Sage-Grouse Plan Amendments Come Home to Roost

On September 1, 2016, the BLM Deputy Director issued seven “Instruction Memoranda” (“IMs”) to all subordinate offices implementing the directives of the Sage-Grouse Approved Resource Management Plan Amendments that BLM issued a year ago. These plan amendments affect BLM lands in 10 western states.

The IMs touch on nearly every public land use that requires BLM authorization. In many respects, the IMs direct significant agency resources toward the singular effort to manage BLM lands in sage-grouse habitat for conservation of the species.

Here are some specific elements of each IM, in order of issuance, that should garner the attention of the regulated public and those industries interested in using sage-grouse habitat for commercial purposes. Each IM should be reviewed for details (available here).

Effectiveness Monitoring for Renewable Resources (IM No. 2016-139)

  • “Effectiveness monitoring” is defined as the process of collecting data to determine whether sage-grouse goals and objectives in the land use plans are met, or in the process of being met, while habitat is being used and actions are implemented.
  • The IM recognizes that monitoring commitments are new and monitoring strategies and plans are not yet complete.
  • The IM attaches a sage-grouse monitoring framework developed by BLM and the Forest Service dated May 30, 2014.

Adaptive Management Hard and Soft Triggers (IM No. 2016-140)

  • This IM directs implementation of a process to evaluate triggers and responses. Triggers are tripped by specified habitat conditions, resulting in a response to correct the condition.
  • BLM may (not “shall”) analyze the tripped trigger to determine the cause.
  • Hard triggers require specific responses. Soft triggers require more conservation on a project-by-project basis.
  • Federal, state, and tribal agencies will determine if a trigger is tripped. Involvement of the private sector is not mentioned.
  • The IM recognizes that the increased BLM workload must be accommodated within existing budgets and thus could result in “deferral of accomplishments” in other BLM programs.

Review of Grazing Permits (IM No. 2016-141)

  • Grazing permits will be reviewed, processed, and monitored according to an established priority. If grazing is negatively impacting objectives for the habitat, BLM will change the grazing use to meet the objectives.
  • Allotments in Sagebrush Focal Areas will receive the highest priority for review, followed by allotments in priority and general habitat. Grazing permits outside of sage-grouse habitat will receive the lowest priority, which could lead to delays in permit decisions for those permits.
  • The IM sets out 18 considerations for habitat prioritization.
  • The IM will substantially increase BLM field office workloads. Some of the work may be contracted out.

Grazing Thresholds and Responses (IM 2016-142)

  • Grazing permits and associated National Environmental Policy Act (NEPA) analysis will consider habitat standards and actions to take if the standards are not met. “Thresholds” include, for example, stubble height requirements and streambank alteration limits.
  • The presumption is that the alternative in the NEPA analysis that sets thresholds and responses will be selected as the preferred alternative. If not, the BLM officer must explain why it was not selected.
  • Field offices must review existing data, or collect new data, to complete “habitat suitability ratings.”
  • Responses to missed thresholds will be incorporated as terms and conditions into the grazing permit if existing grazing permit terms are inadequate.

Oil and Gas Leasing and Development (IM 2016-143)

  • BLM will prioritize leasing in non-habitat, followed by general habitat, and then priority habitat as a last resort.
  • The policy applies to the federal mineral estate whether under BLM or other federal surface lands as well as split estates where the minerals are federal and the surface estate is not.
  • To reduce impacts in sage-grouse habitat, all types of mitigation will be considered to achieve the “net conservation gain” mandated by the land use plans. One type of mitigation could be a request to the operator to relinquish leases elsewhere in sensitive habitat.
  • Due to additional time and costs incurred by BLM to implement this policy, permit timelines for wells within sage-grouse habitat may take longer while permits for wells outside of habitat will be prioritized for processing.

Habitat Assessment Policy (IM 2016-144)

  • This IM directs BLM offices as to how and when to assess sage-grouse habitat.
  • Habitat assessments will be conducted where existing information is limited or where management changes may improve habitat.
  • The information will be used to inform management actions, identify metrics for monitoring, assist in NEPA analysis, and define habitat conditions.

Tracking and Reporting Surface Disturbance and Reclamation (IM 2016-145)

  • This IM adopts a surface disturbance calculation approach in priority habitat similar to that first developed by the State of Wyoming to determine if human disturbance is too great in any given habitat location.
  • Disturbance density will be calculated for energy and mining facilities at the project scale (except in Nevada). Density is limited to one facility for each 640 acres on average within the project analysis area.
  • “Biologically Significant Units,” defined in the land use plans, will be reviewed for disturbance caused by energy, mining, or infrastructure according to 12 defined threats. Seven other defined threats will be calculated at the project level.

Unless you are a current client of Holland & Hart LLP, please do not send any confidential information by email. If you are not a current client and send an email to an individual at Holland & Hart LLP, you acknowledge that we have no obligation to maintain the confidentiality of any information you submit to us, unless we have already agreed to represent you or we later agree to do so. Thus, we may represent a party adverse to you, even if the information you submit to us could be used against you in a matter, and even if you submitted it in a good faith effort to retain us.