the definition of the
term ``landscape'' to be more inclusive in terms of the types of
resources and interests that can anchor a landscape and to align with
definitions used in landscape ecology. The term ``landscape'' is used
throughout the rule to characterize a meaningful area of land and
waters on which restoration, protection, and other management actions
will take place. Determining how the BLM's management actions can
influence the health and resilience of ecosystems can vary across
landscapes and over time.
The rule defines ``mitigation'' consistent with the definition
provided by existing Council on Environmental Quality regulations (40
CFR 1508.1(s)), which identify various ways to address adverse impacts
to resources, including steps to avoid and minimize those impacts 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 minimize, and then compensate for any residual impacts.
This definition and the related provisions in the rule supplement
existing DOI policy, which among other things provides boundaries to
ensure that compensatory mitigation is durable and effective. The BLM
made no changes to the definition from the proposed rule.
The final rule adds a new definition for the term ``mitigation
bank'' because the term is used in the final rule along with ``in-lieu
fee program'' as a category of mitigation projects that would require a
mitigation lease with additional requirements beyond those that would
be required for smaller, single-use mitigation projects. A mitigation
bank is a site where resources are restored, established, enhanced, or
protected for the purpose of providing compensatory mitigation for an
authorized use that is impacting similar resources elsewhere. The
definition in the rule is consistent with the definition in the BLM's
Mitigation Manual, MS-1794.\12\
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\12\ This manual provides guidance on implementing consistent
principles and procedures for mitigation in the BLM's authorization
of public land uses. https://www.blm.gov/sites/default/files/docs/2021-11/MS-1794%20Rel.%201-1807.pdf.
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The final rule adds a new definition for the term ``mitigation
fund'' because the rule provides standards for the BLM to approve,
through a formal agreement, a third-party mitigation fund holder to
implement compensatory mitigation programs or projects. A mitigation
fund is an account established by a mitigation fund holder to collect
and then disperse funds for projects that satisfy compensatory
mitigation commitments and obligations. The rule also provides for the
BLM in some circumstances to require mitigation lease holders to submit
a formal agreement with a qualified mitigation fund holder.
The final rule defines the term ``mitigation strategies'' as
documents that identify, evaluate, and communicate potential mitigation
needs and mitigation measures in advance of anticipated public land
uses. The BLM received comments recommending replacing the word
``strategies'' with ``approaches'' or ``documents.'' The final rule
does not change the definition of this term, which is consistent with
the definition of mitigation strategies from the BLM's Mitigation
Manual, MS-1794.
The rule defines 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 the BLM's
Assessment, Inventory and Monitoring (AIM) Strategy,\13\ which provides
a standardized framework for assessing natural resource condition and
trends
[[Page 40319]]
on BLM-administered public lands. The BLM did not change the definition
of ``monitoring'' from the proposed rule because it is based on the
definition and use of that term in the grazing regulations (43 CFR
4100.0-5), is science-based, and enables the application of data to
inform land management and understand management effects.
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\13\ The AIM Strategy provides quantitative data and tools to
guide and justify policy actions, land uses, and adaptive management
decisions. https://www.blm.gov/aim.
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The rule defines the term ``permittee'' as a person or organization
with a valid permit, right-of-way grant, lease, or other land use
authorization from the BLM. The 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 defined a
permittee as a person; the final rule defines a permittee as a person
or other legal entity.
The final rule defines ``protection'' in the context of the
overarching purpose of the rule, which is to promote the use of
conservation measures to support the ecosystem resilience of public
lands. ``Protection'' is a critical component of conservation,
alongside restoration, and describes acts or processes that keep
resources safe from degradation, damage, or destruction. The rule
(Sec. 6101.2(b)) would include a stated objective to promote the
protection of intact landscapes on public lands as a critical means to
achieve ecosystem resilience. The BLM received comments that requested
clarification of the term protection and recommended distinguishing
between protection and preservation. Commenters suggested removing the
term preserve from the definition of protection, and commenters were
concerned that the term protection, as it was defined in the proposed
rule, was intended to set land aside and preclude other uses. The
definition of protection was updated in the final rule to clarify that
protection is not synonymous with preservation and is not intended to
prevent active management or other uses.
The rule defines ``public lands'' in order to clarify the scope of
the proposed rule and its intended application to all BLM-managed lands
and uses. The definition is similar to the definition of ``public
lands'' that appears at 43 CFR 6301.5, but the BLM has modified the
definition from the proposed rule in response to comments to clarify
that this rule extends only to BLM-managed surface estate. The
resulting definition in this rule is specific to new part 6100 and
should not be interpreted as changing the definition of ``public
lands'' in any other context, including where that term would extend to
BLM-managed mineral estate under other BLM regulations.
The rule defines ``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 rule, at Sec. 6102.4.2, discusses
reclamation in the context of bonding restoration and mitigation leases
to ensure lessees hold sufficient bond amounts to provide for the
reclamation of the lease areas and the restoration of any lands or
surface waters adversely affected by lease operations. The BLM made no
changes to the definition from the proposed rule.
The final rule defines ``restoration'' in the context of the
overarching purpose of this 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
passively or actively assist the recovery of an ecosystem that has been
degraded, damaged, or destroyed. The BLM received comments suggesting
that the rule acknowledge both passive and active restoration as
legitimate restoration methods and comments calling for the
clarification of what the BLM's broad-scale recovery goals are for
restoration. Specifically, commenters identified the need to be
explicit about the goal of returning ecosystems to a more natural,
native ecological state and that the use of nonnative species in
restoration projects is not the preferred option. The definition of
restoration was updated in the final rule to include both active and
passive restoration and to clarify that the goal of restoration efforts
is the recovery of an ecosystem to a more natural, native ecological
state.
The final rule adds a definition for the term ``significant causal
factor'' because the rule uses this term to trigger an obligation on
the part of the BLM to take appropriate action, including through the
modification of authorizations and management practices for relevant
programs and uses, in order to achieve land health. A significant
causal factor is a use, activity, or disturbance that prevents an area
from achieving or making significant progress toward achieving one or
more land health standards. The rule requires the BLM to document a
determination of the significant causal factor in circumstances in
which resource conditions are not achieving or making significant
progress toward achieving land health standards. If the BLM determines
that existing management is a significant causal factor preventing
achievement of land health standards, authorized officers must take
appropriate action as soon as practicable.
The final rule adds a definition for the term ``significant
progress,'' which is used in the rule as the measure of satisfactory
progress toward achieving land health standards. Many comments
requested clarification of this term, and while it is impractical to
quantify the magnitude or rate of change that constitutes significant
progress, the BLM developed a qualitative definition for purposes of
implementing the rule. The term is defined to mean measurable or
observable changes in the indicators that demonstrate improved land
health. Acceptable levels of change must be realistic in terms of the
capability of the resource but must also be as expeditious and
effective as practical.
The final rule bases its definition of ``sustained yield'' on the
FLPMA definition of that same term. This rule facilitates the use of
conservation to achieve resilient ecosystems on public lands, which are
essential to managing for multiple use and sustained yield. The BLM
received comments suggesting the definition be updated to incorporate
more precisely the language of the statutory definition, as well as
comments recommending combining the definitions of sustained yield and
multiple use and incorporating non-renewable resources into the
definition of sustained yield. The final rule updates the definition of
sustained yield to remain focused on renewable resources and
responsible development of non-renewable resources and to add
``consistent with multiple use'' to mirror the FLPMA definition of
sustained yield.
In response to public comments, the final rule expands the
definition of ``unnecessary or undue degradation'' to address its
distinct elements of ``unnecessary degradation'' and ``undue
degradation''; and confirms that the statutory obligation to prevent
``unnecessary or undue degradation'' applies when either unnecessary
degradation or undue degradation, and not necessarily both, is
implicated. The rule explains that ``undue degradation'' is harm to
land resources or values that is excessive or disproportionate to the
proposed action or an existing disturbance. For example, approving a
[[Page 40320]]
proposed access road through the only remaining critical habitat for a
plant listed as endangered under the Endangered Species Act, even if
there is not another location for the road, would generally (although
not always) result in undue degradation. The rule explains that
``unnecessary degradation'' is harm to land resources or values that is
not needed to accomplish a use's stated goals. For example, approving a
proposed access road through critical habitat for a plant listed as
endangered under the Endangered Species Act that could be located
elsewhere without impacting critical habitat and still provide the
needed access would generally (although not always) result in
unnecessary degradation.
This definition is consistent with BLM's affirmative obligation
under FLPMA to take action to prevent unnecessary or undue degradation,
which applies when either unnecessary degradation or undue degradation,
and not necessarily both, is implicated. The definition of
``unnecessary or undue degradation'' applies to the use of those terms
in the part 6100 regulations promulgated by this rule. It does not
alter the definition of the term ``unnecessary or undue degradation''
at Sec. 3809.5 of this chapter and does not apply to that term's use
in the regulations at subpart 3809 of this chapter.
The final rule adds a definition for ``watershed condition
assessment,'' which is defined to mean a process for assessing and
synthesizing information on the condition of soil, water, habitats, and
ecological processes within a watershed following the land health
fundamentals through consideration of the watershed's physical and
biological characteristics, landscape intactness, and disturbances.
Watershed condition assessments are equivalent to the ``watershed
condition classifications'' and ``land health assessments'' discussed
in the proposed rule. The final rule updates the term and provides this
definition in response to many public comments seeking clarification
and efficiency of process.
Section 6101.5--Principles for Ecosystem Resilience
The rule relies upon express direction provided in FLPMA to manage
public lands on the basis of multiple use and sustained yield, and it
establishes 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. The BLM made only minimal changes to
this section from the proposed rule.
Section 6101.5(d) directs authorized officers to implement
principles of ecosystem resilience by recognizing conservation as a
land use within the multiple use framework, including in decision-
making, authorizations, 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 rule clarifies 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 scientific, scenic, historical, ecological,
environmental, air and atmospheric, water resource, and archaeological
values, among other resources and values, and that protects certain
public lands in their natural condition. The BLM implements this
mandate through land use plan allocations, including designations, and
other planning decisions that conserve public land resources, seeking
to balance conservation uses with other uses, such as energy
development and recreation. The BLM also complies with this mandate
when issuing decisions that implement its land use plans. In these
implementation decisions, including when authorizing projects, the BLM
promotes conservation use by requiring appropriate mitigation of
impacts to natural resources on public lands. The rule provides
specific direction for implementing certain programs in a way that
emphasizes conservation use and provides new tools and direction for
managing conservation use to facilitate ecosystem resilience on public
lands.
As described in detail in each section, the BLM updated the final
rule in response to public comments to clarify processes, including how
conservation uses would occur within and outside of land use planning
processes; enumerate guiding principles for restoration and mitigation
actions; and provide other adjustments to improve public understanding
and agency implementation of the rule. The most significant change to
this subpart is that the final rule establishes restoration and
mitigation leases as two separate types of leases instead of providing
simply for conservation leases available for both purposes (which was
the approach in the proposed rule). The final rule expands the
regulations governing these leases to provide a more comprehensive
framework for implementation and respond to concerns heard from the
public.
Section 6102.1--Protection of Landscape Intactness
The BLM changed the title of Sec. 6102.1 from ``Protection of
Intact Landscapes'' in the proposed rule to ``Protection of Landscape
Intactness'' in the final rule. Public comments suggested that the rule
distinguish intactness as a resource value from intact landscapes as
delineated units. The change in the title of Sec. 6102.1 reflects that
landscape intactness is the resource value that the BLM is seeking to
identify and protect. The final rule includes a definition of the term
``intactness'' to further guide implementation of this section. Section
6102.1(a) and (b) require the BLM to manage certain landscapes to
protect their intactness and to seek to prioritize actions that
conserve and protect landscape intactness. The following section,
6102.2, provides direction for the BLM to inventory and protect
intactness on the public lands by identifying and managing intact
landscapes in the land use planning process.
Section 6102.2--Management To Protect Intact Landscapes
The BLM revised Sec. 6102.2 in response to public comments
requesting clarity around how intact landscapes would be identified and
managed within and outside of the land use planning process and to
distinguish intactness as a resource value from intact landscapes as
delineated units. The final rule establishes in Sec. 6102.2(a) that
the BLM will maintain an inventory of intactness on the public lands,
in accordance with FLPMA's requirement that the BLM maintain an
inventory of all public lands and their resources and other values.
In the land use planning process, Sec. 6102.2(b) requires the BLM
to use the intactness inventory, and other available information
including habitat connectivity and migration corridor data, to identify
intact landscapes, evaluate alternatives to manage intact landscapes,
and identify which intact landscapes or portions of intact landscapes
will be managed for protection. Furthermore, in the land use planning
process, Sec. 6102.2(c) requires the BLM to identify desired
conditions and landscape objectives to guide implementation decisions
regarding management of intact landscapes. In making management
decisions for intact landscapes, the BLM will seek to work
[[Page 40321]]
with communities to identify the most suitable areas to protect as
intact landscapes; consult with Tribes to identify opportunities for
co-stewardship; establish partnerships; and monitor effectiveness of
ecological protection activities.
In addition to the land use planning process described above, Sec.
6102.2(d) requires 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(e)
directs the BLM to develop a national system for collecting and
tracking disturbance and intactness data and to use those data to
minimize disturbance and improve ecosystem resilience. Data will be
made available to the public.
Section 6102.3--Restoration
In the proposed rule, restoration was divided across three sections
(Restoration, Restoration Prioritization, and Restoration Planning).
The final rule keeps a Restoration section but combines the remaining
two sections into a Restoration Prioritization and Planning section.
The definition of restoration, critical to interpretation of this
section, has been updated to provide that restoration actions include
both passive and active measures that assist the recovery of an
ecosystem that has been degraded, damaged, or destroyed. The definition
has been further updated to clarify that the intent of restoration
actions is the return of more natural, native ecological states. The
final rule emphasizes the importance of restoration in achieving
multiple use and sustained yield and requires a consideration of the
causes of degradation, the recovery potential of an ecosystem, and the
allowable uses in the governing land use plan, such as whether an area
is managed for recreation or is degraded land prioritized for
development, in determining restoration actions. Principles for
restoration actions, which were previously located in the Restoration
Planning section of the proposed rule, are now found in the Restoration
section to clarify that such principles apply to all restoration
actions.\14\ The principles include direction to consult with Tribes to
identify opportunities for co-stewardship or collaboration, similar to
the direction provided for managing intact landscapes.
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\14\ The reference to ``low-tech restoration activities'' in
section 6102.3(d) means the practice of using simple, low unit-cost,
structural additions (e.g., wood and beaver dams in streams) to
mimic natural functions and promote specific processes.
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Section 6102.3.1--Restoration Prioritization and Planning
A combined restoration prioritization and planning section at
6102.3.1 requires the identification of restoration outcomes in
resource management plans. Consistent with these outcomes, the section
requires the identification of priority landscapes for restoration at
least every 5 years and provides for a number of considerations for
authorized officers when doing so. The section requires the development
of restoration plans at least every 5 years and enumerates criteria
with which restoration goals, objectives, and management actions
identified in the plans must adhere. Among other criteria, restoration
plans must adhere to commonly accepted principles and standards within
the field of ecological restoration. Lastly, the section requires
authorized officers to track restoration implementation and progress
against identified goals and assess why restoration outcomes are not
being met and what, if anything, is additionally needed to achieve
restoration goals.
Section 6102.4--Restoration and Mitigation 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. Under that broad
authority, the rule provides a framework for the BLM to issue
restoration and mitigation leases on public lands for the purpose of
pursuing ecosystem resilience through mitigation and restoration
actions. The BLM will determine whether a lease is an appropriate
mechanism based on the context of each application for a proposed
lease, consistent with the final rule.
The BLM received many comments on the leasing provisions in the
proposed rule that resulted in changes in the final rule. These changes
include: establishing restoration leases and mitigation leases rather
than conservation leases, which as proposed would have been used for
either purpose; enabling conservation districts and State fish and
wildlife agencies to hold leases; including consideration of factors to
incentivize lease proposals that collaborate with existing permittees
and other affected interests and meet other desirable criteria;
requiring lessees to report annually on lease activity; and providing
for the BLM to waive or reduce the rent of a restoration lease if the
lease is providing valuable benefit to the public lands and is not
generating revenue.
Many commenters were concerned about public access to public lands
that are leased for restoration or mitigation purposes and expressed
concern that the rule's definition of ``casual use'' does not
explicitly guarantee use for common activities. While the BLM did not
change the definition of ``casual use'' in order to remain consistent
with existing regulations, the final rule specifically states that a
restoration or mitigation lease will not preclude access to or across
leased areas for recreation use, research use, or other authorized use
that is compatible with the restoration or mitigation activities.
Some commenters questioned whether the BLM through this rulemaking
or subsequent land use planning would allocate public lands as
available to or excluded from restoration and mitigation leasing. The
final rule does not identify or limit public lands that could be leased
for restoration or mitigation purposes. However, several provisions
guide the evaluation of which lands are suitable for leasing. The rule
requires the BLM to identify restoration priority landscapes, intact
landscapes, and landscape-scale mitigation strategies, and these areas
would be logical locations for leases to support restoration and
mitigation efforts the agency is prioritizing. The rule also enumerates
factors for evaluating lease proposals based on criteria that are
expected to make leases more successful. The rule does not allow for
leases to be issued where an existing, authorized, and incompatible use
is occurring, effectively removing areas from consideration for at
least some activities that could be authorized by a restoration or
mitigation lease. Additionally, any restoration or mitigation lease
would need to conform to the BLM's approved land use plan. These
provisions collectively guide restoration and mitigation leases to the
most suitable locations without requiring the BLM, in every instance,
to undertake a plan amendment or revision to allocate lands as
available for leasing.
The following paragraphs summarize the restoration and mitigation
leasing provisions in the final rule.
Section 6102.4(a) authorizes the BLM to issue restoration and
mitigation leases for the purpose of restoring degraded landscapes or
mitigating impacts resulting from other land use authorizations.
Entities that can hold restoration and mitigation leases include
individuals, businesses, non-governmental organizations, Tribal
governments, conservation districts, and State fish and wildlife
agencies. Qualified entities for a mitigation lease to establish an in-
lieu fee program
[[Page 40322]]
would be limited to non-governmental organizations, State fish and
wildlife agencies, and Tribal government organizations. Leases cannot
be held by foreign persons as that term is defined in 31 CFR 802.221.
The BLM will rely on standard lease adjudication practices established
in 43 CFR 2920 to determine if a lease applicant meets the
preconditions in this part for a qualified entity. Restoration and
mitigation leases will be issued for the necessary amount of time to
meet the lease objective. A lease issued for restoration purposes can
be issued for an initial term of up to 10 years, whereas a lease issued
for mitigation purposes will be issued for a term commensurate with the
impact it is mitigating. Activity on all leases will be reviewed for
consistency with lease provisions at regular intervals and can be
extended beyond their primary terms when extension is necessary to
serve the purpose for which the lease was first issued. Section
6102.4(a)(4) precludes the BLM from issuing new authorizations to use
the leased lands if the use would be incompatible with the authorized
restoration or mitigation use set forth in the lease.
Section 6102.4(b) and (c) set forth the application process for
restoration and mitigation leases. Applicants are required to submit
detailed restoration or mitigation development plans that include
information on outreach with existing permittees, lease holders,
adjacent land managers or owners, and other interested parties. The
authorized officer can require additional information such as
environmental data and proof that the applicant has the technical and
financial capability to perform the restoration and mitigation
activities.
Section 6102.4(d) enumerates factors for the authorized officer to
consider when evaluating a lease application. Those factors include:
lease outcomes that are consistent with restoration principles
established in the rule; lease outcomes tied to desired future
conditions that are consistent with the management objectives and
allowable uses in the governing land use plan, such as an area managed
for recreation or degraded land prioritized for development;
collaboration with existing permittees, leaseholders, and adjacent land
managers or owners; outreach to or support from local communities; and
consideration of environmental justice objectives.
Once a lease application is approved, Sec. 6102.4(e) requires the
applicant to provide the BLM with a monitoring plan and to report
annually and at the end of the lease period on lease activity.
Section 6102.4(f) and (g) provide that restoration and mitigation
leases do not entitle leaseholders to the exclusive use of the public
lands and that other uses compatible with the objectives of the
restoration or mitigation lease are explicitly allowed on leased lands.
Consistent with other land use authorizations, such as rights-of-way,
it is the BLM's view that no property interest is conveyed by issuing
these leases. Section 6102.4(g) confirms that a restoration or
mitigation lease will not preclude access to or across leased areas for
casual use, recreation use, research use, or other use taken pursuant
to a land use authorization that is compatible with the approved
restoration or mitigation use.
Section 6102.4(j) directs that cost recovery, rents, and fees for
restoration and mitigation leases will be governed by existing
regulations at 43 CFR 2920.6 and 2920.8 and that the BLM will generally
collect annual rental based on fair market value. Recognizing that
restoration lessees are providing a service to the public and the BLM,
the rule provides for waiving or reducing the rent of a restoration
lease if a valuable benefit is being provided to the public and revenue
is not being generated. This approach is consistent with the approach
in waiving rents for rights-of-way in 43 CFR 2806.15. Although section
102 of FLPMA provides a policy preference for recovering fair market
value for the use of the public lands (see 43 U.S.C. 1701(a)(9)), the
BLM is not required to do so, especially in circumstances in which
departing from charging a fair market value rent would further other
policy priorities identified in section 102 of FLPMA. Here, the BLM has
determined that allowing authorized officers the discretion to reduce
or waive rent for restoration leases will assist in its effort to
manage the public lands to protect the quality of ecological and other
relevant values. (See 43 U.S.C. 1701(a)(8))
Section 6102.4.1--Termination and Suspension of Restoration and
Mitigation Leases
The final rule makes only minimal changes to Sec. 6102.4.1 from
the proposed rule. Section 6102.4.1 outlines processes for suspending
and terminating restoration and mitigation leases. Where the
leaseholder fails to comply with applicable requirements, fails to use
the lease for its intended purpose, or cannot fulfill the lease's
purpose, the BLM may suspend or terminate the lease. An authorized
officer must issue an immediate temporary suspension of a lease upon
determination that a noncompliance issue adversely affects or poses a
threat to public lands or public health or safety. Following
termination of a lease, the leaseholder has 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 Restoration and Mitigation Leases
The final rule authorizes the BLM to require a bond for a
restoration or mitigation lease involving surface-disturbing or active
management activities, but does not require a bond in all cases as the
proposed rule would have. Section 6102.4.2(a) directs that for
mitigation leases, the lease holder will usually be required to provide
letters of credit or establish an escrow account for the full amount
needed to ensure the development plan meets all performance criteria.
The final rule includes considerations for requiring a bond, such as
the type and intensity of surface-disturbing activities, proposed use
of experimental or non-natural restoration methods, and risks
associated with the proposed actions.
Section 6102.4.2(b) through (d) establishes additional bonding
provisions regarding statewide bonds, filing of bonds, and default and
are unchanged from the proposed rule.
Section 6102.5--Management Actions for Ecosystem Resilience
The final rule includes minor updates to this section in response
to comments suggesting more clarity around how the section connects to
other sections of the rule. Commenters also recommended strengthening
the focus on ecosystem resilience and emphasizing biodiversity as an
important component of ecosystem resilience. This rule focuses
primarily on supporting healthy and resilient ecosystems, which are the
basis for multiple use and sustained yield and which, if achieved, will
benefit biodiversity, water security, carbon sequestration, forage, and
a host of other values.
Section 6102.5 sets forth a framework for the BLM to make informed
management decisions based on science and data, including at the
planning, permitting, and program levels, that would help to facilitate
ecosystem resilience. As part of this framework, authorized officers
are required to identify priority watersheds, landscapes, and
ecosystems that require protection and restoration efforts; develop and
implement protection,
[[Page 40323]]
restoration, mitigation, monitoring, and adaptive management
strategies; \15\ and share watershed condition assessment data with the
public. The final rule cross-references these requirements listed in
Sec. 6102.5(a) with other sections of the rule that provide additional
guidance on these management actions for ecosystem resilience.
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\15\ Adaptive management is a system of management practices
based on clearly identified outcomes and monitoring to determine
whether management actions are meeting desired outcomes and, if not,
facilitating management changes that will best ensure that outcomes
are met or reevaluated. Adaptive management recognizes that
knowledge about natural resource systems is sometimes uncertain (43
CFR 46.30).
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Section 6102.5(b) requires the BLM to meaningfully consult with
Tribes and Alaska Native Corporations and makes a change from the
proposed rule that provides for Tribal input on whether actions are
likely to substantially impact Tribes or Alaska Native Corporations.
The rule also requires the BLM to respect and include Indigenous
Knowledge in decision-making, including through Tribal co-stewardship,
and updates provisions and definitions in the rule to reflect current
departmental and agency guidance.
Consistent with applicable law and resource management plans,
including, for example, where an area is managed for recreation or is
degraded land prioritized for development, authorized officers are
required to make every effort 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
the BLM has limited discretion to condition or deny the use. Through
this frame, the rule recognizes that the BLM may develop land use plans
that prioritize degraded areas for development, such as in the Arizona
Restoration Design Energy Project, or generally prioritize areas for
utility-scale development, such as the Solar Energy Zones designated in
the 2012 Western Solar Plan, and that the effects on ecosystem
resilience in such a plan may be mitigated but will not be completely
avoided. The rule also requires the authorized officer to provide
justification for decisions that may impair ecosystem resilience. In
other words, the rule does not prohibit land uses that impair ecosystem
resilience; it requires avoidance as a general matter and an
explanation if impairment cannot be avoided.
To ensure the best available science is underpinning management
actions, the rule requires the BLM to use national and site-based
assessment, inventory, and monitoring data, along with other high-
quality information, to evaluate resource conditions and inform
decision-making.
Section 6102.5.1--Mitigation
The rule at Sec. 6102.5.1(a) directs the BLM to apply the
mitigation hierarchy to avoid, minimize, and compensate for adverse
impacts to all public land resources, generally in that order. The rule
states further that mitigation approaches or requirements may be
identified in land use plans or other decision documents. Consistent
with BLM's existing policy on mitigation (H-1794-1), which requires BLM
to consider compensatory mitigation for important, scarce, or sensitive
resources, Sec. 6102.5.1(b) expands upon this direction by requiring
that mitigation to address adverse impacts to such resources should be
applied with the goal of eliminating, reducing, and/or offsetting
impacts on the resource, consistent with applicable law. This
facilitates BLM's compliance with its multiple-use and sustained yield
mission by conserving such resources for future generations.
Determining the maximum benefit to an impacted resource from a
compensatory measure is often achieved by carefully identifying the
type, location, timing, and other aspects of the compensatory
mitigation measure. This assessment is conducted as standard practice
in the BLM's NEPA analysis and decision documents.
The rule also identifies new principles at Sec. 6102.5.1(c) to
apply when implementing mitigation, including the need to ensure
compensatory mitigation is commensurate with the impacts, and the use
of adaptive management, landscape-scale approaches, high-quality
information, and performance criteria and effectiveness monitoring.
At Sec. 6102.5.1(d), the rule allows the BLM to approve and use
third-party mitigation fund holders to administer funds for the
implementation of compensatory mitigation programs or projects and
specifies the type of actions third parties can perform with
compensatory mitigation funding. Section 6102.5.1(e) establishes the
requirements for different types of entities that could be considered
and approved as mitigation fund holders. The mitigation fund holder
could be a State or local government, if, among other requirements,
that entity can demonstrate to the satisfaction of the BLM that it is
acting as a fiduciary for the benefit of the mitigation project and
site. The section also allows for a mitigation fund holder to be an
entity that, among other requirements, qualifies for tax-exempt status
and provides evidence it can successfully hold and manage mitigation
accounts.
Sections 6102.5.1(f) through (i) provide further direction to
authorized officers in managing mitigation leases and lease holders,
including provisions to govern the collection of annual rent at fair
market value for large or otherwise substantial compensatory mitigation
programs or projects on public lands, including mitigation banks and
in-lieu fee programs.
Subpart 6103 Managing Land Health To Achieve Ecosystem Resilience
Section 6103.1--Land Health Standards
Consistent with the proposed rule, Sec. 6103.1 of the final rule
directs that all program areas of the BLM must be managed in accordance
with the fundamentals of land health, which are adopted, verbatim, from
the fundamentals of rangeland health included at 43 CFR 4180.1 (2005).
It does so by establishing a series of procedural requirements to guide
the BLM's actions to address land health. The rule does not require
that individual actions ``comply'' with the fundamentals of land
health, nor does it require achievement of those fundamentals (as
measured by the land health standards) as a precondition for any BLM
decision.
The rule in this section directs authorized officers to adopt
national land health standards across all ecosystems that provide
consistency and conformance with the fundamentals of land health and
facilitate progress toward meeting land health. Acknowledging the
importance of standards in managing all of the BLM's programs in
accordance with the fundamentals, the title of Sec. 6103.1 has been
changed to Land Health Standards. Section 6103.1 includes a new
paragraph (b) describing the resources, processes, and values addressed
through national land health standards as well as a new timeline at
paragraph (e) to review and amend or supplement standards and a
subsequent timeline to ensure standards remain sufficient. A new
paragraph at Sec. 6103.1(d) instructs authorized officers to
incorporate geographically distinct land health standards when needed
to address unique or rare ecosystem types that may not be addressed by
the national standards. These new timelines in the final rule--along
with additional
[[Page 40324]]
implementation specificity found in other land-health related sections
of the rule--are introduced in response to comments that sought more
clarity and specificity for how standards may be updated to serve as
appropriate measures for the fundamentals. Section 6103.1(f) makes
explicit that any new or amended land health standard must be approved
by the BLM Director prior to implementation.
Section 6103.1.1--Management for Land Health
Section 6103.1.1(a) conveys the importance of assessing land health
at a broad scale to manage for ecosystem resilience and provides that
authorized officers should rely on assessments and evaluations
conducted at such scales, as appropriate, to support decision-making.
Section 6103.1.1(b) reinforces the direction that all BLM program areas
must be managed to facilitate progress toward achieving land health
standards. Section 6103.1.1(b)(1) requires authorized officers to apply
existing standards in the administration of all BLM programs.
Initially, this will mean applying the existing standards prepared
pursuant to subpart 4180 of this chapter to all programs, not just
grazing. Moving forward, consistent, national standards will be
completed pursuant to procedures set out in this subpart, and not under
the procedures set out in subpart 4180, and will then apply to all
programs, including grazing. Section 6103.1.1(b)(2) directs programs to
develop management guidelines, which are best practices in managing
programs to achieve goals. Management guidelines are to be reviewed at
least every 10 years consistent with review timelines in other sections
that relate to land health. As with standards, existing management
guidelines applicable to the grazing program will continue to apply.
New and amended guidelines for grazing should be developed under the
procedures in this subpart, and not subpart 4180. Sections 6103.1.1(c)
and (d) require that land health be included in land use planning,
primarily when identifying allocation decisions and actions that are
anticipated to achieve land health outcomes, as well as any impediments
in doing so.
Section 6103.1.2--Land Health Evaluations and Determinations
Section 6103.1.2(a) has been modified to require that authorized
officers complete watershed condition assessments and land health
evaluations at least every 10 years. Watershed condition assessments
supplant land health assessments in the proposed rule and characterize
resource conditions, while subsequent land health evaluations interpret
assessment findings to draw conclusions about whether land health
standards are being achieved consistent with the fundamentals of land
health. This efficiency of process responds to many comments and
concerns about the BLM's ability to complete land health assessments
across broad spatial scales.
Direction to conduct watershed condition assessments and land
health evaluations at broader spatial scales, as opposed to at the
scale of an allotment or other more narrowly drawn boundary or project
area, builds on best practices currently deployed by BLM field offices,
responds to comments recommending landscape-scale approaches as a way
to address the backlog of pending land health assessments and
evaluations, and better serves efforts to understand and address land
health conditions across management boundaries.
Section 6103.1.2(d) provides what must be incorporated when
conducting land health evaluations, such as watershed condition
assessments and high-quality information requirements. Section
6103.1.2(d) further clarifies the requirements for conducting land
health evaluations, including that authorized officers document the
rationale and findings as to whether each land health standard is
achieved or making significant progress towards achievement.
Sections 6103.1.2(e), (f), and (g) describe the process after land
health evaluations determine if resource conditions are or are not
achieving or making significant progress toward achieving land health
standards. When watershed condition assessments and land health
evaluations find that resource conditions are achieving or making
significant progress toward achieving land health, then project-level
decisions should rely on such evidence where possible and appropriate.
Section 6103.1.2(f) provides for tiering documentation and evidence
from broad-scale assessments and evaluations for project-level
decisions, such as grazing permit renewals, which promotes efficiency
and streamlines decision-making. This provision responds to comments
concerned with the existing backlog of assessments land health
evaluations.
When watershed condition assessments and land health evaluations
find that resource conditions are not achieving, or making significant
progress toward achieving, land health standards, then causal factor
determinations, as directed by Sec. 6103.1.2(f), must be prepared no
later than a year after the evaluation. Determinations document
significant causal factors for non-achievement. Section 6103.1.2(f)(3)
requires authorized officers to take appropriate action as soon as
practicable to address nonachievement of land health standards when the
significant causal factors include existing management practices or
levels of use on public lands. However, as clarified in Sec.
6103.1.2(f)(4), to the extent existing grazing management practices or
levels of grazing use on public lands are significant causal factors
preventing achievement of land health standards, authorized officers
must also comply with the requirement for taking appropriate action set
by Sec. 4180.2(c) of this chapter, including that appropriate action
be taken not later than the start of the next grazing year.
Further, as noted previously, appropriate actions in a specific
situation will be informed and may be constrained by applicable law and
the governing land use plan. For example, where a land use planning
approach, such as BLM Arizona's Restoration Design Energy Project, is
intended to support development of renewable energy on disturbed or
previously developed sites, then appropriate actions would be designed
to add measures that facilitate the progress of the affected lands
toward meeting the applicable fundamentals of land health. However,
these actions would be informed by the overall approach of identifying
disturbed lands suitable for renewable energy development and applying
measures consistent with those management decisions. This is consistent
with the approach to incorporate design features into the Restoration
Design Energy Project Record of Decision to reduce overall impacts to
the lands identified for development. (See https://eplanning.blm.gov/public_projects/nepa/79922/107093/131007/RDEP-ROD-ARMP.pdf).
Section 6103.1.2(f)(5) identifies some appropriate actions that may
be deployed to address practices and uses determined to be significant
causal factors, consistent with applicable law, regulation, and the
governing resource management plan and its management objectives, such
as where an area is managed for recreation or is degraded land
prioritized for development. For example, if a governing resource
management plan identifies degraded lands for solar development and
those areas are not meeting standards, the authorized officer should
consider that land use planning decision in determining the appropriate
action. In that circumstance, it would typically
[[Page 40325]]
not be appropriate to deny solar or wind use altogether, although
design features or other mitigation measures may be applied. Section
6103.1.2(i) reinforces that appropriate actions must be consistent with
existing resource management plans and notes that if planning decisions
do not allow for appropriate actions to address significant causal
factors, then an authorized officer may decide to amend or revise the
applicable land use plan. However, whether to undertake a planning
process is at the discretion of the authorized officer. Sections
6103.1.2 (j) and (k) respond to public comment by requiring annual,
publicly available reporting on assessment, evaluation, and
determination accomplishments; results; and actions.
Section 6103.2--Inventory, Assessment, and Monitoring
The final rule requires the BLM to complete watershed condition
assessments every 10 years and consider them in multiple decision-
making processes. New paragraphs at Sec. 6103.2(a) further describe
the purpose, process, and requirements of conducting watershed
condition assessments in support of land use planning, protection of
intact landscapes, managing for ecosystem resilience, informing
restoration actions, and informing land health evaluations and
determinations. In response to public comments encouraging consistency
in analysis approach, standard data sources, and transparency, the
final rule adds in Sec. 6103.2(a) that the BLM must utilize multiple
sources of high-quality information to understand conditions and trends
relevant to land health standards and incorporate consistent analytical
approaches, quantitative indicators, and benchmarks where practicable.
It is anticipated that watershed condition assessments will frequently
be completed not by BLM State Offices, but by national-level resources,
such as the National Operations Center, utilizing standardized
procedures and existing data and analyses and validated with local data
and high-quality information as appropriate.
Section 6103.2(b) clarifies that the BLM's inventory of public
lands includes both landscape components and core indicators that
address land health fundamentals and requires the use of high-quality
information and inventory, assessment, and monitoring information,
including standardized quantitative monitoring data, remote sensing
maps, and geospatial analyses, to inform decision-making across program
areas. In response to public comments, the BLM clarified that this
inventory specifically includes infrastructure and renewable resources
and that it is available to the public (currently, https://gbp-blm-egis.hub.arcgis.com/). Section 6103.2(c) establishes principles to
ensure that inventory, assessment, and monitoring activities are
evidence-based, standardized, efficient, and defensible.
43 CFR Chapter II
Subpart 1610--Resource Management Planning
Section 1610.7-2--Designation of Areas of Critical Environmental
Concern
The rule includes changes to the land use planning regulations to
elaborate on the role ACECs play as the principal administrative
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 reiterates FLPMA's
requirement that the BLM give priority to the identification,
evaluation, and designation of ACECs during the land use planning
process and provides additional clarity and direction for complying
with this statutory requirement. The rule codifies in regulation
procedures for considering and designating potential ACECs that were,
prior to promulgation of this rule, partially described in regulation
and partially described in agency policy.
The BLM received many comments on the ACEC provisions of the
proposed rule, and the final rule reflects changes the BLM made based
on public comments. As described in more detail below, changes from the
proposed rule include: providing for the BLM to implement temporary
management for potential ACECs identified outside of an ongoing
planning process, with public notice and periodic reevaluation;
codification of research natural areas as a type of ACEC designated for
the primary purpose of research and education on public lands,
consistent with existing regulations and policy; a presumption that all
areas found to meet all three ACEC criteria will be designated in the
resource management plan; a management standard that requires the BLM
to administer designated ACECs in a manner that conserves, protects,
and enhances the relevant and important values; and a definition for
the term ``irreparable damage.''
The final rule also confirms that proposed and existing ACECs being
addressed in the planning process for a resource management plan or a
plan amendment will be identified in all applicable Federal Register
Notices and in public outreach materials. The BLM will not be required
to produce separate notices specific to ACECs. The following paragraphs
summarize the ACEC provisions in the final rule.
Section 1610.7-2(a) confirms that ACECs are the principal
administrative designation for public lands where special management is
required to protect and prevent irreparable damage to important
resources. ACECs are considered and designated in land use planning
processes, including resource management plan revisions and amendments.
Section 1610.7-2(b) requires authorized officers to identify,
evaluate, and give priority to areas that have potential for
designation and management as ACECs in the land use planning process,
and it provides that proposed and existing ACECs that will be addressed
in the planning process for a resource management plan, plan revision,
or plan amendment will be identified in all applicable public notices.
Section 1610.7-2(c) requires authorized officers to identify areas
that may be eligible for ACEC status early in the planning process and
specifies the need to target areas for evaluation based on resource
inventories, internal and external nominations, and existing ACEC
designations.
Section 1610.7-2(d) outlines the three criteria that must be met
for ACEC designation, which are relevance, importance, and special
management attention. The rule provides that values and resources may
have importance if they contribute to ecosystem resilience, landscape
intactness, or habitat connectivity, in addition to other importance
criteria. The final rule requires that values and resources have more
than local importance to meet the importance criteria, a change from
the proposed rule based on public comments. Special management
attention prevents irreparable damage to the relevant and important
values and would not be prescribed if the relevant and important values
were not present. The rule defines ``irreparable damage'' in this
context to mean: ``harm to a value, resource, system, or process that
substantially diminishes the relevance or importance of that value,
resource, system, or process in such a way that recovery of the value,
resource, system, or process to the extent necessary to restore its
prior relevance or importance is impossible.'' Requiring a finding that
special management attention is necessary for ACEC designation is
consistent with BLM practice and guidance but was not a feature of the
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regulations prior to promulgation of this rule.
Section 1610.7-2(e) provides that the BLM may designate an ACEC
research natural area (RNA) for an area that meets all three ACEC
criteria set forth in Sec. 1610.7-2(e) and is consistent with the
purposes for research natural areas established in existing regulations
at 43 CFR subpart 8223. These regulations allow the BLM to establish
RNAs for the primary purpose of research and education on public lands
having natural characteristics that are unusual or that are of
scientific or other special interest. The BLM's current guidance, as
set forth in the agency's Land Use Planning Handbook and ACEC Manual,
considers RNAs as a type of ACEC that are to be designated following
the ACEC designation process. The BLM has designated many ACEC RNAs in
existing land use plans following this guidance. Because this rule is
codifying the BLM's ACEC guidance and process, and in response to
public comments on this topic, the final rule provides for this RNA
designation.
Section 1610.7-2(f) provides that the boundaries of proposed ACECs
shall be identified for public lands as appropriate to encompass the
relevant and important values and geographic extent of the special
management attention needed to provide protection.
Section 1610.7-2(g) requires the BLM to analyze in detail all
potential ACECs that have relevant and important values in planning
documents. In the land use planning process, the BLM evaluates the need
for special management attention to protect the relevant and important
values of potential ACECs, which could include other allocations and
designations that would provide appropriate protection and prevent
irreparable damage to the relevant and important values.
Section 1610.7-2(h) directs that an approved resource management
plan, plan revision, or plan amendment will list all designated ACECs,
identify their relevant and important values, and include the special
management attention being provided to them.
Section 1610.7-2(i) establishes procedures for addressing potential
ACECs that are identified outside of an ongoing planning process. The
State Director has the discretion to determine the appropriate time to
evaluate whether the nomination meets the relevant, important, and
special management criteria identified in 1610.7-2(d)(1) through (3).
If a potential ACEC nomination meets all three criteria specified in
the regulations--that is, it has relevance and importance and needs
special management attention--then the State Director will, at their
discretion, either initiate a land use planning process to evaluate the
potential ACEC for designation or provide temporary management
consistent with the existing resource management plan to protect the
relevant and important values from irreparable damage. The final rule
clarifies that the authorized officer in this context would be the
State Director, consistent with other portions of the rule addressing
decisions on potential ACECs. If the BLM decides to implement temporary
management, the BLM will comply with all applicable laws, including
NEPA, notify the public, and reevaluate the area periodically to ensure
temporary management is still necessary. This provision does not change
the presumption that ACECs are nominated and addressed through resource
management planning processes, and it does not require the BLM to
evaluate ACEC nominations outside the planning process.
Section 1610.7-2(j) requires the State Director to: determine which
ACECs to designate based on specific factors including a presumption
that all potential ACECs that meet all three criteria will be
designated; provide a justification and rationale in decision documents
for decisions both to designate an ACEC and not to designate an ACEC;
administer designated ACECs in a manner that conserves, protects, and
enhances the relevant and important values and only allow casual use or
uses that will ensure the protection of the relevant and important
values; and prioritize acquisition of inholdings within ACECs and
adjacent or connecting lands that also possess the relevant and
important values of a specific ACEC. In response to comments, the final
rule eliminated the requirement included in the proposed rule that
State Directors provide annual reports describing activity plans and
implementation actions for each ACEC in the State. Such reporting is
more appropriately developed during implementation of the final rule
and should remain within the discretion of the State Director.
Section 1610.7-2(k) authorizes the State Director to remove an ACEC
designation in a land use planning process only when special management
attention is not needed because another legally enforceable mechanism
provides an equal or greater level of protection, or when the relevant
and important values are no longer present, cannot be recovered, or
have recovered to the point where special management is no longer
necessary.
Section 1610.7-2(l) identifies terms that are used in the ACEC
section--casual use, conserve, ecosystem resilience, intactness,
landscape, monitoring, protect, and restore--and provides that they
should be interpreted consistent with the definitions of those same
terms in Sec. 6101.4.
Severability
The provisions of the 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 the BLM with important
and independently effective tools to advance conservation on the public
lands. In particular, revisions to existing planning regulations at 43
CFR part 1600 governing the designation and management of ACECs are
separate from the balance of the rule, which promulgates the new 43 CFR
part 6100. Within part 6100, the rule includes a number of aspects that
function independently and hold independent utility. For example, the
rule's provisions pertaining to the identification and management of
intact landscapes and other values in land use planning and agency
decision-making; its framework for third-party restoration and
mitigation leasing; and its procedures for adopting national land
health standards, assessing land health, and using those assessments to
drive agency decisions operate as independent means to achieve the
rule's overarching goal of facilitating conservation of the public
lands. Hence, if a court prevents any provision of one part of this
rule from taking effect, that should not affect the other parts of the
rule. The remaining provisions would remain in force.
IV. Additional Response to Public Comments
The BLM received an initial total of 216,403 comments from
regulations.gov. Further analysis showed that there were public comment
submissions with multiple cosigners, sometimes several thousand on one
submission, which were initially counted as separate submissions but
ultimately identified as a single submission with multiple signatures.
Therefore, although 216,403 voiced their opinion, the final count of
comment letters came to 152,673. The comment letters on the proposed
rule are available for viewing on the Federal e-rulemaking portal
(https://www.regulations.gov) (search Docket ID: BLM-2023-0001).
The BLM has reviewed all public comments in the context of the
proposed rule and the particular
[[Page 40327]]
solicitations for comment in its preamble. The BLM has made changes to
the final rule based on the public comments that refine and further
develop the concepts identified in the proposed rule. The BLM did not
make wholesale changes or additions, even when prompted to do so by the
public comments, that would have caused the final rule to materially
alter the issues included in or substantially depart from the terms and
substance of the proposed rule. Changes made are described in this
section and the ``Section-by-Section Discussion of Final Rule and
Revisions from the Proposed Rule'' section.
The following is a summary of significant issues raised in comments
the BLM received on the proposed rule and responses to these comments.
The comments highlighted in the following paragraphs fell into several
categories: comments related to sections of the proposed rule; comments
related to public lands uses and resources not addressed in the rule;
and comments on the rulemaking process. See the Section-by-Section
discussion for responses to public comments on specific sections of the
proposed rule.
A. Conservation Leasing
Commenters generally sought a better understanding of many aspects
of the conservation leasing proposal, including the purposes and uses
of the leases, and identified the need for terminology that better
reflects those purposes and uses. Commenters requested additional
detail within the rule text for what would and would not be allowed
under a conservation lease, clarification on the terms and duration of
the leases, and information on how conservation leases would interact
with existing uses such as grazing and recreation.
In response to these comments, the BLM updated the rule to provide
clarity and specificity for the leasing program being established in
the rule. Significantly, the final rule establishes two distinct types
of leases in place of referring to ``conservation leases'': restoration
leases and mitigation leases. Restoration leases can be used to
facilitate restoration of land and resources by passively or actively
assisting the recovery of an ecosystem; and mitigation leases can be
used to offset impacts to resources resulting from other land use
authorizations. Restoration can occur under a mitigation lease when
restoration is a mitigation action being taken pursuant to the lease.
The final rule enumerates factors for authorized officers to consider
when evaluating lease proposals, such as whether the applicant is
collaborating with existing permittees, whether the lease would advance
environmental justice objectives, or whether the objectives of the
proposed leases would be supported by current management of the lands.
The final rule also enables conservation districts and State fish and
wildlife agencies to hold restoration and mitigation leases and
specifies that recreation uses would not generally be precluded by
restoration or mitigation leases.
Many comments also asked about how conservation leases relate to
valid existing rights and permitted uses, including grazing, mining,
and oil and gas leasing. Restoration and mitigation leases would not
disturb existing authorizations, valid existing rights, or State or
Tribal land use management. If the proposed activities in a restoration
or mitigation lease would conflict with existing authorizations, such
as if a specific type of restoration would not be compatible with
grazing and the proposed location is already subject to a grazing
authorization, then the restoration or mitigation lease could not be
issued on those particular lands unless the proposal were modified to
eliminate the conflict. While an applicant might propose a lease to
help achieve restoration or mitigation outcomes on public lands, the
BLM retains discretion as to whether to issue a lease in response to a
proposal.
Some commenters raised concerns about the ability of foreign
entities to use conservation leases to block development of critical
mineral or energy projects on public lands or to obtain conservation
leases near military bases or other sensitive government installations.
In response to these and other comments on the potential use of
conservation leases in ways that would excessively interfere with other
uses or to intentionally block development, the BLM clarified that
restoration and mitigation leases may only be issued for two discrete
purposes: restoration of degraded landscapes or mitigation to offset
the impacts of development (6102.4(a)(1)). To specifically address
concerns around foreign actors, the BLM also revised the rule to
explicitly exclude foreign persons, as that term is defined in 31 CFR
802.221, from being qualified to hold a restoration or mitigation
lease. The BLM will rely on its standard lease adjudication practices
established in 43 CFR 2920 to determine if a lease applicant meets the
preconditions for a qualified lease holder.
The final rule includes various other updates to the language
throughout the text of the rule to provide readers with a clearer
understanding of the goals and future implementation of the leasing
program. For example, the final rule adopts principles for restoration
and mitigation that provide additional structure for restoration and
mitigation leases. The final rule also refines the BLM's discussion of
intact landscapes and restoration priority landscapes, which would
support identification of areas for restoration and mitigation leases.
Many commenters recommended that conservation leases should undergo
NEPA analysis. A project-level decision to issue a restoration or
mitigation lease will comply with NEPA, as is typically the case for
Federal actions on public lands, and the BLM will prepare a NEPA
analysis to support such project-level decisions when appropriate.
B. Restoration
Commenters provided a wide variety of comments on the topic of
restoration. Comments generally related to one of three broad issues:
the definition of restoration; the process by which restoration
priorities are identified and the use of resource management plans
(RMPs) in doing so; and conflicts that can arise in the application of
restoration actions.
Several commenters expressed the need for clarifying the definition
of restoration and suggested that it should include the concept of
returning an area to its natural, native ecological state with several
comments recommending that the BLM look to the Society for Ecological
Restoration's ``International Principles and Standards for the Practice
of Ecological Restoration'' for guidance.
Other commenters requested clarification as to where, how, and when
restoration priorities are determined under the rule and called for
transparency and public engagement in this process. Some comments also
mentioned the use of resource management plans to identify and
communicate restoration priorities and expressed concern that including
restoration plans in RMPs could complicate and lengthen the RMP
adoption or revision process. Other commenters, however, suggested that
focusing on creating a 5-year schedule for restoration activities
within RMPs is too narrow and proposed looking across watersheds (or
subbasins or basins) to identify priorities at the state level,
irrespective of RMP boundaries. They stated doing so may assist the BLM
in better allocating limited restoration funds. Other comments
suggested that restoration plans focus on implementation-level
decisions rather than being incorporated into RMPs. One
[[Page 40328]]
comment suggested that each BLM district have a map identifying
specific areas suitable for restoration measures.
Commenters expressed concerns about the practicalities and
potential conflicts with implementing restoration across all BLM-
administered lands. Comments discussed how in certain cases,
restoration to a reference state may not be feasible or appropriate
because the landscape has crossed an ecological threshold and is highly
unlikely to be fully restored, or because the resource has high value
or function and unique character that cannot be restored or replaced.
Several comments discussed the proposed rule's treatment of land health
standards in the context of restoration, noting that some restoration
actions may not always have positive effects on land health and
questioning whether achieving land health standards should be the sole
purpose of restoration plans. Commenters raised examples of restoration
projects in which the BLM removed pinyon-juniper forest through
ecologically damaging practices such as chaining.
In response to comments, the BLM included a new provision within
Sec. 6102.3 (``Restoration'') to apply a set of principles to all
restoration activities. These principles were largely identified in the
draft rule in the context of planning for restoration. In response to
comments, these principles now apply to all restoration actions and,
among other purposes, seek to ensure that restoration actions directly
address the causes of degradation and, importantly, take into
consideration the recovery potential of the habitat. These principles
will help the BLM target the right restoration actions in the right
places, thereby reducing unintended outcomes and increasing the
potential for successful restoration.
The principles also ensure that both passive and active management
actions are allowable and promoted as restoration activities. Likewise,
the definition of restoration has been changed to include explicit
mention of both passive and active processes or actions and, in
response to comments, include a stated goal of restoration actions to
return ecosystems to a ``more natural, native ecological state.''
In response to comments on restoration prioritization and planning,
the BLM revised the rule text to provide for the development of
restoration plans outside of the RMP revision or amendment process. The
final rule requires authorized officers to identify priority landscapes
for restoration, consistent with existing, applicable RMP goals and
objectives, and to prepare a restoration plan for those priority
landscapes. Technical details, including for example geographic scale,
for the development of restoration plans can be addressed through
agency guidance. Such guidance may also address how to incorporate land
health standards into restoration plans and may identify commonly
accepted scientific standards within the field of ecological
restoration for restoration work.
C. Mitigation
Generally, comments on the mitigation aspects of the rule could be
grouped into three categories: the BLM's authority under FLPMA to
require mitigation; the policies and practices that govern how the BLM
will deploy mitigation, including use of the mitigation hierarchy; and
the use of leases, as proposed by the rule, for mitigation purposes.
Many commenters expressed reservations about the BLM's mitigation
management approach under the proposed rule, particularly how it might
conflict with the multiple use mandate outlined in FLPMA. Critics
argued that this could inadvertently prioritize resource preservation
at the expense of a more comprehensive management approach, in
particular with regard to grazing and recreation. Some commenters
posited that the proposed mitigation standards are unlawful and reach
beyond the BLM's authority under FLPMA and conflict with other
statutory mandates. Other commenters conveyed the reverse, suggesting
that the BLM's authority and responsibility to apply the mitigation
hierarchy is central to managing for multiple use and sustained yield.
For the reasons discussed in more detail in the Background section
above, FLPMA allows the BLM to balance the need for resource
conservation alongside other uses as part of managing under principles
of multiple use and sustained yield. In turn, FLPMA vests the BLM with
broad authority to incorporate appropriate mitigation in its land use
planning and to require other users of the public land to avoid,
minimize, and compensate for resource impacts, as appropriate, from
authorized uses. 43 U.S.C. 1712I, 1732(a)-(b); see also M-37039, The
Bureau of Land Management's Authority to Address Impacts of its Land
Use Authorizations through Mitigation, at 11-22 (Dec. 21, 2016)
(reinstated by M-37075 (Apr. 15, 2022)) (``[The] BLM's charge under
FLPMA to manage public lands based on principles of multiple use and
sustained yield supports use of mitigation. The authority to evaluate
and impose mitigation arises out of the broad authority FLPMA vests in
the BLM to pursue congressional goals . . . for public lands. The BLM
can evaluate and require mitigation through both the land use planning
process and site-specific authorizations.'').
There were a number of comments regarding how and where the BLM
would deploy mitigation under the proposed rule. Commenters recommended
that the BLM amend the rule to require mitigation only to the extent
practicable or reasonable and highlighted the need for the BLM to
coordinate mitigation with local and State conservation plans. Many
commenters were concerned that the use of compensatory mitigation would
allow for development in sensitive areas that would otherwise not be
allowed, such as ACECs or intact landscapes, and recommended that
compensation should not be used to justify activities that could
degrade these areas. Some commenters called on the BLM to require that
compensatory mitigation measures ensure a net benefit for biodiversity,
adhering to established international principles, or avoid the net loss
of ecologically intact land. Some commenters narrowed their concern to
how compensatory mitigation may specifically impact recreation, which
can significantly degrade public resources, and urged that the rule not
apply compensatory mitigation requirements to nonprofit organizations,
and that ongoing trail use not be subject to such requirements.
In response to these comments, the BLM added mitigation principles
to the final rule to provide a framework for how mitigation will be
deployed under the rule, including through the mitigation hierarchy and
mitigation leasing. The principles are consistent with agency policy
and guidance for implementing mitigation, such as developing landscape-
scale mitigation strategies, requiring performance criteria and
effectiveness monitoring for mitigation programs and projects, and
ensuring that compensatory mitigation is durable, additional, timely,
and commensurate with adverse impacts. The final rule also confirms
that the BLM will adhere to the mitigation hierarchy and that for
important, scarce, or sensitive resources, the BLM will apply the
mitigation hierarchy in the manner that achieves the maximum benefit to
the impacted resource.
Many commenters emphasized the necessity of ensuring that any
mitigation credits are based on completed restoration efforts that are
actively functioning as habitat for native species impacted by
development. These
[[Page 40329]]
commenters objected to permitting any proposal to issue credits based
on future promises of restoration. Another commenter advocated for
third-party mitigation fund holders to facilitate restoration on BLM-
managed lands, specifically highlighting the role of private sector
mitigation providers, including the ability for private third-party
providers to hold mitigation funds. In response to comments, the BLM
clarified the types of third-party entities it will allow to hold
mitigation funds through a formal agreement. The mitigation fund holder
could be a State or local government, if, among other requirements,
that entity can demonstrate to the satisfaction of the BLM that it is
acting as a fiduciary for the benefit of the mitigation project and
site. The section also allows for a mitigation fund holder to be an
entity that, among other requirements, qualifies for tax-exempt status
and provides evidence it can successfully hold and manage mitigation
accounts.
D. Land Health
Comments on aspects of land health in the proposed rule were
diverse and focused on: BLM's capacity to evaluate land health across
all BLM managed lands, the land health fundamentals, standards, and
guidelines; the connection between land health and ecosystem
resilience; the application of land health in resource decision-making;
and questions about the role of Resource Advisory Councils.
Several commenters conveyed support for the proposal to apply the
fundamentals of land health and related standards and guidelines to all
BLM-managed public lands and uses, expanding them beyond their original
application to rangelands and grazing.
In response to comments, the rule includes streamlined assessment
processes applicable at broad spatial scales and a subsequent timeline
to review whether such standards remain sufficient.
Commenters provided different recommendations as to how standards
and guidelines should be updated. Some suggestions included tying new
standards to quantifiable ecologically based performance metrics,
specific ecoregions, specific resources, or local ecosystems and
conditions. Whatever the outcome of new standards, many commenters
conveyed a need for the BLM to provide the public the rationale for new
standards and guidelines and clarity as to how they will be applied.
In response to comments, the final rule includes language adopting
consistent national land health standards and an allowance to modify
national standards to address unique and rare geographic needs.
A few commenters recommended the BLM use flexibility in land health
standards to accommodate the diverse array of land uses, especially
nonrenewable resources and those with potential surface-disturbing
impacts. Various commenters expressed concern that expanding
application of land health was unworkable as the BLM cannot meet the
current demands for conducting land health analysis under 43 CFR
Subpart 4180. To address this, commenters provided several
recommendations, including setting appropriate monitoring frequencies,
scales, and thresholds, with timelines for corrective actions and
milestones. Additionally, commenters supported applying land health at
the watershed rather than narrower or smaller scales (allotments,
projects, etc.).
In response to comments, the final rule directs the BLM to
establish nationally consistent land health standards and indicators
and tiers land health standards directly from the fundamentals of land
health in order to apply land health standards to a diverse array of
land uses. Authorized officers must adopt the national standards and
may also adopt geographically specific standards when necessary to
evaluate rare or unique habitat or ecosystem types, such as permafrost.
To address concerns about the BLM's capacity to apply land health
standards to all program areas, the final rule allows field offices to
use watershed condition assessments (completed every 10 years) as the
baseline for land health evaluations. With watershed condition
assessments, land health is assessed at a broad spatial and temporal
scale, and may be supplemented by locally specific data.
Some commenters were confused about the role of the Resource
Advisory Councils in the development of new standards and guidelines
and sought clarification. Although the BLM engages with its Resource
Advisory Councils on a wide range of issues, the rule does not require
the engagement of Resource Advisory Councils in the development and
supplementation of standards and guidelines.
E. Areas of Critical Environmental Concern
Various commenters advocated for strengthening the ACEC relevance
and importance criteria, particularly by including habitat connectivity
and biodiversity considerations, to ensure the protection of natural,
cultural, and scenic resources. Additionally, many comments highlighted
the importance of old-growth and mature forests and requested explicit
language in the rule to protect and restore old-growth conditions
through ACEC designation. The final rule establishes that a historic,
cultural, or scenic value; a fish or wildlife resource; or a natural
system or process has importance if it contributes to ecosystem
resilience, landscape intactness, or habitat connectivity, among other
importance criteria. While the final rule does not explicitly
contemplate protection of old-growth forest conditions through ACEC
designation, the rule specifically enables that management decision by
identifying ecosystem resilience and landscape intactness as elements
of the ACEC importance criterion. Other provisions in the final rule
note that old-growth forests contribute to ecosystem resilience and
landscape intactness, such as Sec. Sec. 6101.2 and 6102.1.
Commenters recommended the final rule mandate more stringent
management of designated ACECs in order to ensure protection of
relevant and important values identified by the BLM. In response to
these comments, the BLM added a management standard to the final rule
to ensure ACEC values are appropriately managed for protection and
clarified the presumption that a potential ACEC that meets all three
criteria of relevance, importance, and needing special management
attention will be designated in the land use plan.
Commenters raised concerns about ACEC nominations occurring outside
of land use planning processes and that temporary management of
potential ACECs would delay other land use authorizations such as
renewable energy projects. Questions were raised about the
responsibility to notify the public of temporary management decisions
and whether temporary management must conform to the current resource
management plan. Commenters were also generally interested in ensuring
stakeholders and the public have adequate opportunities to participate
in ACEC designation decisions.
Generally, the BLM addresses ACECs in the land use planning
process. This is because designation of ACECs is intended to be a
proactive land management decision to enhance management of important
lands and resources. Such decisions should be made while also
considering other potential management decisions that may affect those
same lands and resources. In rarer situations, the BLM may identify a
potential ACEC outside of the planning process and find that it needs
special management attention to
[[Page 40330]]
ensure proper stewardship of resources and values the agency is charged
with managing. In both contexts, the BLM must find that the lands at
issue not only possess relevant and important values but also require
special management attention. The final element of the standard for
ACEC designation means more than finding special management attention
will benefit the identified values; rather, it requires a finding that
special management is necessary for their stewardship.
Within the land use planning process, the BLM has many tools at its
disposal to provide necessary management of resources, ranging from
special designation to more narrow management prescriptions. Outside of
the planning process, temporary management of a potential ACEC may be
the best option for addressing an area that has relevant and important
values and requires special management attention to protect them. In
those situations, under the final rule and consistent with existing
guidance, the BLM may at the agency's discretion implement temporary
management to protect the relevant and important values from
irreparable damage until the BLM determines whether to designate the
potential ACEC through a land use planning process. When implementing
temporary management, the BLM would comply with applicable laws and
regulations, notify the public, and reevaluate the decision
periodically.
The BLM has the authority and the responsibility to mitigate
impacts to public land resources from land use authorizations,
including by avoiding, minimizing, and offsetting those impacts,
independent of ACEC designation status. 43 U.S.C. 1732(a)-(b).
Therefore, the BLM does not expect that an ACEC nomination or temporary
management process will increase conflict where resources may be
impacted by development proposals. Rather, the BLM intends these
provisions of the rule to provide a proactive pathway for managing
relevant and important values that require special management attention
in the limited circumstances in which these values are identified
outside of the planning process.
For example, if the BLM is evaluating a proposed development
project and has not incorporated consideration of new ACEC designations
into the NEPA process for that project, then it is anticipated that the
BLM, consistent with existing guidance, would analyze potential impacts
to resources and apply the mitigation hierarchy to address those
impacts through the NEPA process rather than considering new ACEC
designations as part of the ongoing NEPA process. This rule would not
require the authorized officer to analyze ACEC nominations during that
NEPA process. Rather, the State Director would have the discretion to
determine when to evaluate ACEC nominations; the State Director could
elect to defer that evaluation to an upcoming planning process. The
State Director also would have the discretion to apply temporary
management in the area, but only after determining that the area meets
the relevance and importance criteria and that special management is
necessary to protect the area's relevant and important values from
irreparable damage. In other words, the State Director's discretion
would include: continuing to process the project by deferring analysis
of ACEC nominations; using the data related to ACEC nominations to
inform the project analysis; and processing ACEC nominations and
incorporating any temporary management into the project evaluation. In
all circumstances, the BLM has the discretion to consider ACEC
nominations and take steps to implement temporary management for
relevant and important values or undertake a plan amendment process to
designate new ACECs as outlined in the final rule. The BLM plans to
provide additional guidance on situations in which an ACEC nomination
overlaps with a pending development project application.
The final rule also emphasizes the ample opportunities for public
notice and comment on the ACEC designation process through the resource
management planning process, which requires robust public and
stakeholder engagement as well as cooperation with local governments
and consultation with Tribal governments (43 CFR 1610.2). The final
rule confirms that proposed and existing ACECs being addressed by a
resource management plan or a plan amendment will be identified in all
applicable Federal Register Notices and in public outreach materials.
The BLM will not, however, be required to continue to produce separate
notices specific to ACECs which the BLM found to be duplicative and not
in the public interest. The BLM will continue to provide the public
with an opportunity to comment on proposed and existing ACECs through
the land use planning and associated NEPA requirements for public
involvement.
F. Intact Landscapes
Many commenters requested clarity on the rule provisions related to
intactness, including how intact landscapes would be identified and
managed. Comments recommended that a comprehensive inventory of intact
landscapes be part of the land use planning process and that the rule
make stronger commitments to prioritizing the conservation and
protection of intact landscapes in order to advance the purpose of
supporting ecosystem resilience. Additionally, commenters stressed the
importance of incorporating community input.
Some commenters emphasized the need to consider other potential
uses, such as renewable energy development, and the multiple use
management approach when determining whether to manage certain
landscapes for intactness. Several comments addressed the importance of
acknowledging the human history of intact landscapes and incorporating
the concept of cultural landscapes, as well as considering co-
stewardship agreements for identified landscapes.
In response to these comments, the BLM updated the rule to clarify
that ``landscape intactness'' is part of the resource inventory that is
to be maintained and considered in accordance with FLPMA. The final
rule also clarifies the land use planning process for this resource,
which includes using the intactness inventory to identify and delineate
intact landscapes, evaluating alternatives for managing the intact
landscapes, and making management decisions for at least some of the
intact landscapes or portions of intact landscapes that conserve their
intactness. Habitat connectivity and migration corridor data would
inform identification and management of intact landscapes, and the BLM
would seek opportunities for Tribal co-stewardship in managing and
protecting intact landscapes. The BLM anticipates that intact
landscapes may vary widely in size and that not every acre of an intact
landscape will be managed the same way, as the management focus would
be on maintaining function of intact landscapes while facilitating
multiple use and supporting sustained yield.
The identification of intact landscapes in the land use planning
process would not necessarily preclude land use authorizations that
would impair their intactness; rather the BLM would make management
decisions for each landscape that would determine allowable uses. Some
development could be compatible with management to conserve intactness,
and intact landscapes may serve as desirable areas for restoration and
mitigation leases. Once an intact landscape has been identified in a
land use planning
[[Page 40331]]
process, the BLM would consider that resource and analyze potential
impacts to it in the planning process and NEPA analysis to evaluate
proposed uses, regardless of management decisions for the landscape,
consistent with NEPA's requirement that the BLM analyze potential
impacts from proposed actions.
G. Grazing
Commenters expressed concern regarding what they considered to be
broad and ambiguous interpretations of terms ``conservation,'' ``intact
landscapes,'' and ``ecosystem resilience,'' and for the potential for
the proposed rule to limit or prohibit consumptive uses, such as
grazing. The comments highlighted the need for clarity and consistency
in definitions and objectives, suggesting modifications to acknowledge
existing uses permitted under FLPMA.
The BLM also received a significant number of comments questioning
how conservation leases relate to authorized grazing. Many comments
highlighted the need to clarify how proposed conservation leases will
interact with grazing management, particularly in cases where grazing
may conflict with restoration goals.
In response to comments, the BLM made changes to the leasing
section of the final rule. Those changes are summarized in the
``Section-by-Section Discussion of the Final Rule and Revisions from
the Proposed Rule'' section and in the ``Conservation Leasing'' section
of this discussion. Importantly, the BLM clarified that if proposed
activities in a restoration or mitigation lease would conflict with
existing authorizations, such as if a specific type of restoration
would not be compatible with grazing and the proposed location is
already subject to a grazing authorization, then a lease authorizing
that type of restoration could not be issued on those particular lands.
Additionally, the final rule elevates proposals for leases that can
demonstrate collaboration with existing permittees, leaseholders, and
adjacent land managers or owners and those that have support from local
communities.
Commenters expressed different views as to whether grazing can be
used as a land health solution, with some noting that grazing should be
used as a land health management tool, while others stated that any use
of grazing operations by the BLM to promote land health standards would
likely preclude achieving land health goals. Some commenters argued
that managed grazing can in fact achieve land health standards and that
specific practices, such as targeted grazing, have been used to create
fire breaks, manage invasive species, and promote land health. Other
commenters argued that livestock grazing is incompatible with
restoration and that grazing should be eliminated in areas undergoing
restoration. This rule is not establishing or revising regulations
governing the BLM's grazing program and does not contemplate using or
not using grazing as a land health management tool. As previously
discussed, conservation takes many forms on public lands, including in
the ways grazing and many other uses are carried out. This rule focuses
on conservation as a land use within the multiple use framework and
develops the toolbox for conservation use that enables some of the many
conservation strategies the agency employs to steward the public lands
for multiple use and sustained yield. Grazing as a management tool may
fit within these strategies.
Many commenters emphasized the impact that livestock grazing has
had on BLM-managed public lands and the need for the BLM to commit to
its responsibility under 43 CFR subpart 4180 to monitor achievement of
rangeland health standards and manage for proper functioning
conditions. One commenter noted that when an allotment fails to meet
the standards, changes in grazing practices must be instituted to
restore rangeland health. The BLM is not revising subpart 4180 as part
of this rulemaking.
H. Recreation
Many commenters emphasized that outdoor recreation is dependent on
healthy public lands and waters that provide desirable recreation
experiences, which in turn support regional economic growth and help
Americans connect with their public lands. They further noted that
climate change is having a particular impact on outdoor recreation
through drought and catastrophic wildfire, highlighting the need for
resilient public lands that can continue to provide recreation
opportunities in a changing future. These commenters requested the rule
explicitly recognize the tie between landscape health and outdoor
recreation and acknowledge that sustainable recreation is compatible
with conservation use.
In response to comments, the final rule includes a new objective
to: ``Provide for healthy lands and waters that support sustainable
outdoor recreation experiences for current and future generations.''
The BLM views sustainable recreation as being compatible with
conservation management, including specifically with restoration and
mitigation leasing, protection of intact landscapes, management for
land health, designation of ACECs, and other principles and management
actions provided for in the rule. Furthermore, the BLM anticipates that
outdoor recreation would benefit from these conservation measures and
would be considered a reason to protect and restore certain landscapes.
The additional objective at Sec. 6101.2(g) aims to reflect this
intent. The final rule does not specifically address recreation in more
detail because the rule is not intended to establish regulations
governing recreation use.
Some commenters raised concerns that the rule would reduce the
amount of public land available for outdoor recreation. The rule would
not change plans, policies, or programs governing recreation activities
on public lands; recreation management would still be determined at the
local level through land use planning and site-specific recreation
management actions such as developed recreation sites, transportation
system routes, or trails. As the BLM implements the rule, recreation
management decisions will incorporate the objectives and principles set
forth in the rule to support landscape health and ecosystem resilience.
The rule is not intended to prevent or decrease outdoor recreation use;
rather it ensures that recreation on public lands can be managed and
grow sustainably while benefiting from the conservation of healthy
lands and water.
I. Renewable Energy
Commenters raised concerns about the potential conflicts that could
arise between the proposed rule and the BLM's ability to manage and
promote renewable energy development. In response to comments, the BLM
clarified mitigation language that would allow for renewable energy
siting and development, or other kinds of projects, even when that
development produces unavoidable impacts. Establishing methods to
ensure impacts can be offset and expanding the ability to site
compensatory mitigation on public lands through mitigation leases
creates more opportunity to permit use while accounting for the
unavoidable impacts of such use.
Commenters argued that application of land health standards to
renewable energy projects as well as changes to identification and
designation of ACECs may have the effect of significantly diminishing
the BLM's ability to identify locations where it can permit renewable
energy installations and
[[Page 40332]]
associated infrastructure. As noted in the discussion of the BLM's
response to comments on ACECs, the BLM does not expect that ACEC
designations or the potential for temporary management of proposed
ACECs will increase conflict where resources may be impacted by
development proposals. Rather, the BLM intends these provisions of the
rule to provide a proactive pathway for managing relevant and important
values that require special management attention, including in the
limited circumstances in which these values are identified outside of
the planning process.
Lastly, commenters conveyed concern that the proposed rule rested
too much decision-making authority on BLM staff over a number of
aspects of the rule and that such authority should reside with BLM
State Directors. In response, the BLM clarified the responsibilities of
Field Managers and State Directors in the ACEC section.
J. Cultural Resource Management
Some comments discussed the connection between cultural values and
ecosystem resilience and requested an acknowledgement of this
connection and clarity for whether and how the rule would incorporate
cultural values or otherwise apply to cultural resource management.
Commenters requested that the BLM consider how conservation strategies
included in the rule intersect with cultural resources. Specifically,
commenters recommended that the rule address American Indian
contributions to stewarding the landscapes that the BLM now manages as
public lands and may conserve through implementation of this rule,
including Indigenous Knowledge and practices handed down over
millennia. Commenters also recommended that lands that contain areas of
sacred and ceremonial significance to Tribes should not be eligible for
conservation leasing unless the purpose of the lease is directly
related to those resources.
The BLM is committed to working with Tribes in the management of
the public lands, which are the ancestral homelands of American Indian
and Alaska Native Tribes. The BLM recognizes Indigenous Peoples have
interacted with and stewarded the lands now managed as public lands
since time immemorial. This human presence and stewardship continue to
influence the lands addressed in the rule, including intact landscapes
and ACECs.
Cultural resources can be and often are an essential component of
functioning and productive ecosystems, and natural components of
ecosystems can also be cultural resources. Some of the BLM's most
intact and resilient ecosystems are often also locations with a high
probability of containing cultural resources. Cultural and natural
values of landscapes co-exist as reasons to protect and manage these
landscapes, emphasizing the importance of Indigenous Knowledge and co-
stewardship.
Actions and decisions aimed at restoring, maintaining, and
conserving ecosystems and landscapes may inadvertently result in
impacts to cultural resources. All such undertakings will be subject to
section 106 of the NHPA, as well as NEPA. Through the section 106
process, the BLM will, in consultation with Tribes, State and Tribal
Historic Preservation Officers, and interested parties, identify,
evaluate, and resolve any adverse effects on historic properties. Any
potential adverse effects to historic properties will be avoided,
minimized, or otherwise mitigated in accordance with law, regulation,
and policy. Effects to cultural resources that are not identified as
historic properties under the NHPA will be considered and managed
through land use plans and the NEPA process. In addition, the BLM will
strive to consider and implement the new Best Practices Guide for
Federal Agencies Regarding Tribal and Native Hawaiian Sacred Sites.\16\
---------------------------------------------------------------------------
\16\ Working Group of the Memorandum of Understanding Regarding
Interagency Coordination and Collaboration for the Protection of
Indigenous Sacred Sites (2023), https://www.bia.gov/sites/default/files/media_document/sacred_sites_guide_508_2023-1205.pdf (providing
guidance on implementation of Executive Orders 13175, 13007, and
14096, and related policies).
---------------------------------------------------------------------------
K. Mature and Old-Growth Forests
Many comments were received emphasizing the need to protect old-
growth and mature forests as part of meeting the rule's stated purpose
of supporting ecosystem resilience on public lands. Commenters
recommended adding provisions to the rule to establish emphasis areas
for old-growth and mature forests, limit or prohibit tree cutting on
BLM-managed lands, facilitate designation of old-growth forests as
ACECs, and focus on climate sustainable logging. Commenters highlighted
the scientific and social values of old-growth and mature forests and
requested explicit language in the rule to protect these valuable
ecosystems consistent with Executive Order 14072.
Executive Order 14072, Strengthening the Nation's Forests,
Communities, and Local Economies, calls for defining, identifying, and
inventorying the nation's old and mature forests and stewarding them
for future generations to provide clean air and water, sustain plant
and animal life, and respect their special importance to Tribal
Nations, consistent with applicable law. The BLM is working with the
U.S. Forest Service to implement the provisions in Executive Order
14072 related to mature and old-growth forests. In April 2023, the BLM
and U.S. Forest Service released a definition framework and initial
inventory of mature and old-growth forests on Federal lands, and the
agencies are now analyzing threats to those forests pursuant to the
Executive Order. The initial inventory identified 8.3 million acres of
old-growth and 12.7 million acres of mature forest on BLM-administered
lands, the majority of which are pinyon and juniper woodlands. Mature
and old-growth forests and woodlands contribute to ecosystem resilience
by providing wildlife habitat, clean water, carbon storage, and
landscape intactness. They also have important social and cultural
values.
The final rule facilitates conservation of BLM-managed forests and
woodlands through multiple provisions, including those related to
identification and protection of intact landscapes; conservation tools
to protect certain lands and resources through land use planning;
avoiding authorizing uses of the public lands that permanently impair
ecosystem resilience; and co-stewardship opportunities with Tribes. In
order to clarify this intent, the final rule specifically identifies
conservation of old-growth forests within the objectives of the
regulation. Because this is a procedural rule, establishing emphasis
areas or other site-specific protections for old-growth forests is
outside the scope of the rule.
L. Wild Horses and Burros
The BLM received comments on using the rule to change wild horse
and burro management on public lands. Commenters recommended
classifying wild horses and burros as a use of public lands, requiring
the BLM to show that removal of livestock could not achieve the same
objective as removal of wild horses and burros, restricting livestock
grazing to reduce methane emissions and provide more forage for wild
horses and burros, and allowing restoration and mitigation leases to be
used to protect wild horse and burro habitat.
Management of wild horses and burros is governed by the Wild Free-
Roaming Horses and Burros Act of 1971, as amended, and its implementing
regulations (43 CFR part 4700). Wild horses and burros are managed in
the
[[Page 40333]]
areas where they are found, and decisions on herd management are made
through the BLM's land use planning process. This rule does not
authorize or mandate decisions to manage wild horses and burros. The
rule does require the use of high-quality information that promotes
reasoned, fact-based agency decisions in making land use allocations
and other land use authorizations, including grazing authorizations.
Restoration and mitigation leases are narrowly defined tools for
restoring degraded landscapes or compensating for impacts of
development and are not appropriate mechanisms for protecting wild
horse and burro habitat.
M. NEPA Compliance for the Rule
A number of comments objected to the BLM's intent to rely on a
categorical exclusion to comply with NEPA and called on the BLM to
instead prepare an environmental assessment or environmental impact
statement under NEPA.
The BLM has determined that the categorical exclusion set out at 43
CFR 46.210(i) applies to this rulemaking. That provision excludes from
NEPA analysis and review actions 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.'' That categorical
exclusion applies because the rule sets out a framework but is not
self-executing in that it does not itself make substantive changes on
the ground and will not (absent future decisions that implement the
rule) restrict the BLM's discretion to undertake or authorize future
on-the-ground action; thus, the rule is administrative or procedural in
nature. Any future actions, including both land use planning and
individual project-level decisions, including decisions to issue a
restoration or mitigation lease, will be subject to the appropriate
level of NEPA review at the time of that decision. Where the BLM will
undertake such actions, which of the various tools provided in this
rule it will use when doing so, and the particular methods and
activities it will employ are unknown at this time, making the
environmental effects associated with those future actions too
speculative or conjectural to meaningfully evaluate now. The BLM has
also determined that none of the extraordinary circumstances identified
at 43 CFR 46.215 applies to this rulemaking.
N. Inventory, Assessment, and Monitoring
Public comments recommended that monitoring data and analyses
should be made public to promote transparent decision processes.
Commenters recommended emphasis on particular monitoring approaches and
discouraged use of other approaches and requested more details on the
monitoring implementation process and how it would tie to decision-
making across different types of decisions. Commenters also recommended
adding a process for monitoring prioritization.
Many commenters asked for clarification on watershed condition
classifications, renamed ``watershed condition assessments'' in the
final rule, including who would complete them and how often, what data
they would include, whether outside partners would be engaged, and how
they would tie to decision-making. Many recommended a nationally
consistent process for completing watershed condition assessments in
order to ensure that they were efficient and effective. Some asked how
watershed condition assessments would interact with and inform the BLM
land health process. Several questioned whether additional assessments
were needed.
In response to public comments, the final rule clarifies that a
focus of the rule is monitoring of infrastructure and renewable
resources. It states that inventory, monitoring, and assessment
information will be publicly available (currently, at the BLM
Geospatial Business Platform Hub, https://gbp-blm-egis.hub.arcgis.com/
), consistent with the Open Government Data Act, section 202(b). The
final rule defines watershed condition assessments and specifies that
they will be created using a consistent process and standardized data.
The final rule recommends that high-quality information, including
monitoring and watershed condition assessments, be used to inform many
different types of decisions in the rule. Further details regarding
inventory, assessment, and monitoring, including watershed condition
assessments, may be addressed in implementation guidance.
Some comments questioned whether the monitoring provisions of the
rule apply to cultural and paleontological resources. As stated in the
Authority section of the final rule, implementation of the rule will be
subject to and must be undertaken consistent with all applicable laws,
which would include the NHPA and the PRPA.
O. Economic Analysis and Compliance With the Regulatory Flexibility Act
Many commenters insisted that the Regulatory Flexibility Act (RFA)
required the BLM to prepare an initial regulatory flexibility analysis
and, by extension, that this final rule would require a final
regulatory flexibility analysis. Those commenters requested specific
documentation and details of the economic impact on small businesses
and other entities. Commenters stated that the BLM's certification that
the rule would not have a significant economic impact on a substantial
number of small entities lacked a proper factual basis.
The BLM disagrees with commenters' assertion that the RFA required
for the proposed rule and so requires for this final rule a regulatory
flexibility analysis. The BLM certified at the proposed rule stage and
certifies again in promulgating this final rule that the rule will not
have a significant economic impact on a substantial number of small
entities. Under the Small Business Administration's (SBA) Guide for
Federal Agencies to Comply with the Regulatory Flexibility Act, when
certifying that a regulatory flexibility analysis is not required, the
``certification should contain a description of the number of affected
entities and the size of the economic impacts and why either the number
of entities or the size of the impacts justifies the certification.''
Here, the BLM has undertaken an economic threshold analysis and
concluded that the magnitude of the impact on any individual or group,
including small entities, is expected to be negligible (Economic
Threshold Analysis). In support of this determination, the BLM followed
SBA's certification checklist items.
The SBA's guidelines provide, ``The RFA does not define
`significant impact' or `substantial number,' and it is the agencies'
discretion on where to set these thresholds on a rule-to-rule basis
based on their judgment.'' The BLM exercised its discretion to conclude
that an initial regulatory flexibility analysis was not required for
the proposed rule and that a final regulatory flexibility analysis is
not required now.
V. Procedural Matters
Regulatory Planning and Review (Executive Orders 12866, 13563 and
14094)
Executive Order (``E.O.'') 12866, ``Regulatory Planning and
Review,'' as supplemented and reaffirmed by E.O. 13563, ``Improving
Regulation and Regulatory Review,'' 76 FR 3821 (Jan.
[[Page 40334]]
21, 2011) and amended by E.O. 14094, ``Modernizing Regulatory Review,''
88 FR 21879 (April 11, 2023), requires agencies, to the extent
permitted by law, to (1) propose or adopt a regulation only upon a
reasoned determination that its benefits justify its costs (recognizing
that some benefits and costs are difficult to quantify); (2) tailor
regulations to impose the least burden on society, consistent with
obtaining regulatory objectives, taking into account, among other
things, and to the extent practicable, the costs of cumulative
regulations; (3) select, in choosing among alternative regulatory
approaches, those approaches that maximize net benefits (including
potential economic, environmental, public health and safety, and other
advantages; distributive impacts; and equity); (4) to the extent
feasible, specify performance objectives, rather than specifying the
behavior or manner of compliance that regulated entities must adopt;
and (5) identify and assess available alternatives to direct
regulation, including providing economic incentives to encourage the
desired behavior, such as user fees or marketable permits, or providing
information upon which choices can be made by the public. E.O. 12866,
as amended by E.O. 14094, provides that the Office of Information and
Regulatory Affairs (``OIRA'') in the Office of Management and Budget
(``OMB'') will review all significant rules. Section 6(a) of E.O. 12866
also requires agencies to submit ``significant regulatory actions'' to
OIRA for review. OIRA has determined that this final regulatory action
constitutes a ``significant regulatory action'' within the scope of
E.O. 12866.
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 rule in a manner consistent with these
requirements.
Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.)
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. 551 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 certifies that the 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. The rule does not affect any existing use of
public lands, nor does it impose restrictions on future use. The rule
modifies BLM decision-making processes and does not directly regulate
any industry, but it may affect industries related to environmental
restoration or mitigation activity or other sectors that rely on public
lands management. The BLM does not expect those impacts to be
significant. See the Economic Analysis, Potential Impact on Small
Entities, for more information.
Congressional Review Act (CRA)
Pursuant to subtitle E of the Small Business Regulatory Enforcement
Fairness Act of 1996 (also known as the Congressional Review Act), the
Office of Information and Regulatory Affairs has determined that this
rule does not meet the criteria set forth in 5 U.S.C. 804(2). This
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 rule would
provide to the economy. Please see the Economic Analysis for this 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 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
rule would not have adverse effects on any of these criteria.
Unfunded Mandates Reform Act (UMRA)
This 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 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 rule is not subject to those requirements of the UMRA. The
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 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 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 rule will 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 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.
The BLM received broad and general comments suggesting that E.O.
13132 requires preparation of a federalism summary impact statement
with respect to this rule. In particular, some comments raised concerns
that conservation leases (now titled
[[Page 40335]]
restoration and mitigation leases) could infringe on state and local
authority. Executive Order 13132 generally prohibits Federal agencies
from promulgating rules that might have a substantial direct effect on
states or local governments, on the relationship between Federal and
State governments, or on the distribution of power and responsibilities
among the various levels of government, without meeting certain
conditions, such as consulting with elected State and local government
officials early in the process. In particular, administrative rules may
not create substantial direct compliance costs for state or local
governments that are not otherwise required by statute and may not
expressly or impliedly preempt state law without Federal agencies
undertaking additional processes. This rule will inform the BLM's
management approach on federal land in the several states where BLM
manages public land, but nothing in the rule, including its provisions
for restoration and mitigation leasing, preempts state law or requires
state or local governments to comply with specific provisions. Nor does
the rule modify let alone reduce the role, under FLPMA, of state and
local governments in land use planning. As a result, a federalism
summary impact statement is not required.
Civil Justice Reform (E.O 12988)
This rule complies with the requirements of E.O. 12988.
Specifically, this 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 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) endeavors to maintain and
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 rule under the DOI's consultation policy and under the
criteria in E.O. 13175 and have determined that the rule has tribal
implications.
In conformance with the Secretary's policy on Tribal consultation,
the BLM sent letters to all Tribes at the beginning of the rulemaking
process informing them of the proposed rule and inviting them to engage
with BLM on their thoughts and concerns. The BLM received input from
Tribal governments, Alaska Native Corporations, and Tribal entities in
comments on the proposed rule, as well as in other meetings that
included a broader range of topics, and incorporated their input in
drafting the final rule. Consistent with the DOI's consultation policy
(52 Departmental Manual 4) and the criteria in E.O. 13175, the BLM will
continue to consult with federally recognized Indian Tribes on any
proposal that may have Tribal implications.
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 notwithstanding
any other provision of law a person is not required to respond to, a
collection of information, unless it displays a currently valid Office
of Management and Budget (OMB) control number. This rule contains
information collection requirements that are subject to review by the
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 final 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 is amending 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
restoration or mitigation lease to qualified entities for the purpose
of restoring degraded land or resources, or mitigation to offset the
impacts of other land use authorizations. The new information
collection requirements contained in the final rule are discussed
below.
New Information Collection Requirements
Sec. 6102.4(b) and (c)--Restoration and Mitigation Leasing:
Applications for restoration or mitigation leases shall be filed with
the Bureau of Land Management office having jurisdiction over the
public lands covered by the application. Applications for restoration
or mitigation leases shall include a restoration or mitigation
development plan which includes sufficient detail to enable the
authorized officer to evaluate the feasibility, impacts, benefits,
costs, threats to public health and safety, collaborative efforts, and
conformance with BLM plans, programs, and policies, including
compatibility with other uses. The development plan shall include but
not be limited to:
Results from available assessments, inventory and
monitoring efforts, or other high-quality information that identify the
current conditions of the site(s) of the proposed restoration or
mitigation action;
The desired future condition of the proposed lease area
including clear goals, objectives, and measurable performance criteria
needed to achieve the objectives;
Justification for passive restoration or mitigation if
proposed;
A description of all facilities for which authorization is
sought, including access needs and any other special types of
authorizations 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;
Justification of the total acres proposed for the
restoration or mitigation lease;
A schedule for restoration activities, if applicable; and
Information on outreach conducted or to be conducted with
existing permittees, lease holders, adjacent land managers or owners,
and other interested parties.
Sec. 6102.4(c)(4)--Restoration and Mitigation Leasing (additional
information): After review of the restoration or mitigation development
plan, the authorized officer may require the applicant to provide
additional high-quality information, if such information is necessary
for the BLM to decide whether to issue, issue with modification, or
deny the proposed lease. 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
lease activities will have the technical and financial capability to
operate, maintain, and terminate the authorized lease activities.
[[Page 40336]]
Sec. 6102.4(e)--Restoration and Mitigation Leasing/Monitoring
Plan: If approved, the lease holder shall provide a monitoring plan
that describes how the terms and conditions of the lease will be
applied, the monitoring methodology and frequency, measurable criteria,
and adaptive management triggers.
Sec. 6102.4(e)(1)--Restoration and Mitigation Leasing/Annual
Report: The lease holder shall provide a lease activity report annually
and at the end of the lease period. At a minimum, the report shall
describe:
the restoration or mitigation activities taken as of the
time of the report;
any barriers to meeting the stated purpose of the lease;
proposed steps to resolve any identified barriers; and
monitoring information and data that meet BLM methodology
requirements and data standards (see Sec. 6103.2(c)).
Sec. 6102.4.1(d)(3)--Termination and Suspension of Restoration and
Mitigation Leases: Upon determination that there is noncompliance with
the terms and conditions of a restoration or mitigation lease which
adversely affects land or public health or safety, or impacts ecosystem
resilience, 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.
Sec. 6102.4.2(a)--Bonding for Restoration and Mitigation Leases:
Prior to the commencement of surface-disturbing activities, the
authorized officer may require the restoration or mitigation lease
holder to submit a reclamation, decommission, or performance bond
conditioned upon compliance with all the terms and conditions of the
lease covered by the bond. For mitigation leases, the lease holder will
usually be required to provide letters of credit or establish an escrow
account for the full amount needed to ensure the development plan meets
all performance criteria.
Sec. 6102.5.1(d)--Mitigation--Approval of third parties as
mitigation fund holders: Sec. 6102.5.1(d) 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 formal agreement with the BLM.
Sec. 6102.5.1(e)--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.
Information Collection Changes From Proposed to Final Rule:
The BLM introduced the following information collection
requirements that were not in the proposed rule:
Restoration and Mitigation Leasing/Monitoring Plan--43 CFR
6102.4(e);
Restoration and Mitigation Leasing/Annual Report--43 CFR
6102.4(e)(1); and
Mitigation/Approval third parties as mitigation fund
holders/Annual Fiscal Reports--43 CFR 6102.5-1(e).
These ICs are necessary to provide monitoring mechanisms to help
the BLM assure that we are achieving the desired outcomes of the
restoration and mitigation plans.
The information collection requirements contained in this 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 information collection burdens for this rule
are outlined below:
----------------------------------------------------------------------------------------------------------------
Time per
Collection of information Number of response Total hours
responses (hours)
----------------------------------------------------------------------------------------------------------------
Restoration and Mitigation Leasing/Restoration or Mitigation 10 10 100
Development Plan--43 CFR 6102.4(b) and (c).....................
Restoration and Mitigation Leasing/Additional Information 43 CFR 8 25 200
6102.4(c)(5)...................................................
Restoration and Mitigation Leasing/Monitoring Plan--43 CFR 9 5 45
6102.4(e)......................................................
Restoration and Mitigation Leasing/Annual Report--43 CFR 9 2 18
6102.4(e)(1)...................................................
Termination and Suspension of Restoration and Mitigation Leases/ 1 240 240
written request to resume or suspended activity--43 CFR 6102.4-
1(d)(3)........................................................
Bonding for Restoration and Mitigation Leases--43 CFR 6102.4- 10 80 800
2(a)...........................................................
Mitigation/Approval third parties as mitigation fund holders--43 4 5 20
CFR 6102.5-1(e)................................................
Mitigation/Approval third parties as mitigation fund holders--43 4 5 20
CFR 6102.5-1(g)................................................
Mitigation/Approval third parties as mitigation fund holders/ 4 2 8
Annual Fiscal Reports--43 CFR 6102.5-1(e)......................
Mitigation/Approval third parties as mitigation fund holders/ 4 2 8
Annual Fiscal Reports--43 CFR 6102.5-1(e)......................
----------------------------------------------------------------------------------------------------------------
Information Collection Summary:
Title of Collection: Ecosystem Resilience (43 CFR part 6100).
OMB Control Number: 1004-0218.
Form Number: None.
Type of Review: New collection of information.
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; Annual.
Estimated Completion Time per Response: Varies from 5 hours to 240
hours per response, depending on activity.
Number of Respondents: 63.
Annual Responses: 63.
Annual Burden Hours: 1,459.
Annual Burden Cost: $0.
If you want to comment on the information-collection requirements
in this rule, please send your comments and suggestions on this
information-collection within 30 days of publication of this final rule
in the Federal Register
[[Page 40337]]
to OMB by going to www.reginfo.gov. Click on the link, ``Currently
under Review--Open for Public Comments.''
National Environmental Policy Act (NEPA)
This rule is excluded from review under the National Environmental
Policy Act under Department Categorical Exclusion (CX) at 43 CFR
46.210(i). 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 has documented this CX's applicability to this
action and posted it for public review here in docket BLM-2023-0001 on
regulations.gov.
Actions Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use (E.O. 13211)
Federal agencies must prepare and submit to OMB a Statement of
Energy Effects (SEE) for any 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, and is likely to have a significant adverse effect on
the supply, distribution, or use of energy; or (2) Is designated by the
Administrator of OIRA as a significant energy action. This rule is a
significant action under Executive Order 12866; however, this rule does
not affect energy supply, distribution, or use, and OIRA has not
designated it a significant energy action. Therefore, it is not a
significant energy action under E.O. 13211, and a SEE is not required.
The BLM received many comments on its determination that this rule
is not a significant energy action. Commenters stated that the proposed
rule, particularly the regulations pertaining to ACECs and the
establishment of a restoration and mitigation leasing program
(conservation leasing in the proposed rule), would displace oil and gas
production and mining for critical minerals on public lands. Commenters
also expressed concern that ACEC designation and restoration and
mitigation leases could preclude energy rights of way for transmission
lines. Commenters requested more information on how the BLM determined
that this rulemaking would not have a significant adverse effect on
energy supply, distribution, or use, and specifically requested the BLM
complete a SEE for this rulemaking.
The BLM disagrees that the rule would adversely impact the supply,
distribution, or use of energy. No part of the rule would preclude the
development or transmission of energy on or across public lands without
due consideration of multiple use and sustained yield principles
through BLM's existing decision-making processes, including the
required public engagement. Restoration and mitigation leases may not
be issued in areas where an existing and otherwise incompatible use is
occurring; thus, they would not displace existing mineral leases or
mining claims. Restoration and mitigation leases are a narrow tool
which may only be issued to restore degraded landscapes or to offset
impacts of other land use authorizations; they may not be used to
``block'' development of mineral resources on lands allocated to such
use in the governing Resource Management Plan. In many cases, these
leases will facilitate the development of energy on public lands by
providing an avenue for developers to satisfy obligations to offset the
impacts of energy development through compensatory mitigation.
The revised regulations for ACEC designation will not adversely
affect the supply, distribution or use of energy on public lands. FLPMA
has required that the BLM prioritize the designation and protection of
ACECs since 1976, and the final rule does not change that requirement
or the overall process and parameters for their designation and
management. The BLM does not expect that ACEC designations or the
potential for temporary management of proposed ACECs will increase
conflict where resources may be impacted by development proposals.
Rather, the BLM intends these provisions of the rule to provide a
proactive pathway for managing relevant and important values that
require special management attention in the limited circumstances in
which these values are identified outside of the planning process. See
Section IV, Response to Comments, part E., Areas of Critical
Environmental Concern, for more information.
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.
Authors
The principal authors of this rule are: Patricia Johnston, BLM
Division of Wildlife Conservation, Aquatics, and Environmental
Protection; Darrin King, BLM Division of Regulatory Affairs; Chandra
Little, BLM Division of Regulatory Affairs, assisted by the DOI Office
of the Solicitor.
The action taken herein is pursuant to an existing delegation of
authority.
List of Subjects in 43 CFR Part 1600
Administrative practice and procedure, Coal, Conservation,
Environmental impact statements, Environmental protection,
Intergovernmental relations, Preservation, Public lands.
This action by the Principal Deputy Assistant Secretary is taken
pursuant to an existing delegation of authority.
Steven H. Feldgus,
Deputy Assistant Secretary for Land and Minerals Management.
Accordingly, for the reasons set out in the preamble, the Bureau of
Land Management amends 43 CFR Chapter II 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. Revise 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 and prevent irreparable damage to important
historic, cultural, or scenic values; fish or wildlife resources; or
natural 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 values 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
[[Page 40338]]
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). Proposed and existing ACECs that
will be addressed by a resource management plan, plan revision, or plan
amendment will be identified in all public notices required by this
part (see, e.g., Sec. 1610.2).
(c) The authorized officer must facilitate the identification of
eligible ACECs early in the land use planning process by:
(1) Analyzing inventory, assessment, and monitoring data to
determine whether there are areas containing important historic,
cultural, or scenic values; fish or wildlife resources; natural systems
or processes; or natural hazards potentially impacting life and safety
that are eligible for designation;
(2) Reevaluating existing ACECs in order to determine if the
relevant and important values are still present and special management
attention is still necessary; and
(3) Seeking nominations for ACECs, during public scoping, from the
public, State and local governments, Indian Tribes, and other Federal
agencies (see Sec. Sec. 1610.2(c), 1602.5(b)(4) through (6)).
(d) To be designated as an ACEC, an area must meet the following
criteria:
(1) Relevance. The area contains important historic, cultural, or
scenic values; fish or wildlife resources; natural systems or
processes; or natural hazards potentially impacting life and safety.
(2) Importance. A historic, cultural, or scenic value; a fish or
wildlife resource; a natural system or process; or a natural hazard
potentially impacting life and safety has importance if it has
qualities of special worth, consequence, meaning, distinctiveness, or
cause for concern; national or more than local importance, subsistence
value, or regional contribution of a resource, value, system, or
process; or contributes to ecosystem resilience, landscape intactness,
or habitat connectivity. A natural hazard can be important if it is a
significant threat to human life and safety.
(3) Special management attention. The important historic, cultural,
or scenic values; fish or wildlife resources; natural systems or
processes; or natural hazards potentially impacting life and safety
require special management attention. ``Special management attention''
means management prescriptions that:
(i) Protect and prevent irreparable damage to the relevant and
important values, or that protect life and safety from natural hazards;
and
(ii) Would not be prescribed if the relevant and important values
were not present. In this context, ``irreparable damage'' means harm to
a value, resource, system, or process that substantially diminishes the
relevance or importance of that value, resource, system, or process in
such a way that recovery of the value, resource, system, or process to
the extent necessary to restore its prior relevance or importance is
impossible.
(e) The authorized officer may designate an ACEC research natural
area if the area:
(1) Meets all of the criteria identified in Sec. 1610.7-2(d)(1)
through (3); and
(2) Is consistent with one or more of the primary purposes found at
Sec. 8223.0-5 of this chapter. A designated ACEC research natural area
will be subject to the use restrictions at Sec. 8223.1 of this title
in addition to the special management attention prescribed by the
authorized officer through land use planning.
(f) The boundaries of proposed ACECs shall be identified for public
lands, as appropriate, to encompass the relevant and important values
and geographic extent of the special management attention needed to
provide protection.
(g) During a planning process, the planning documents must analyze
in detail any proposed ACEC that has relevant and important values.
Where the BLM has received ACEC proposals that do not have relevant and
important values, the agency is not required to review those proposals
in detail in planning documents. Through land use planning, the BLM
will evaluate the need for special management attention to protect the
relevant and important values, which could include other allocations
and designations being considered, in order to provide for informed
decision-making on the trade-offs associated with ACEC designation.
(h) The approved resource management plan, plan revision, or plan
amendment shall list all designated ACECs, identify their relevant and
important values, and include the special management attention,
including management prescriptions for other uses, identified for each
designated ACEC.
(i) ACEC nominations typically should be evaluated during a
planning process. If a nomination for an ACEC is received outside of
the planning process, the following provisions apply.
(1) The State Director will evaluate whether the relevant,
important, and special management criteria identified in paragraph (d)
of this section are met. The State Director will determine the
appropriate time to complete this analysis. If the criteria identified
in paragraph (d) of this section are met, then the State Director
shall, at their discretion, either:
(i) Initiate a land use planning process; or
(ii) Provide temporary management consistent with the applicable
resource management plan to protect the relevant and important values
from irreparable damage. Any temporary management that is implemented
would be in effect until the BLM either completes a land use planning
process to determine whether to designate the area as an ACEC or,
through periodic evaluation, finds designation is no longer necessary.
The BLM will publish a public notice if temporary management is
implemented.
(2) The State Director may defer evaluating the nomination to an
upcoming planning process.
(j) The State Director shall:
(1) Determine which ACECs to designate based on:
(i) The presumption that all areas found to require special
management attention will be designated;
(ii) The value of other resource uses in the area;
(iii) The feasibility of managing the designation; and
(iv) The relationship to other types of designations and protective
management available.
(2) In the decision document for the resource management plan or
plan amendment, provide a justification and rationale for both ACEC
designation decisions and decisions not to designate a proposed ACEC.
(3) Administer designated ACECs in a manner that conserves,
protects, and enhances the relevant and important values and only allow
casual use or uses that will ensure the protection of the relevant and
important values. This paragraph (j)(3) does not apply to those ACECs
designated for natural hazards potentially impacting life and safety.
(4) Prioritize acquisition of inholdings within ACECs and adjacent
or connecting lands identified as holding relevant and important values
related to the designated ACEC.
(k) 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 relevant and important values
are no longer present, cannot be recovered, or
[[Page 40339]]
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.
(l) As used in this section, the terms casual use, conservation,
ecosystem resilience, intactness, landscape, monitoring, protection,
and restoration have the same meanings as in Sec. 6101.4 of this
chapter.
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 Landscape Intactness.
6102.2 Management to Protect Intact Landscapes.
6102.3 Restoration.
6102.3.1 Restoration Prioritization and Planning.
6102.4 Restoration and Mitigation Leasing.
6102.4.1 Termination and Suspension of Restoration and Mitigation
Leases.
6102.4.2 Bonding for Restoration and Mitigation Leases.
6102.5 Management Actions for Ecosystem Resilience.
6102.5.1 Mitigation.
Subpart 6103--Managing Land Health to Achieve Ecosystem Resilience
Sec.
6103.1 Land Health Standards.
6103.1.1 Management for Land Health.
6103.1.2 Land Health Evaluations and Determinations.
6103.2 Inventory, Assessment and Monitoring.
Authority: 16 U.S.C. 7202; 43 U.S.C. 1701 et seq.
PART 6100--ECOSYSTEM RESILIENCE
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 and prevent permanent
impairment or unnecessary or undue degradation of public lands. This
part discusses the use of protection and restoration actions, as well
as tools such as watershed condition assessments, land health
evaluations, inventory, assessment, and monitoring.
Sec. 6101.2 Objectives.
The objectives of this part 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 maintaining, protecting, and restoring
ecosystem resilience and intact landscapes, including habitat
connectivity and old-growth forests;
(c) Integrate the fundamentals of land health and related standards
and guidelines into resource management for all uses and activities on
BLM-managed lands;
(d) Incorporate inventory, assessment, and monitoring principles
into decision-making and use this information to identify trends and
implement adaptive management strategies;
(e) Accelerate restoration and improvement of degraded public
lands, air, and waters to properly functioning and desired conditions;
(f) Manage for ecosystems and their components to adapt, 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;
(g) Provide for healthy lands and waters that support sustainable
outdoor recreation experiences for current and future generations;
(h) Prevent permanent impairment or unnecessary or undue
degradation of public lands;
(i) Improve engagement and co-stewardship of public lands with
Tribal entities and promote the use of Indigenous Knowledge in
decision-making; and
(j) Advance environmental justice through restoration and
mitigation actions.
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). Implementation of this part is subject to all
applicable law.
Sec. 6101.4 Definitions.
As used in this part, the term:
(a) 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 any such activity.
(b) Conservation means the management of natural resources to
promote protection and restoration. Conservation actions are effective
at building resilient lands and are designed to reach desired future
conditions through protection, restoration, and other types of
planning, permitting, and program decision-making.
(c) Disturbance means changes in environmental conditions, either
discrete or chronic. Disturbances may be viewed as ``characteristic''
when ecosystems and/or species have evolved to survive, exploit, and
even depend on a disturbance or ``uncharacteristic'' when attributes of
the disturbance (e.g., type, timing, frequency, magnitude, duration)
are outside prevailing background conditions. Disturbances may be
natural or human-caused.
(d) Ecosystem resilience means the capacity of ecosystems (e.g.,
old-growth forests and woodlands, sagebrush core areas) to maintain or
regain their fundamental composition, structure, and function
(including maintaining habitat connectivity and providing ecosystem
services) when affected by disturbances such as drought, wildfire, and
nonnative invasive species.
(e) Effects means the direct, indirect, and cumulative impacts, as
defined in 40 CFR 1508.1(g), from a public land use. Effects and
impacts as used in these regulations are synonymous.
(f) High-quality information means information that promotes
reasoned, evidence-based agency decisions. Information that meets the
standards for objectivity, utility, and integrity as set forth in the
Department's Information Quality Guidelines \17\ qualifies as high-
quality information. Indigenous Knowledge qualifies as high-quality
information when it is gained by prior, informed consent free of
coercion, and generally meets the standards for high-quality
information.
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\17\ U.S. Department of the Interior, Information Quality
Guidelines, https://www.doi.gov/ocio/policy-mgmt-support/information-quality-guidelines.
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(g) 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.
[[Page 40340]]
(3) ``Sensitive resources'' means resources that are delicate and
vulnerable to adverse change, such as resources that lack resilience to
changing circumstances.
(h) Indigenous Knowledge means a body of observations, oral and
written knowledge, innovations, technologies, practices, and beliefs
developed by Indigenous Peoples through interaction and experience with
the environment. Indigenous Knowledge is applied to phenomena across
biological, physical, social, cultural, and spiritual systems.
Indigenous Knowledge can be developed over millennia, continue to
develop, and include 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. Indigenous Knowledge is developed, held, and stewarded
by Indigenous Peoples and is often intrinsic within Indigenous legal
traditions, including customary law or traditional governance
structures and decision-making processes. Other terms, such as
Traditional Knowledge, Traditional Ecological Knowledge, Genetic
Resources associated with Traditional Knowledge, Traditional Cultural
Expression, Tribal Ecological Knowledge, Native Science, Indigenous
Applied Science, Indigenous Science, and others, are sometimes used to
describe this knowledge system.
(i) In-lieu fee program means a program involving the restoration,
establishment, and/or enhancement and protection of resources at
specific sites through funds paid to a local or State government
agency, non-profit organization that qualifies for tax-exempt status in
accordance with Internal Revenue Code (IRC) section 501(c)(3), or
Tribal organization to satisfy compensatory mitigation requirements for
adverse impacts resulting from BLM-authorized public land uses.
Collected funds are pooled and expended on projects that provide
compensatory mitigation for the same types of resource impacts. Similar
to a mitigation bank, an in-lieu fee program sells mitigation credits
to permittees whose obligation to provide compensatory mitigation is
then transferred to the in-lieu program sponsor.
(j) Intact landscape means a relatively unfragmented landscape free
of local conditions that could permanently or significantly disrupt,
impair, or degrade the landscape's composition, structure, or function.
Intact landscapes are large enough to maintain native biological
diversity, including viable populations of wide-ranging species. Intact
landscapes provide critical ecosystem services and are resilient to
disturbance and environmental change and thus may be prioritized for
conservation action. For example, an intact landscape would have
minimal fragmentation from roads, fences, and dams; low densities of
agricultural, urban, and industrial development; and minimal pollution
levels.
(k) Intactness means a measure of the degree to which human
influences, which can include invasive species and unnatural wildfire,
alter or impair the structure, function, or composition of a landscape.
Areas experiencing a natural fire regime can be intact.
(l) Land health means the degree to which the integrity of the
soil, water, and ecological processes sustain habitat quality and
ecosystem functions.
(m) Landscape means an area that is spatially heterogeneous in at
least one factor of interest which may include 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. Landscapes may be defined in terms
of aquatic conditions, such as watersheds, or terrestrial conditions,
such as ecoregions.
(n) 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.
(o) Mitigation bank means a site, or suite of sites, where
resources are restored, established, enhanced, or protected for the
purpose of providing compensatory mitigation for impacts to the same
types of resources from BLM-authorized public land uses. In general,
the sponsor of a mitigation bank sells mitigation credits to permittees
whose obligation to provide compensatory mitigation is then transferred
to the mitigation bank sponsor.
(p) Mitigation fund means an account established by a mitigation
fund holder through a written agreement with the BLM. Permittees with
compensatory mitigation requirements may deposit funds with the fund
holder, when approved to do so by the BLM. Funds are then expended by
the fund holder on projects that mitigate for the same types of
resources that were impacted as a result of BLM-authorized land uses.
(q) 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.
(r) ``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.
(s) Permittee means any person or other legal entity that has a
valid permit, right-of-way grant, lease, or other BLM land use
authorization.
(t) Protection means the act or process of conservation by
maintaining the existence of resources while preventing degradation,
damage, or destruction. Protection is not synonymous with preservation
and allows for active management or other uses consistent with multiple
use and sustained yield principles.
(u) Public lands means any surface estate or interests in the
surface estate 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.
(v) 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 toxic or deleterious
substances;
(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.
[[Page 40341]]
(w) Restoration means the process or act of conservation by
passively or actively assisting the recovery of an ecosystem that has
been degraded, damaged, or destroyed to a more natural, native
ecological state.
(x) Significant causal factor means a use, activity, or disturbance
that prevents an area from achieving or making significant progress
toward achieving one or more land health standards. To be a significant
factor, a use may be one of several causal factors in contributing to
less-than-healthy conditions; it need not be the sole causal factor
inhibiting progress toward the standards.
(y) Significant progress means measurable or observable changes in
the indicators that demonstrate improved land health. Acceptable levels
of change must be realistic in terms of the capability of the resource
but must also be as expeditious and effective as practical.
(z) 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 consistent with
multiple use and without permanent impairment of the productivity of
the land. Preventing permanent impairment means that renewable
resources are not permanently depleted and that desired future
conditions are met for future generations. Ecosystem resilience is
essential to the BLM's ability to manage for sustained yield.
(aa) Unnecessary or undue degradation means harm to resources or
values that is not necessary to accomplish a use's stated goals or is
excessive or disproportionate to the proposed action or an existing
disturbance. Unnecessary or undue degradation includes two distinct
elements: ``Unnecessary degradation'' means harm to land resources or
values that is not needed to accomplish a use's stated goals. For
example, approving a proposed access road causing damage to critical
habitat for a plant listed as endangered under the Endangered Species
Act that could be located without any such impacts and still provide
the needed access may result in unnecessary degradation. ``Undue
degradation'' means harm to land resources or values that is excessive
or disproportionate to the proposed action or an existing disturbance.
For example, approving a proposed access road causing damage to the
only remaining critical habitat for a plant listed as endangered under
the Endangered Species Act, even if there is not another location for
the road, may result in undue degradation. The statutory obligation to
prevent ``unnecessary or undue degradation'' applies when either
unnecessary degradation or undue degradation, and not necessarily both,
is implicated.
(bb) Watershed condition assessment means a process for assessing
and synthesizing information on the condition of soil, water, habitats,
and ecological processes within watersheds relative to the BLM's land
health fundamentals. A watershed condition assessment may include
assessment of one or more of watershed physical and biological
characteristics, landscape intactness, and disturbances.
Sec. 6101.5 Principles for Ecosystem Resilience.
(a) Except where otherwise provided by law, public lands must be
managed under the principles of multiple use and sustained yield.
(b) 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
archeological 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.
(c) The BLM must conserve renewable natural resources at a level
that maintains or improves future resource availability and ecosystem
resilience, in a manner consistent with multiple use and sustained
yield.
(d) Authorized officers must implement the foregoing principles
through:
(1) Conservation as a land use within the multiple use framework,
including in decision-making, 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, including habitat connectivity and old-growth forests;
(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 Landscape Intactness.
(a) The BLM must manage certain landscapes to protect their
intactness, including habitat connectivity and old-growth forests. This
requires:
(1) Maintaining ecosystem resilience and habitat connectivity
through conservation actions;
(2) Conserving landscape intactness when managing compatible uses,
especially where development or fragmentation that could permanently
impair ecosystem resilience has the potential to occur 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; and
(5) Pursuing management actions that maintain or mimic
characteristic disturbance, or mimic natural disturbance, when
maintaining it is not possible.
(b) Authorized officers will seek to prioritize actions that
conserve and protect landscape intactness in accordance with Sec.
6101.2.
Sec. 6102.2 Management to Protect Intact Landscapes.
(a) The BLM will maintain an inventory of landscape intactness as a
resource value using watershed condition assessments (see Sec.
6103.2(a)) to establish a consistent baseline condition.
(b) When updating a resource management plan under part 1600 of
this chapter, the BLM will use a baseline condition of intactness and
available high-quality information about landscape intactness, such as
watershed condition assessments, environmental disturbances, and
monitoring (see Sec. 6103.2), to:
(1) Identify and delineate boundaries for intact landscapes within
the planning area, taking into consideration habitat connectivity and
migration corridor data;
(2) Evaluate alternatives to protect intact landscapes or portions
of the intact landscapes from activities that would permanently or
significantly disrupt, impair, or degrade the ecosystem's structure or
functionality of the intact landscapes; and
(3) Identify which intact landscapes or portions of intact
landscapes will be managed for protection consistent with
[[Page 40342]]
the principles enumerated in Sec. 6102.1(a).
(c) The BLM will identify desired conditions and landscape
objectives to guide implementation of decisions regarding management of
intact landscapes, habitat connectivity, and old-growth forests. As
part of carrying out paragraph (b) of this section, the BLM will seek
to:
(1) Establish partnerships to work across Federal and non-Federal
lands to promote and protect intact landscapes;
(2) 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
and habitat connectivity;
(3) Consult with Tribes to identify opportunities for co-
stewardship to protect intact landscapes (see Sec. 6102.5(b)(4)
through (6)); and
(4) Use high-quality information including standardized
quantitative monitoring to evaluate the effectiveness of management
actions for ecosystem resilience (see Sec. 6103.2).
(d) 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.
(e) Authorized officers must collect and track landscape intactness
data to support minimizing surface disturbance and inform conservation
actions. This information must be included in a publicly available
national tracking system.
Sec. 6102.3 Restoration.
(a) The BLM must emphasize restoration on the public lands to
achieve 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 causes of degradation, the recovery potential of the ecosystem, and
the allowable uses in the governing land use plan, such as whether an
area is managed for recreation or is degraded land prioritized for
development. The BLM must then develop commensurate restoration goals
and objectives (see Sec. 6103.1.1).
(c) The BLM should employ management actions to promote
restoration. Over the long-term, restoration actions must be durable,
self-sustaining, and expected to persist in a manner that supports land
health and ecosystem resilience.
(d) When designing and implementing restoration actions on public
lands, including authorizing restoration leases, authorized officers
must adhere to the following principles:
(1) Ensure that restoration actions address causes of degradation,
focus on process-based solutions, and where possible maintain
attributes and resource values associated with the potential or
capability of the ecosystem;
(2) Ensure that actions are designed, implemented, and monitored at
appropriate spatial and temporal scales using suitable treatments and
tools to achieve desired outcomes;
(3) Coordinate and implement actions across BLM programs, with
partners, and in consideration of existing uses to develop holistic
restoration actions;
(4) Ensure incorporation of locally appropriate best management
practices, high-quality information, and adaptive management that
supports restoration;
(5) Identify opportunities to implement nature-based or low-tech
restoration activities and use seed from native plants; and
(6) Consult with Tribes to identify opportunities for co-
stewardship or collaboration (see Sec. 6102.5(b)(4) through (6)).
Sec. 6102.3.1 Restoration Prioritization and Planning.
(a) Authorized officers must identify measurable and quantifiable
restoration outcomes consistent with the restoration principles
enumerated in Sec. 6102.3 in all resource management plans.
(b) Authorized officers will, at least every 5 years, identify
priority landscapes for restoration consistent with resource management
plan objectives and the restoration principles enumerated in Sec.
6102.3. In doing so, authorized officers must consider:
(1) Current conditions and causes of degradation as indicated by
watershed condition assessments, existing land health assessments,
evaluations, and determinations, and other high-quality information
(see Sec. 6103.2);
(2) The likelihood of success of restoration activities to achieve
resource or conservation objectives including ecosystem resilience;
(3) Where restoration actions may have the most social and economic
benefits or work to address environmental justice, including impacts on
communities with environmental justice concerns; and
(4) Where restoration or mitigation can minimize or offset
unnecessary or undue degradation, such as ecosystem conversion,
fragmentation, habitat loss, or other negative outcomes that
permanently impair ecosystem resilience.
(c) For priority landscapes identified in accordance with this
subpart, authorized officers must periodically, and at least every 5
years, develop or amend restoration plans consistent with resource
management plan objectives in accordance with part 1600 of this
chapter. Each restoration plan must include goals, objectives, and
management actions that are:
(1) Consistent with the restoration principles enumerated in Sec.
6102.3;
(2) Commensurate with recovery potential;
(3) Evaluated against measurable objectives, including to
facilitate adaptive management to achieve outcomes supporting ecosystem
resilience (see subpart 6103);
(4) Developed consistent with scientifically accepted standards and
principles for restoration; and
(5) Consistent with statewide and regional needs as identified in
the assessment of priority landscapes for restoration as identified in
this subpart.
(d) Authorized officers must track restoration implementation and
progress toward achieving goals at appropriate temporal scales. If
restoration goals are not met, authorized officers must assess why
restoration outcomes are not being achieved and what, if any,
additional resources or changes to management are needed to achieve
restoration goals.
Sec. 6102.4 Restoration and Mitigation Leasing.
(a) The BLM may authorize restoration leases or mitigation leases
under such terms and conditions as the authorized officer determines
are appropriate for the purpose of restoring degraded landscapes or
mitigating impacts of other uses.
(1) Restoration or mitigation leases on the public lands may be
authorized for the following purposes:
(i) Restoration of land and resources by passively or actively
assisting the recovery of an ecosystem that has been degraded, damaged,
or destroyed to a more natural, resilient ecological state; and
(ii) Mitigation to offset impacts to resources resulting from other
land use authorizations.
(2) Authorized officers may issue restoration or mitigation leases
to any qualified entity that can demonstrate capacity for implementing
restoration or mitigation projects (as appropriate) and meets the lease
requirements. Consistent with the lease adjudication practices
established in 43 CFR 2920, qualified entities for restoration or
mitigation
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leases may be individuals, businesses, non-governmental organizations,
Tribal governments, conservation districts, or State fish and wildlife
agencies. Qualified entities for a mitigation lease to establish an in-
lieu fee program are limited to non-governmental organizations, State
fish and wildlife agencies, and Tribal government organizations.
Restoration and mitigation leases may not be held by a foreign person
as that term is defined in 31 CFR 802.221.
(3) Restoration or mitigation leases shall be issued for a term
consistent with the time required to achieve their objective.
(i) A lease issued for purposes of restoration may be issued for a
maximum term of 10 years, and all activities taken under the lease
shall be reviewed mid-term for consistency with the lease provisions.
(ii) A lease issued for purposes of mitigation shall be issued for
a term commensurate with the impact it is mitigating, and all
activities taken under the lease reviewed every 5 years for consistency
with the lease provisions.
(iii) Authorized officers may renew a restoration or mitigation
lease if necessary to serve the purpose for which the lease was first
issued, provided that the lease holder is in compliance with the terms
and conditions of the lease and renewal is consistent with applicable
law. Such renewal 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 lease, the BLM shall not issue new authorizations to
use the leased lands if the use would be incompatible with the
authorized restoration or mitigation use.
(5) No land use authorization is required under the regulations in
this part for casual use of the public lands covered by a restoration
or mitigation lease.
(b) The application process for a restoration or mitigation lease
and for renewal of such a lease is as follows:
(1) An application for a restoration or mitigation lease must be
filed using an approved application form with the Bureau of Land
Management office having jurisdiction over the public lands covered by
the application.
(2) The filing of an application gives the applicant no right to
use the public lands.
(3) Acceptance of an application or approval of a lease is not
guaranteed and is at the discretion of the authorized officer.
(4) Actions that pertain to or address geographic areas or resource
conditions previously identified as needing restoration by the BLM
through watershed condition assessments and existing land health
assessments, land health evaluations, an existing restoration plan, a
mitigation strategy, or high-quality inventory, assessment, and
monitoring information shall be given priority for consideration (see
subpart 6103).
(c) An application for a restoration or mitigation lease must
comply with the following requirements:
(1) An application must include a restoration or mitigation
development plan that describes the proposed restoration or mitigation
use in sufficient detail to enable authorized officers to evaluate the
feasibility, impacts, benefits, costs, threats to public health and
safety, collaborative efforts, and conformance with BLM plans,
programs, and policies, including compatibility with other uses.
(2) The development plan shall include, but not be limited to:
(i) Results from available assessments, inventory and monitoring
efforts, or other high-quality information (see subpart 6103) that
identify the current conditions of the site(s) of the proposed
restoration or mitigation action;
(ii) The desired future condition of the proposed lease area
including clear goals, objectives, and measurable performance criteria
needed to determine progress toward achieving the objectives;
(iii) Justification for passive restoration or mitigation if
proposed;
(iv) A description of all facilities for which authorization is
sought, including access needs and any other special types of
authorizations that may be needed;
(v) 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;
(vi) Justification of the total acres proposed for the restoration
or mitigation lease;
(vii) A schedule for restoration activities if applicable; and
(viii) Information on outreach already conducted or to be conducted
with existing permittees, lease holders, adjacent land managers or
owners, and other interested parties.
(3) Restoration lease development plans must be consistent with
Sec. 6102.3 and mitigation lease development plans must be consistent
with Sec. 6102.5.1.
(4) Applicants must submit the following additional information,
upon request of the authorized officer:
(i) Additional high-quality information, if such information is
necessary for the BLM to decide whether to issue, issue with
modification, or deny the proposed lease;
(ii) Documentation of or proof of application for any required
private, State, local, or other Federal agency licenses, permits,
easements, certificates, or other approvals; and
(iii) Evidence that the applicant has, or will have prior to
commencement of lease activities, the technical and financial
capability to operate, maintain, and terminate the authorized lease
activities.
(d) When reviewing restoration and mitigation lease applications,
authorized officers will consider the following factors, along with
other applicable legal requirements, which will make lease issuance
more likely:
(1) Lease outcomes that are consistent with the restoration
principles in Sec. 6102.3(d);
(2) Desired future conditions that are consistent with the
management objectives and allowable uses in the governing land use
plan, such as an area managed for recreation or prioritized for
development;
(3) Collaboration with existing permittees, leaseholders, and
adjacent land managers or owners;
(4) Outreach to or support from local communities; or
(5) Consideration of environmental justice objectives.
(e) If approved, the leaseholder shall provide a monitoring plan
that describes how the terms and conditions of the lease will be
applied, the monitoring methodology and frequency, measurable criteria,
and adaptive management triggers.
(1) The lease holder shall provide a lease activity report annually
and at the end of the lease period. At a minimum, the report shall
specify:
(i) The restoration or mitigation activities taken as of the time
of the report;
(ii) Any barriers to meeting the stated purpose of the lease;
(iii) Proposed steps to resolve any identified barriers; and
(iv) Monitoring information and data that meet BLM methodology
requirements and data standards (see Sec. 6103.2(d)).
(2) Additional requirements for development plans and monitoring
plans for mitigation leases are provided in Sec. 6102.5.1.
(f) An approved lease does not convey exclusive rights to use the
public lands to the lease holder The authorized officer retains the
discretion to determine compatibility of the renewal of existing
authorizations and future land use proposals on lands subject to
restoration or mitigation leases.
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(g) A restoration or mitigation lease will not preclude access to
or across leased areas for casual use, recreation use, research use, or
other use taken pursuant to a land use authorization that is compatible
with the approved restoration or mitigation use.
(h) Existing access that accommodates accessibility under section
504 of the Rehabilitation Act shall remain after a lease has been
issued.
(i) A restoration or mitigation lease may only be amended,
assigned, or transferred with the written approval of the authorized
officer, and no amendment, assignment, or transfer shall be effective
until the BLM has approved it in writing. Authorized officers may
authorize assignment or transfer of a restoration or mitigation 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.
(j) Administrative cost recovery, rents, and fees for restoration
and mitigation leases will be governed by the provisions of 43 CFR
2920.6 and 2920.8, provided that the BLM may waive or reduce
administrative cost recovery, fees, and rent of a restoration lease if
the restoration lease is not used to generate revenue or satisfy the
requirements of a mitigation program (e.g., selling credits in an
established market), and the restoration lease will enhance ecological
or cultural resources or provide a benefit to the general public.
Sec. 6102.4.1 Termination and Suspension of Restoration and
Mitigation Leases.
(a) If a restoration or mitigation lease provides by its terms that
it shall terminate on the occurrence of a fixed or agreed-upon event,
the restoration or mitigation lease shall automatically terminate by
operation of law upon the occurrence of such event.
(b) A restoration or mitigation lease may be terminated by mutual
written agreement between the authorized officer and the lease holder.
(c) Authorized officers have discretion to suspend or terminate
restoration or mitigation 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 lease;
(3) Failure of the holder to use the 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 lease and that such noncompliance
adversely affects or poses a threat to land or public health or safety,
or impacts ecosystem resilience, the authorized officer shall issue an
immediate temporary suspension.
(1) The authorized officer 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 such holder,
contractor, or subcontractor, and the suspended activity shall cease at
that time. As soon as practicable, the authorized officer shall confirm
the order by a written notice to the holder addressed to the holder or
the holder's designated agent. The authorized officer may also take
such action that the authorized officer considers necessary to address
the adverse effects or threat to land or public health or safety or
impacts to ecosystem resilience.
(2) The authorized officer may order immediate temporary suspension
of an activity independent 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 the authorized officer a request for
permission to resume activities authorized by the lease. The request
shall be in writing and shall contain a statement of the facts
supporting the request. The authorized officer 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) The authorized officer may render an order to either grant or
deny the request to resume within 30 working days of the date the
request is filed. If the authorized officer does not render an order on
the request within 30 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
lease, the authorized officer 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 restoration or mitigation lease, if grounds for suspension or
termination still exist after a reasonable time, the authorized officer
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 43 CFR part 4. The authorized officer shall
suspend or revoke the restoration or mitigation 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
they determine that the grounds for such suspension no longer exist.
(4) Upon termination of a restoration or mitigation lease, the
holder shall, for 60 days after the notice of termination, retain
authorization to use the associated public lands solely for the
purposes of reclaiming the site to its pre-use conditions consistent
with achieving land health fundamentals, unless otherwise agreed upon
in writing or in the lease terms. If the holder fails to reclaim the
site consistent with the requirements of the 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 Restoration and Mitigation Leases.
(a) Bonding obligations. (1) Prior to the commencement of surface-
disturbing or active management activities, the authorized officer may
require the restoration or mitigation lease holder to submit a
reclamation, decommission, or performance bond conditioned upon
compliance with all the terms and conditions of the lease covered by
the bond, as described in this subpart. For mitigation leases, the
lease holder will usually be required to provide letters of credit or
establish an escrow account for the full amount needed to ensure the
development plan meets all performance criteria. The bond amounts shall
be sufficient to ensure reclamation of the restoration and mitigation
lease area(s) and the restoration of any lands or surface waters
adversely affected by restoration or mitigation lease operations. Such
restoration may be required after the abandonment or cessation of
operations by the restoration or mitigation lease holder in accordance
with, but not limited to, the standards and requirements set forth by
authorized officers.
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(2) Considerations for requiring a bond include, but are not
limited to:
(i) The type and level of active restoration;
(ii) Amount and type of surface disturbing activity;
(iii) Proposed use of non-natural restoration methods, such as the
use of pesticides;
(iv) Proposed use of experimental methods of restoration;
(v) Risk of compounding effects resulting from restoration
activities, such as a proliferation of invasive species; and
(vi) Fire risk.
(3) Surety bonds shall be issued by qualified surety companies
certified by the Department of the Treasury.
(4) 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) In lieu of bonds for each individual restoration or mitigation
lease, holders may furnish a bond covering all restoration or
mitigation 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 restoration or mitigation lease area(s) and the
restoration of any lands or surface waters adversely affected by
restoration or mitigation lease operations in the State.
(c) 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 restoration or
mitigation lease 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 restoration or mitigation
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 restoration or mitigation leases 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 (see Sec. Sec. 6102.2 and
6102.3.1);
(2) Develop and implement plans and strategies, including
protection, restoration, and mitigation strategies that effectively
manage public lands to protect and promote resilient ecosystems (see
Sec. Sec. 6102.1, 6102.3.1, 6102.5.1, 6103.1.2);
(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 disturbances (see Sec. 6103.2);
(4) Report annually on the results of land health evaluations, and
determinations (see Sec. 6103.1.2);
(5) Ensure that watershed condition assessments incorporate
consistent analytical approaches (see Sec. 6103.2) both among
neighboring BLM State Offices and with the fundamentals of land health;
and
(6) Share watershed condition assessments in a publicly available
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 and resource management plans, such as where an area is managed for
recreation or is degraded land prioritized for development, authorized
officers must:
(1) Make every effort to avoid authorizing uses of the public lands
that permanently impair ecosystem resilience;
(2) Promote opportunities to support conservation and other actions
that work toward achieving land health standards and ecosystem
resilience;
(3) Issue decisions that promote the ability of ecosystems to
passively recover or the BLM's ability to actively restore ecosystem
composition, structure, and function;
(4) Meaningfully consult with Indian Tribes and Alaska Native
Corporations during the decision-making process on actions that are
determined, after allowing for Tribal input, to potentially have a
substantial 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 Indigenous Knowledge, by:
(i) Improving engagement and expanding co-stewardship of public
lands with Tribal entities;
(ii) 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
(iii) Communicating to Tribes in a timely manner and in an
appropriate format how their Indigenous Knowledge was included in
decision-making, including addressing management of sensitive
information;
(7) Seek opportunities to restore or protect ecosystem resilience
when the effects of potential uses are unknown; and
(8) Provide justification for decisions that may impair ecosystem
resilience.
(c) Authorized officers must use high-quality inventory,
assessment, and monitoring data, as available and appropriate, to
evaluate resource conditions and inform decision-making across program
areas (see Sec. 6103.2(c)), specifically by:
(1) Identifying clear goals or desired outcomes relevant to the
management decision;
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(2) Gathering high-quality information relevant to the management
decision, including standardized quantitative monitoring data and data
about land health;
(3) Selecting relevant indicators for each applicable management
question (e.g., land health standards, restoration effectiveness,
assessments of intactness);
(4) Establishing a framework for translating indicator values to
condition categories (such as quantitative monitoring objectives or
science-based conceptual models); and
(5) Summarizing results and ensuring that a clear and
understandable rationale is documented, explaining how the data were
used to make the decision.
Sec. 6102.5.1 Mitigation.
(a) The BLM will apply the mitigation hierarchy to avoid, minimize,
and compensate, as appropriate, for adverse impacts to resources when
authorizing uses of public lands. As appropriate, the authorized
officer may identify specific mitigation approaches or requirements to
address resource impacts through land use plans or in other decision
documents.
(b) For important, scarce, or sensitive resources, authorized
officers shall apply the mitigation hierarchy with particular care,
with the goal of eliminating, reducing, and/or offsetting impact on the
resource, consistent with applicable law.
(c) When implementing the mitigation hierarchy, including
authorizing mitigation leases, the BLM will:
(1) Use a landscape-scale approach to develop and implement
mitigation strategies that identify mitigation needs and opportunities
in a geographic area, including opportunities for the siting of large,
market-based mitigation programs or projects (e.g., mitigation banks)
on public lands;
(2) Use high-quality information to inform the identification and
analysis of adverse impacts, to determine appropriate mitigation
programs or projects for those impacts, and to achieve appropriate and
effective mitigation outcomes;
(3) Require identification of performance criteria for mitigation
programs or projects, effectiveness monitoring of those performance
criteria, and reports that assess the achievement of those performance
criteria;
(4) Use adaptive management principles to guide and improve
mitigation outcomes; and
(5) Ensure that any compensatory mitigation programs or projects
are commensurate with the applicable adverse impacts and that the
required compensatory mitigation programs and projects are durable,
additional, and timely.
(6) As used in this section, the terms additional, commensurate,
durable, and timely have the following definitions:
(i) Additional means the compensatory mitigation program or
project's benefit is demonstrably new and would not have occurred
without the compensatory mitigation measure.
(ii) Commensurate means the compensatory mitigation program or
project is reasonably related and proportional to the adverse impact
from authorizing uses of public lands.
(iii) Durable means the maintenance of the effectiveness of a
mitigation program or project, including resource, administrative, and
financial considerations.
(iv) Timely means the lack of a time lag between the impact to the
resources and the achievement of the outcomes of the associated
compensatory mitigation.
(d) The BLM may approve, through a formal agreement, a third-party
mitigation fund holder to administer funds for the implementation of
compensatory mitigation programs or projects. A BLM-approved third-
party mitigation fund holder may:
(1) Collect mitigation funds from permittees;
(2) Manage funds in accordance with agency decision documents, use
authorizations and applicable law; and
(3) Disperse those funds in accordance with agency decision
documents, use authorizations, and applicable law.
(e) Approved third-party mitigation fund holders must file with the
BLM annual fiscal reports. To qualify as a third-party mitigation fund
holder, the entity must either:
(1) Qualify for tax-exempt status in accordance with Internal
Revenue Code section 501(c)(3); provide evidence that they can
successfully hold and manage mitigation accounts; be a public charity
bureau for the State in which the mitigation area is located, or
otherwise comply with applicable State laws; be a third party
organizationally separate from and having no corporate or family
connection to the entity accomplishing the mitigation program or
project, BLM employees, or the permittee; adhere to generally accepted
accounting practices that are promulgated by the Financial Accounting
Standards Board, or any successor entity; and have the capability to
hold, invest, and manage the mitigation funds to the extent allowed by
law; or
(2) Be a State or local government agency, if the government agency
is able to demonstrate, to the satisfaction of the BLM, that:
(i) 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
collect the funds, protect the account from being used for purposes
other than the management of the mitigation project or site, and
disburse the funds to the entities conducting the mitigation project or
management of the mitigation site;
(ii) it is organizationally separate from and has no corporate or
family connection to the entity accomplishing the mitigation program or
project, BLM employees, or the permittee; and
(iii) it adheres to generally accepted accounting practices that
are promulgated by the Governmental Accounting Standards Board or any
successor entity.
(f) Authorized officers will require mitigation leases and collect
annual rent at fair market value for large or otherwise substantial
compensatory mitigation programs or projects on public lands, including
mitigation banks and in-lieu fee programs. Mitigation leases may be
required for other compensatory mitigation projects on public lands at
the discretion of the authorized officer.
(g) In addition to the general requirements for mitigation leases
(Sec. 6102.4), in some circumstances, authorized officers may require
that mitigation lease holders submit to the agency a formal agreement
with a qualified mitigation fund holder as defined in paragraph (d) of
this section.
(h) An application for a mitigation lease for a mitigation bank or
an in-lieu fee program, in addition to the requirements in (Sec.
6102.4(c)), must also include sufficient information about the
anticipated demand for and duration of the mitigation bank or in-lieu
fee program, the anticipated types of mitigation projects that will be
conducted, and the methods that will be used to generate, evaluate,
assess, and maintain the mitigation projects.
(i) Authorized officers will ensure that compensatory mitigation
programs and projects, including those with mitigation leases, are
tracked in the appropriate BLM data systems.
Subpart 6103--Managing Land Health To Achieve Ecosystem Resilience
Sec. 6103.1 Land Health Standards.
(a) The BLM shall develop national land health standards that
facilitate progress toward achieving the following fundamentals of land
health across all ecosystems on lands managed by the BLM:
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(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, in order 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, 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 or candidate threatened and endangered species, and
other special status species.
(b) Land health fundamentals will be advanced through national land
health standards that, at a minimum, address the following resources,
processes, and values:
(1) Upland hydrologic function;
(2) Riparian, wetland, and aquatic hydrologic function;
(3) Upland ecological processes and biotic communities, including
connectivity, and intactness of native plant and animal habitats;
(4) Riparian, wetland, and aquatic ecological processes and biotic
communities including condition, connectivity, and intactness of native
plant and animal habitats;
(5) Water quality; and
(6) Habitat condition connectivity and intactness for Federal
threatened and endangered species, Federal proposed or candidate
threatened and endangered species, and other special status species.
(c) To facilitate land health evaluations, the national land health
standards will include indicators that are broadly applicable across
the major ecosystem or habitat types (e.g., forest, rangeland, cold
water fisheries) the BLM manages, and will include indicators derived
from standardized datasets.
(d) Authorized officers must manage all program areas in accordance
with the fundamentals of land health and standards, as provided in this
subpart. Authorized officers must adopt the national standards and
indicators, and may, when necessary, incorporate geographically
distinct land health standards and indicators to evaluate rare or
unique habitat or ecosystem types (e.g., permafrost) if such habitats
or ecosystems cannot be evaluated using the national land health
standards and indicators.
(e) Rangeland health standards developed under 43 CFR subpart 4180
will be reviewed and amended or supplemented as necessary to
incorporate the national standards and indicators within 3 years of the
effective date of these regulations. Subsequently, authorized officers
shall review all land health standards for sufficiency at least every
10 years.
(f) Amended land health standards must be approved by the
appropriate BLM State Director prior to implementation.
Sec. 6103.1.1 Management for Land Health.
(a) To facilitate ecosystem resilience, authorized officers should
use watershed condition assessments (see Sec. 6103.2), and land health
evaluations and causal factor determinations to support decision-
making. Such action promotes efficiency, supports environmental
analysis, and streamlines decision-making.
(b) To facilitate ecosystem resilience, authorized officers must
manage all program areas to progress toward achieving land health
standards.
(1) Authorized officers must apply approved land health standards,
as revised from rangeland health standards previously established under
subpart 4180 of this chapter (fundamentals of rangeland health), across
all ecosystems managed by the BLM.
(2) Programs that authorize and manage uses or implement management
actions on public land will develop management guidelines, which are
best management practices designed to facilitate progress toward
achievement and maintenance of land health standards.
(i) Authorized officers may develop or adopt additional management
guidelines to address local ecosystems and management practices.
(ii) Programs and authorized officers will review management
guidelines for sufficiency and make necessary revisions at least every
10 years in conjunction with the review of land health standards
described in this subpart.
(c) Land use plans must identify the allocations and actions
anticipated to achieve desired land health outcomes, including actions
to maintain or restore land health in accordance with the land health
standards. These actions include, but are not limited to, prioritizing
development in degraded areas as well as prioritizing and implementing
restoration actions (see Sec. 6102.3).
(d) Land use plans shall identify statutory, regulatory, and other
requirements that may prevent achievement of land health standards.
(1) Best management practices and mitigation measures to minimize
effects to land health resulting from these requirements should be
identified and required where practicable.
(2) Environmental effects analysis, consistent with NEPA
requirements, for proposed management actions must consider effects to
relevant land health standards.
Sec. 6103.1.2 Land Health Evaluations and Determinations.
(a) Authorized officers shall rely on watershed condition
assessments when possible to complete land health evaluations for BLM-
managed lands on a periodic basis, at least every 10 years (Sec.
6103.2).
(b) Authorized officers must determine the priority landscape and
appropriate scale for completing land health evaluations based on
resource concerns and, as necessary, to support decision-making
processes.
(c) Authorized officers must consider available watershed condition
assessments and existing land health assessments, evaluations, and
determinations in the course of decision-making processes for all
program areas.
(d) Land health evaluations interpret watershed condition
assessments, including locally relevant high-quality information to
draw conclusions about whether land health standards are achieved on
public lands. In the course of conducting land health evaluations,
authorized officers should:
(1) Consider multiple lines of evidence to evaluate achievement of
each standard;
(2) Identify trends toward or away from desired conditions through
analysis of high-quality information available over relevant time
periods and spatial scales;
(3) Document the rationale and findings as to whether each land
health standard is achieved or significant progress is being made
towards its achievement; and
(4) Develop an interdisciplinary monitoring plan with quantitative
objectives that can be measured to demonstrate significant progress
when a land health evaluation report identifies that any standard is
not achieved but significant progress is being made towards
achievement.
(e) When conducting a land health evaluation, if the authorized
officer
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finds that resource conditions are achieving or making significant
progress toward achieving land health standards, no additional land
health analysis is needed to authorize a use or permit activities.
(f) When conducting a land health evaluation, if the authorized
officer finds that resource conditions are not achieving or making
significant progress toward achieving land health standards, a
documented causal factor determination must be prepared as soon as
practicable but no later than 1 year after completion of the land
health evaluation identifying the nonachievement. Causal factor
determinations use available data to identify significant causal
factors and describe contributing causal factors or conditions leading
to non-achievement of standards.
(1) If the authorized officer determines sufficient information
exists to identify and address the significant causal factors
preventing resources from achieving or making significant progress
towards achieving land health standards, no further land health
analysis is required to address such factors.
(2) If the authorized officer determines insufficient information
exists to identify and address the significant causal factors
preventing resources from achieving or making significant progress to
achieving land health standards, additional information, assessment and
evaluation may be needed at finer scale.
(3) The authorized officer must take appropriate actions to
facilitate achievement or significant progress toward achievement of
land health standards as soon as practicable, unless otherwise
specified in the land use plan, or when significant causal factors are
outside of BLM control (e.g., lack of streamflow due to dewatering on
connected lands not administered by the BLM).
(4) To the extent existing grazing management practices or levels
of grazing use on public lands are identified as significant causal
factors preventing resources from achieving or making significant
progress towards achieving land health standards, authorized officers
must proceed under Sec. 4180.2(c) of this chapter. by taking
appropriate action as soon as practicable but no later than the start
of the next grazing year.
(5) Taking appropriate action means implementing actions that will
result in significant progress toward achieving land health standards.
Appropriate action must be consistent with applicable law, regulation,
and the governing land use plan and its management objectives, such as
where an area is managed for recreation or is degraded land prioritized
for development. Appropriate actions may include, but are not limited
to:
(i) Establishment or modification of terms and conditions for
permits, leases, and other use authorizations;
(ii) Development and implementation of activity plans;
(iii) Implementation of adaptive management actions; and
(iv) Control of unauthorized use.
(g) Upon determining that significant causal factors other than
current management practices are preventing achievement of land health
standards, but are not outside of BLM control (e.g., presence of
invasive species), the authorized officer shall identify and prioritize
appropriate actions that may result in significant progress toward
achievement of land health standards (see Sec. 6102.5).
(h) Subject to other applicable law, authorized officers may
implement restoration plans, modify authorized uses, or implement other
management actions to increase expediency and effectiveness of progress
towards achieving land health standards, to protect areas achieving
land health standards, or to meet other objectives.
(i) If current authorized uses are determined to be significant
causal factors and the authorized officer determines appropriate action
is needed, then appropriate action must be consistent with the
governing land use plan. Changes to some types of authorized uses may
first warrant an amendment to the land use plan to allow the authorized
officer to adjust those uses sufficient to make progress toward meeting
land health standards. However, whether to undertake a planning process
is at the discretion of the authorized officer.
(j) Authorized officers will report annually on land health
evaluation, and determination accomplishments; results; and actions
taken to address areas not achieving or making progress toward
achieving standards.
(k) The BLM will maintain and annually update a publicly available
record of land health evaluation and determination results and
management actions taken to facilitate progress toward achieving land
health standards.
Sec. 6103.2 Inventory, Assessment, and Monitoring.
(a) Watershed condition assessments must be completed at least once
every 10 years and used to inform land use planning, protect intact
landscapes (Sec. 6102.2), manage for ecosystem resilience (Sec.
6102.5), inform restoration actions (Sec. 6102.3), and inform land
health evaluations and determinations (Sec. 6103.1.1). Watershed
condition assessments assess and synthesize information on the
condition of soil, water, habitats, and ecological processes within
watersheds relative to the BLM's land health fundamentals and the
national land health standards. When conducting watershed condition
assessments, the BLM must:
(1) Compile and analyze multiple sources of high-quality
information to understand conditions and trends relevant to each land
health standard, including remote sensing products, field-based data,
and other data gathered through inventory, assessment, and monitoring
activities; and
(2) Incorporate consistent analytical approaches, quantitative
indicators, and benchmarks where practicable.
(b) The BLM will maintain a publicly available inventory of
infrastructure and natural resources on public lands. This inventory
must include both critical landscape components (e.g., roads, land
types, streams, habitats) and core indicators that address land health
fundamentals.
(c) Authorized officers will use high-quality inventory,
assessment, and monitoring information, including standardized
quantitative monitoring data, remote sensing maps, and geospatial
analyses, to inform decision-making across program areas, including,
but not limited to:
(1) Authorization of permitted uses;
(2) Land use planning;
(3) Watershed condition assessments and land health evaluations;
(4) Restoration planning, including prioritization;
(5) Assessments of restoration effectiveness;
(6) Consideration of areas of critical environmental concern;
(7) Evaluation and protection of intact landscapes;
(8) Restoration and mitigation leasing; and
(9) Other decision-making processes.
(d) Authorized officers must inventory, assess, and monitor
activities as necessary to inform the decision-making processes
identified in paragraph (b) of this section and, in so doing, must
employ the following:
(1) Interdisciplinary monitoring plans for providing data relevant
to decision makers;
(2) Standardized field protocols and indicators 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;
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(4) Integration with remote sensing products to optimize sampling
and calibrate continuous map products; and
(5) Data management and stewardship to ensure data quality,
accessibility, and use.
[FR Doc. 2024-08821 Filed 5-8-24; 8:45 am]
BILLING CODE 4331-27-P