BLM Director's Responses to the Appeals by the Governors of Idaho, Nevada, North Dakota, South Dakota, and Utah Governors of the BLM State Directors' Governor's Consistency Review Determination, 61448-61454 [2015-25973]

Agencies

• DEPARTMENT OF THE INTERIOR
• Bureau of Land Management

[Federal Register Volume 80, Number 197 (Tuesday, October 13, 2015)]
[Notices]
[Pages 61448-61454]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-25973]



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DEPARTMENT OF THE INTERIOR

Bureau of Land Management

[LLWO2100000 L11100000.DR0000.LXSISGST0000]


BLM Director's Responses to the Appeals by the Governors of 
Idaho, Nevada, North Dakota, South Dakota, and Utah Governors of the 
BLM State Directors' Governor's Consistency Review Determination

AGENCY: Bureau of Land Management, Interior.

ACTION: Notice.

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SUMMARY: The Approved Resource Plan Amendments and Approved Resource 
Plan/Records of Decision (RODs) for the Great Basin Region and Rocky 
Mountain Regions were signed by the BLM Director and the Assistant 
Secretary, Lands and Minerals Management, on September 21, 2015. The 
RODs constitute the final decision of the BLM and the Approved Plan 
Amendments and Approved Plan were effective immediately upon their 
signing. In accordance with its regulations, the BLM is publishing the 
reasons for rejecting the recommendations of the Governors of Idaho, 
Nevada, North Dakota, South Dakota, and Utah regarding Idaho, Nevada, 
North Dakota, and Utah Greater Sage-Grouse (GRSG) Proposed Resource 
Management Plans Amendments (PRMPAs) and Final Environmental Impact 
Statements (FEISs) and the South Dakota Proposed Resource Management 
Plan (PRMP) and Final Environmental Impact Statement (FEIS) which were 
published on May 29, 2015.

FOR FURTHER INFORMATION CONTACT: Brian Amme, Acting Division Chief for 
Decision Support, Planning and NEPA, telephone 202-912-7289; address 
1849 C Street NW., Room 2134LM, Washington, DC 20240; email 
bamme@blm.gov.
    Persons who use a telecommunications device for the deaf (TDD) may 
call the Federal Information Relay Service (FIRS) at 1-800-877-8339 to 
contact the above individuals during normal business hours. The FIRS is 
available 24 hours a day, 7 days a week, to leave a message or question 
with the above individual. You (Governor) will receive a reply during 
normal business hours.

SUPPLEMENTARY INFORMATION: The RODs amend and revise Resource 
Management Plans (RMPs) across the range of the Greater Sage Grouse 
(GRSG), including RMPs in the states of Idaho, Nevada, North Dakota, 
South Dakota, and Utah. The RODs incorporate conservation measures to 
conserve, enhance and restore GRSG and its habitat.
    In accordance with the regulations at 43 CFR 1610.3-2(e), the BLM 
submitted the Proposed Plan Amendments (Idaho, Nevada, North Dakota, 
and Utah) and Proposed Plan (South Dakota) for a 60-day Governors' 
Consistency Review. The 60-day review period ended on July 29, 2015. 
The relevant BLM State Directors (State Directors) received letters 
from the Governors of Idaho, Nevada, North Dakota, South Dakota, and 
Utah identifying alleged inconsistencies with State and local plans, 
policies, and programs and identifying recommendations to address those 
potential inconsistencies. These letters are available at https://www.blm.gov/wo/st/en/prog/more/sagegrouse/documents_and_resources.html. 
After careful consideration of the concerns raised by the five States, 
the State Directors decided not to adopt the recommendations made by 
the Governors. Copies of the August 6, 2015, letters from the State 
Directors to the Governors are also available at https://www.blm.gov/wo/st/en/prog/more/sagegrouse/documents_and_resources.html.
    By September 11, 2015, the BLM Director had received appeals from 
the Governors of Idaho, Nevada, North Dakota, South Dakota, and Utah on 
the State Directors' decisions on their recommendations.
    In reviewing these appeals, the regulations at 43 CFR 1610.3-2(e) 
state that ``[t]he Director shall accept the (consistency) 
recommendations of the Governor(s) if he/she determines they provide 
for a reasonable balance between the state's interest and the national 
interest.'' On September 16, 2015, the BLM Director issued final 
responses to the Governors detailing the reasons that the 
recommendations did not meet this standard. Copies of both the incoming 
appeal letters from the Governors and the outgoing responses are 
available at https://www.blm.gov/wo/st/en/prog/more/sagegrouse/documents_and_resources.html. Pursuant to 43 CFR 1610.3-2(e), the basis 
for the BLM's determination on the Governors' appeals is presented 
below. Appeal responses are grouped by state and issues area and are 
being published verbatim.

Idaho

Overall Consistency With Idaho State and Local Plans

    Your (Governor's) letter states that the BLM responses to the Idaho 
Consistency Review letter failed to follow section 202(c)(9) of FLPMA, 
which states that land use plans be consistent with state and local 
plans to the maximum extent the Secretary of the Interior finds 
consistent with Federal law. A cornerstone of the BLM's sage grouse 
planning process has been coordination and collaboration with the 
affected states, as demonstrated by the detailed consideration and, in 
many cases, adoption of the strong GRSG conservation approaches put in 
place by or suggested by the states, including those put in place by or 
suggested by the State of Idaho. However, in order to provide the 
necessary regulatory certainty, the BLM found it necessary to ensure 
that there are consistently strong approaches to the management of BLM-
managed lands range-wide. The purpose of these common elements is to 
provide for a net conservation gain for the GRSG. However, the plans 
also recognize that different circumstances exist across the range, 
which is why the plans have allowed for flexibility where appropriate 
in the sub-regional plans, such as the three-tier mapping and 
management approach adopted as part of the Idaho plans. As such, I (BLM 
Director) must respectfully disagree with your contention that the 
ARMPA is materially inconsistent with the Governor's Plan. The three-
tier approach in the Governor's Plan is the basis of the Idaho/
Southwest Montana ARMPA. The BLM has also worked with the State of 
Idaho to tailor many of the ``range-wide'' management actions in the 
Idaho ARMPA, such as the recent inclusion of prioritization actions for 
grazing management in Sagebrush Focal Area (SFAs). These actions 
demonstrate how the PRPMA has adopted the fundamental tenets of the 
State plan.

Multiple Use in the Proposed Plan

    Your (Governor's) appeal letter states that the BLM erroneously 
relied on Manual 6840, Special Status Species Management, in the 
development of the PRMPA and the response to the Governor's Consistency 
Review letter. This statement does not identify an inconsistency with 
state or local resource related plans, policies, or programs, 
therefore, a response is not required under the Governor's consistency 
review process. The purpose of the amendment is the conservation of a 
special status species, the GRSG, and the management actions in the 
amendment are limited to those which will conserve, enhance, and 
restore GRSG and its habitat consistent with the agency's multiple-use 
and sustained yield mission. The management actions are consistent with

[[Page 61449]]

all of the applicable BLM regulations and policies and allow for 
continued multiple-use of the lands. Most uses may still occur on the 
lands included in the amendment, with stipulations and conditions which 
conserve, enhance, and restore GRSG and its habitat. Allowable resource 
uses of the BLM lands which are not addressed in this amendment remain 
in the current land use plans. Therefore, I concur with the BLM Idaho 
State Director's statements about the applicable purposes, policies, 
programs, Federal laws, and regulations applicable to BLM-managed 
public lands, including BLM Manual 6840.

Alleged Improper Delegation

    You (Governor) also assert that the BLM has improperly delegated 
authority to the FWS by permitting that agency to effectively veto land 
management decisions for an unlisted species. This statement does not 
identify an inconsistency with state or local resource related plans, 
policies, or programs, therefore, a response is not required under the 
Governor's consistency review process. That said, I would note that the 
BLM is not and has not delegated its authority. Rather, the BLM has 
focused on making its planning decisions based on input from local and 
national experts on these issues. For example, in order to provide the 
most protection to GRSG in Priority Habitat Management Areas (PHMA), 
the areas of highest importance for the species, decisions on allowing 
surface occupancy during fluid mineral development will be made with 
the Idaho Department of Fish and Game and the FWS, the local and 
national experts on GRSG, respectively. The BLM is not delegating 
authority, but ensuring that all experts evaluate whether there would 
be direct, indirect, or cumulative effects on GRSG before allowing 
surface-disturbing fluid mineral development in areas of important 
habitat. While the BLM retains the final decision-making authority for 
decisions on the public lands, this input is critically important.

SFAs Exemption

    In your (Governor's) appeal letter, you request that I reconsider 
the request to exempt Idaho from SFAs. I have reviewed your prior 
comments on the development of the SFAs and I understand that your 
office is strongly opposed to them. While I understand these concerns, 
I uphold the determination of the BLM Idaho State Director that the 
SFAs are consistent with the BLM's range-wide GRSG conservation 
strategy. I also want to reiterate that the SFAs are a subset of PHMA, 
with limited additional management actions to ensure that the ``best of 
the best'' habitat receives the attention it deserves. In addition to 
the recommended mineral withdrawal and the fluid mineral no surface 
occupancy (NSO) stipulation without waivers, exceptions, or 
modifications, the ARMPA clarifies (in response to your Governor's 
consistency review letter) that these areas will be prioritized for a 
broader group of activities, including vegetation management, wild 
horse and burro management, habitat restoration, fire and fuels 
actions, as well as the review of livestock grazing permits and leases, 
consistent with the State of Idaho Plan.
    You also assert in your (Governor's) appeal that in developing the 
SFAs the BLM has created Areas of Critical Environmental Concern 
(ACECs) without following the proper regulatory process. This concern 
does not identify an inconsistency with state or local resource or 
related plans, policies or programs, and therefore, a response is not 
required under the Governor's consistency review process. It should be 
noted that the SFAs are not ACECs--they are a subset of PHMAs with 
additional management protections, all of which were fully analyzed in 
the Draft and Final EISs for the Idaho plan. These additional measures 
include NSO without waiver, exception, or modification for fluid 
mineral development and a recommendation for withdrawal from the 1872 
Mining Law. These actions and recommendations do not constitute an ACEC 
designation under the applicable regulations.

Disturbance Caps

    Both your (Governor's) consistency review and appeal letter 
requested the removal of the project level disturbance caps. The BLM 
included the project-level disturbance cap to ensure that disturbance 
is limited at both a local and landscape scale and to encourage co-
location of disturbance. Based on best available science, when 
disturbance exceeds three percent at either scale, GRSG numbers are 
affected and tend to decline (derived from Holloran 2005, Walker et al. 
2007, Doherty et al. 2008, Naugle et al. 2011). Disturbance caps at 
both the BSU and the project scale are necessary to account for the 
amount of existing disturbance at both scales. Calculating disturbance 
for each additional anthropogenic disturbance placed on the landscape 
is particularly important at the project scale to ensure that GRSG 
numbers and habitat acreages remain stable or increase. Further, 
calculations at both of these scales are intended to encourage 
clustering of disturbance and discouraging development in undisturbed 
habitat. This is a critically important aspect of the GRSG strategy, 
and therefore, I (BLM Director) respectfully deny your appeal on this 
issue and uphold the State Director's determination that your 
recommendation is inconsistent with the goal of the BLM's range-wide 
GRSG conservation strategy.
    It should be noted that based upon further review across the Great 
Basin region, the BLM is including an exception to the project-level 
disturbance cap for designated utility corridors, to ensure that these 
areas are used to the fullest extent possible as intended for utility 
lines and associated disturbance. This modification is consistent with 
BLM's goal of encouraging co-location of disturbance.

Net Conservation Gain Standard

    Your (Governor's) appeal notes that the Governor's ``. . . strategy 
is in many ways in and of itself a mitigation plan,'' and as a result, 
you expresses concern that the BLM mitigation standard of net 
conservation gain is in conflict with this. I respectfully disagree 
with this statement. Based on the way the ARPMA is structured, the 
Idaho State Plan, especially the three-tier approach, will serve as a 
key component of the BLM's mitigation strategy, and therefore the AMPRA 
is not in conflict or inconsistent with the state strategy. 
Additionally, as noted in the State Director's response, the mitigation 
standard in the amendment is consistent with numerous national 
policies, including Secretarial Order 3330 and BLM's Draft--Regional 
Mitigation Manual Section (MS)-1794. As a result, I deny your appeal on 
this issue and uphold the State Director's determination that your 
recommendation is inconsistent with the goal of the BLM's range-wide 
GRSG conservation strategy.
    I would also note that going forward it will be critical for BLM 
and its partners to work together to develop and implement effective 
mitigation on the ground. This mitigation will be developed working 
with existing and developing mitigation approaches that are being 
utilized in individual states and west-wide. To do this, the BLM will 
utilize the expertise of state and Federal partners, through WAFWA 
Management Zone conservation teams, to develop mitigation strategies. 
Participation of your Office of Species Conservation and the Idaho 
Department of Fish and Game will be critical to this effort.

Livestock Grazing

    You (Governor) identified numerous concerns with the livestock 
grazing

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management actions in the amendment in your (Governor's) Consistency 
Review and appeal. As a result of the Governor's consistency review 
process, the BLM included a refinement of the prioritization strategy 
for livestock grazing management. The revised language states that:
    ``Management and conservation action prioritization will occur at 
the Conservation Area (CA) scale and be based on GRSG population and 
habitat trends: Focusing management and conservation actions first in 
SFAs followed by areas of PHMA outside SFA.''

Under this refined language, vegetation management actions, including 
but not limited to the review of grazing permits, are prioritized in 
SFAs. In light of the agency's limited resources, we will focus our 
management actions first in SFAs, as these are the areas which hold the 
best contiguous habitat and populations. Specifically, our actions will 
focus on those allotments or permits not meeting land health standards 
in areas where the sage-grouse populations are in decline.
    You (Governor) also express concerns with the habitat objectives 
table, that the management direction associated with its use is vague 
and subjective. The use of the metrics in the table will be site-
specific. Specifically, the habitat objectives table sets forth the 
desired habitat condition for permitted uses. The metrics in the table 
will be used, as appropriate, based on ecological site potential, in 
the development of land use authorizations, including but not limited 
to livestock grazing permits, and land health assessments. Please note, 
the BLM creates and uses habitat objectives for many special status 
species and includes them in land health assessments it prepares 
routinely across the west.
    Finally, you (Governor) expressed concern about the BLM's statement 
that ``current grazing management will not change as a result of the 
SFA designation.'' Specifically, with respect to your statement that 
prioritization of grazing permit renewals in SFAs ``. . . is really a 
subterfuge for elevating the activity ((i.e., grazing)) to primary 
threat status,'' I (BLM Director) would like to clarify the intent of 
BLM's approach. The plans prioritize grazing permit renewals and field 
checks within SFAs because of the habitat quality in those areas, not 
because of some unstated concern about the level of threat posed by 
current grazing activities. As stated above, maintenance of habitat 
quality within SFAs is a key component of the BLM's plans. Moreover, it 
should be noted that the BLM, under current authority and plans, is 
responsible for ensuring that grazing is undertaken in an appropriate 
manner and that uses are meeting or moving towards meeting applicable 
land health standards. The amendment does not change this underlying 
obligation. They do however inform the applicable land health standards 
and place a higher focus on meeting or moving toward meeting land 
health standards and GRSG habitat objectives in SFAs.
    Based on the foregoing, I respectfully deny your appeal on these 
grazing issues and uphold the State Director's determination that your 
recommendation is inconsistent with the goal of the BLM's range-wide 
GRSG conservation strategy range-wide.

Lek Buffers

    In your (Governor's) Consistency Review, you recommended that the 
BLM remove the uniform lek buffers from the plans. The BLM Idaho State 
Director's response explained that the buffers are not uniform and that 
local data and regulations can be considered in their application at 
the project development stage. The application of buffers also varies 
according to habitat type, with more exceptions provided in General 
Habitat Management Areas (GHMA) than in PHMA. Additionally, the use of 
the buffers identified in the Governor's Plan is allowed under the 
considerations put forth in the amendment, provided they provide the 
same level of protection for GRSG and its habitat in any particular 
circumstance. Again, the use of buffers will be determined on a site- 
and project-specific basis, during project development. Based on the 
foregoing, I (BLM Director) respectfully deny your appeal on this issue 
and uphold the State Director's determination that your recommendation 
is inconsistent with the goal of the BLM's range-wide GRSG conservation 
strategy.

Required Design Features

    In your (Governor's) appeal, you request that I (BLM Director) 
consider removing the Required Design Features (RDFs) which are not 
contained in the Governor's Plan. I agree with the Idaho State Director 
that the RDFs are an important aspect of the BLM strategy and 
respectfully deny your request. Similar to the buffers, there is 
flexibility in the application of the RDFs, such that if there is a 
Best Management Practice in the Governor's Plan which provides equal 
protection for GRSG and its habitat, it may be used instead, and 
therefore the RDFs do not create an inconsistency with state or local 
resource related plans, policies, or programs.

Nevada

Inconsistencies Between the BLM's Nevada GRSG PRMPA and the State GRSG 
Plan

    As you (Governor) know, the BLM adopted much of the State GRSG Plan 
into the PRMPA. However, in addition to the measures in the State plan, 
the BLM is required under the applicable regulations to include in its 
land use plans goals, objectives, allocation decisions and management 
actions that help the BLM to specifically manage certain resources on 
public land. These components are also a critical part of BLM's Special 
Status Species policy, under which disturbance-limiting land use plan 
allocation decisions are a key component. The State's Plan does not 
contain such allocation decisions or management actions as it relies 
largely on cost-based incentives to implement an avoid, minimize, and 
mitigate strategy. In effect, if an applicant has sufficient funds to 
buy credits, a project could be allowed to be placed anywhere, even in 
the most important habitat. The BLM has found that this approach, 
especially before it has built an implementation track record, may not 
address the BLM's land use planning requirements and does not provide 
the requisite level of regulatory certainty for a landscape-level 
species like the GRSG. As noted above, the allocation decisions 
presented in the BLM's plans and amendments range-wide were designed to 
provide that level of certainty. Therefore, I (BLM Director) concur 
with the Acting Nevada State Director's response and respectfully deny 
your (Governor's) appeal on this issue because it is inconsistent with 
the goal of the BLM's GRSG conservation strategy.

Anthropogenic Disturbance Cap Will Hinder GRSG Conservation Efforts

    Your (Governor's appeal) letter states that the Disturbance Cap 
Protocol (DCP) would encourage habitat fragmentation because it 
provides an incentive to locate new disturbances in areas with little 
existing disturbance. The goal of the DCP has always been to encourage 
the co-location of new disturbances with existing disturbances if the 
activity cannot be avoided altogether within GRSG habitat in order to 
limit overall disturbance levels in these areas and the impact that 
they have on the species. The BLM Nevada State Director worked closely 
with your office to craft the DCP. Due to that close coordination and 
in recognition of the State's work and

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investment in the CCS, the BLM's plan in Nevada is the only one to 
include an exception to the cap. The ARMPA adopts a DCP with a 3% cap, 
except in situations where a biological analysis indicates a net 
conservation gain to the species, and the State of Nevada, the BLM, and 
FWS concur with that analysis.
    With respect to the suggestion that the DCP will encourage 
disturbance in previously undisturbed areas, the Nevada ARMPA contains 
allocation decisions separate and apart from the DCP that will limit or 
preclude new disturbance in PHMA and minimize disturbance in GHMA. The 
BLM believes that these protective allocation decisions (i.e. no 
surface occupancy for fluid mineral leasing in PHMA), will limit 
additional disturbance from occurring and causing habitat 
fragmentation, thereby maintaining disturbance under the 3% disturbance 
cap threshold.
    In addition, the ARMPA has been clarified to provide for exceedance 
of the 3% disturbance cap within open designated utility corridors. 
This clarification has now been added to the BLM Nevada and 
Northeastern California's ARMPA in order to ensure co-location with 
existing disturbances. Based on best available science, when 
disturbance exceeds three percent at either the biologically 
significant unit or project scale, GRSG numbers are affected and tend 
to decline (derived from Holloran 2005, Walker et al. 2007, Doherty et 
al. 2008, Naugle et al. 2011).
    Based on the foregoing, I (BLM Director) therefore deny your 
(Governor's) appeal on this issue and concur with the Acting State 
Director's determination that this recommendation is inconsistent with 
the goal of the BLM's range-wide GRSG conservation strategy.

SFAs Are Scientifically, Functionally and Administratively Flawed

    As explained in the Acting BLM Nevada State Director's response, 
the BLM continues to rely on the FWS expertise as a cooperating agency 
in this planning effort. In that role, the FWS' provided the BLM with a 
memorandum identifying highly important landscapes. These areas 
represent the recognized ``strongholds'' for GRSG that have been noted 
and referenced as having the highest densities of GRSG and other 
criteria important for the persistence of the species. By recognizing 
these areas and applying consistent management within them across the 
Great Basin, the BLM believes it is providing regulatory certainty to 
the FWS that these areas will be protected. Additionally, although the 
SFAs are a high priority for protection from anthropogenic 
disturbances, and disturbances from fire, invasives, and conifer 
encroachment, the protection of all other GRSG habitat is also a major 
component of the ARMPA, contrary to the suggestion in your (Governor's) 
appeal. The ARMPA contains numerous pages of protective decisions that 
apply to PHMA, GHMA, and Other Habitat Management Areas; no habitat 
category is being ignored. I (BLM Director), therefore, respectfully 
deny your appeal on these issues and uphold the Acting State Director's 
determination that your recommendations are inconsistent with the goal 
of the BLM's range-wide GRSG conservation strategy.
    Your letter also states that segregating the SFA lands from mineral 
entry for a two-year period would have a negative effect on investment 
in the region, to the detriment of local, state, and national 
interests. This statement does not identify an inconsistency with State 
or local resource related plans, policies, or programs, therefore a 
response is not required under the Governor's consistency review 
process. Nevertheless, it is important to note that the SFAs comprise 
less than 3% of the lands in Nevada. The withdrawal process, beginning 
with the temporary segregation, includes a public process to consider 
information provided by the states, stakeholders and others on mineral 
potential, as well as the importance of these areas as sage-grouse 
habitat. This information will be included in the analyses which the 
Secretary will use to make a decision about a potential withdrawal.

Nevada's Conservation Credit System (CCS) Assures Net Conservation Gain

    The ARMPA does not deny the application of the State of Nevada's 
CCS or say that it will not provide for a net conservation gain. In 
fact, BLM recognizes that CCS will play an important role in mitigation 
efforts in Nevada. That said, the ARMPA also recognizes that there are 
other forms of mitigation that can result in a net conservation gain to 
GRSG and its habitat. As a result, the ARPMA commits to consideration 
of the CCS, as appropriate, and looks forward to utilizing the CCS as 
an important tool in mitigating the impacts of habitat disturbance. The 
relationship between BLM management of the public lands and the CCS is 
currently being negotiated through a Memorandum of Understanding (MOU) 
with the SETT. Working through the specific factors of how and when the 
BLM and applicants would use the CCS is not a planning decision, and is 
outside of the scope of the planning effort, and therefore is not 
subject to consistency review of appeal. The MOU reflects the plan 
decision to consider the CCS as a means of mitigation. The ARMPA 
includes language to clarify the relationship between the CCS and 
proposed uses in GRSG habitat. I (BLM Director) therefore respectfully 
deny your (Governor's) appeal on this issue and uphold the State 
Director's determination that your recommendation is inconsistent with 
the goal of the BLM's range-wide GRSG conservation strategy.

LUPA/FEIS Must Incorporate New Science and Data

    Your (Governor's appeal) letter indicates that BLM is not committed 
to using the best available science. This statement does not identify 
an inconsistency with State or local resource related plans, policies, 
or programs, and therefore a response is not required under the 
Governor's consistency review process. The BLM will incorporate new 
science as it becomes available. New information, updated analyses, or 
new resource use or protection proposals may require amending or 
revising land use plans and updating implementation decisions. In this 
case, the primary requirement for considering new information is as 
follows:

    The BLM planning regulations require evaluating whether there is 
new data of significance to the land use plan (see 43 CFR 1610.4-9) 
and whether plan amendments (see 43 CFR 1610.5-5) or revisions (see 
43 CFR 1610.5-6) are required.

The BLM commends the State of Nevada for investing in updating mapping 
in cooperation with the U.S. Geological Survey and others. There are 
many factors that will need to be taken into consideration concerning 
new mapping efforts and how they will used by the BLM. Although the BLM 
can take these new mapping changes into account when making 
implementation-level decisions, the BLM's authority to impose plan-
level management changes is limited. The determination whether to amend 
or revise an RMP based on new proposals, circumstances, or information 
depends on (1) the nature of the new proposals, (2) significance of the 
new information or circumstances, (3) specific wording of the existing 
land use plan decision, including any provisions for flexibility, and 
(4) the level and detail of the NEPA analysis.
    Finally, your letter also includes a concern regarding the 
leadership of the Western Association of Fish and Wildlife Agencies 
(WAFWA) Management Zone Greater Sage-Grouse

[[Page 61452]]

Conservation Team. This statement does not identify an inconsistency 
with State or local resource related plans, policies, or programs, and 
therefore a response is not required under the Governor's consistency 
review process. Nevertheless, I (BLM Director) wish to clarify, as 
explained in the ARMPA, that this team will be led by State of Nevada 
and representatives from the appropriate Federal agencies.

North Dakota

Balanced Land Use

    Your (Governor's) consistency review and appeal letter expressed 
concern that the PRMPA does not include adequate information on land 
use. This concern does not identify an inconsistency with State or 
local resource related plans, policies, or a program, therefore a 
response is not required under the Governor's consistency review 
process. I (BLM Director) do, however, concur with the response from 
the BLM Montana/Dakotas State Director that the purpose of the plan 
amendment is to conserve, enhance and restore GRSG habitat by reducing, 
minimizing, or eliminating threats to the habitat of GRSG in accordance 
with the BLM's multiple-use and sustained yield mandate. Management 
direction in the amendment is specific to those activities on BLM land 
in southwestern North Dakota which may impact GRSG. Other programs/uses 
outside of GRSG habitat that are not addressed in the ARMPA are carried 
forward from the existing North Dakota Resource Management Plan (1988) 
and are not altered by this decision.

New Technology

    The North Dakota Governor's consistency review and appeal letter 
states that the proposed amendment is unclear about new technologies. 
The appeal does not raise an issue of inconsistency to resolve in this 
regard. I (BLM Director) do, however, concur with the response from the 
Montana/Dakotas State Director Jamie Connell which noted that the 
majority of the southwestern area of North Dakota is already leased and 
predominately developed using one well per pad. I would also note that 
the amendment includes flexibility for oil and gas development and 
location, such as collocation of wells on well pads and directional 
drilling from outside of habitat, and therefore is not inconsistent 
with modern drilling technologies and approaches.

Case-by-Case Analysis

    In your (Governor's) consistency review and appeal letter, you 
expressed a need for case-by-case management decisions. This statement 
does not identify an inconsistency with State or local resource related 
plans, policies, or programs, and therefore a response is not required 
under the Governor's consistency review process. Nevertheless, I (BLM 
Director) concur with the response from the BLM Montana/Dakotas State 
Director that the BLM's planning regulations require that we use land 
use plan allocation decisions to specifically manage certain resources 
on public land. Disturbance-limiting allocation decisions are the 
keystone to the BLM's Special Status Species Policy. In contrast, the 
North Dakota State Plan is voluntary, and does not contain allocation 
decisions. Such an approach does not provide the necessary level of 
regulatory certainty necessary to achieve the goals of the BLM's range-
wide GRSG conservation strategy for a landscape-level species such as 
GRSG. It is important to note that the BLM will continue to work with 
the State of North Dakota and proponents on a case-by-case basis on all 
future project level implementation activities, to ensure that they 
utilize the best available science and local information, in 
conformance with the decisions in the ARMPA. Also, please note that all 
of the management decisions in the ARMPA are subject to valid existing 
rights.
    With respect to your concerns about new information and mapping 
data, the BLM will consider and incorporate new information and habitat 
mapping, when applicable, and as it becomes available. New information, 
updated analyses, or new resource use or protection proposals may 
require subsequent plan maintenance, revision, or amendment, as 
appropriate.

Net Conservation Gain

    You state that the net conservation gain mitigation standard put 
forth in the PRMPA is inconsistent with FLPMA. This statement does not 
identify an inconsistency with State or local resource related plans, 
policies, or a program, therefore a response is not required under the 
Governor's consistency review process. I (BLM Director) do, however, 
concur with the response provided the BLM Montana/Dakotas State 
Director that included an extensive explanation of how this landscape-
scale goal is consistent with the BLM's GRSG Strategy as well as 
Federal policy.

Tall Structures

    Your (Governor's) consistency review and appeal letter state that 
the management actions for ``tall structures'' are unworkable. As noted 
in the response from the BLM Montana/Dakotas State Director, this 
statement does not identify an inconsistency with State or local 
resource related plans, policies, or programs, and therefore a response 
is not required under the Governor's consistency review process. It 
should be noted, however, that tall structures are a concern because 
they can provide habitat for predators of GRSG. Therefore, managing the 
placement and mitigating impacts of tall structures is an important 
aspect of the BLM's range-wide conservation strategy. The management 
approaches in the amendment, such as required design features and 
application of lek buffer distances, allow for the development and use 
of appropriately designed and mitigated tall structures.

Comment Periods

    The North Dakota Governor's consistency review and appeal letter 
state that there was not adequate opportunity for public review and 
comment. As noted in the response from the BLM Montana/Dakotas State 
Director, this statement does not identify an inconsistency with State 
or local resource related plans, policies, or programs, and therefore a 
response is not required under the Governor's consistency review 
process. It should be noted, however, that the BLM provided full 
opportunity for public comment and involvement in accordance with 
applicable law and regulations. More details on this can be found in 
Chapter 6 of the Final Environmental Impact Statement, as well as in 
the ARMPA and Record of Decision, found at https://www.blm.gov/wo/st/en/prog/more/sagegrouse.html.

South Dakota

Waivers and Modifications for No Surface Occupancy Stipulations

    In both your Governor's consistency review letter and in your 
(Governor's) appeal letter, you recommend that the BLM provide more 
flexibility regarding fluid mineral development to allow for the 
development of oil and gas resources in South Dakota. I (BLM Director) 
concur with the assertion of Montana/Dakotas State Director Jamie 
Connell that adoption of the recommendation offered, namely allowing 
waivers and modifications to no surface occupancy stipulations in 
Priority Habitat Management Areas, is not consistent with the goals of 
the

[[Page 61453]]

BLM's range-wide GRSG conservation strategy. The FWS identified energy 
development, mining, and infrastructure as major threats to the GRSG 
populations in the Dakotas in its 2010 listing determination and in the 
2013 Conservation Objectives Team Report. The BLM has determined that 
allowing limited exceptions and no modification or waivers to the 
development of future fluid mineral resources with No Surface Occupancy 
stipulations is necessary to address these threats in Priority Habitat 
Management Areas. I, therefore, respectfully deny your appeal on this 
issue and uphold the State Director's determination.

Reasonable Foreseeable Development Analysis

    You state that you wish the BLM to reconsider the decision not to 
update the Reasonable Foreseeable Development (RFD) analysis in the 
Final Environmental Impact Statement. This statement does not identify 
an inconsistency with State or local resource related plans, policies, 
or programs; therefore, a response is not required under the Governor's 
consistency review process. I (BLM Director) do, however, concur with 
the response from the BLM Montana/Dakotas State Director that, while 
the RFD may not have utilized the 2014 data provided by South Dakota, 
the analysis provides adequate information with regard to overall 
potential development and serves as an appropriate basis for the BLM's 
planning process.
    In connection with the development of the PRMP, the BLM reviewed 
the RFD Scenario for Oil and Gas Activities on Bureau Managed Lands in 
the South Dakota Study Area (RFD; BLM, 2009) and the report reviewed by 
the Wyoming Reservoir Management Group, which includes BLM technical 
experts. The BLM also reviewed information provided by the State of 
South Dakota and data on drilling that has occurred in the first 4 
years and 10 months of the analysis period for the 2009 RFD. Based on a 
review of this data, the BLM has determined that the current drilling 
rate does not support the projections offered by the State of South 
Dakota. Additionally, the reviewers determined that the 2009 RFD 
adequately accounted for variables such as increased gas prices. While 
the RFD is not able to accurately predict the exact locations of future 
wells, the reviewers determined that in aggregate, it still provides 
the best available information with regard to overall potential 
development. Therefore, I respectfully deny your appeal on this issue.

Utah

WAFWA Management Zone GRSG Conservation Team

    You (Governor) expressed concern about the use of the WAFWA 
Management Zone GRSG Conservation Team in your Governor's Consistency 
Review and reiterate the concern in your (Governor's) appeal. This 
concern does not identify an inconsistency with state or local resource 
related plans, policies, or programs, and therefore a response is not 
required under the Governor's consistency review process.
    I (BLM Director) understand that the State of Utah is in a unique 
position, with habitat in four WAFWA Zones, and agree that the WAFWA 
Management Zone GRSG Conservation Teams should utilize existing 
approaches and constructs to the fullest extent possible in connection 
with their work. The ARMPA and the ROD include language to reflect this 
direction. It should also be remembered that the primary purpose of 
these teams are to advise on cross-state issues, such as regional 
mitigation strategies and adaptive management monitoring and response. 
In connection with these efforts, I am confident that the BLM Acting 
Utah State Director will ensure that the good work the State of Utah 
has done, including the State's mitigation plan, is considered as the 
PLUPA is implemented. Notably, the State of Utah has done outstanding 
work on vegetation treatments to improve habitat condition, including 
its conifer removal implementation plans.

Conservation Activities for the Department of Defense

    Your (Governor's) Consistency Review and appeal letters recommend 
that the BLM adopt planning provisions in the amendment which provide 
equivalent protections for the activities of the Department of Defense 
as those found in the State's Conservation Plan. The Department of 
Defense has been a partner throughout the GRSG planning process and has 
worked with us to address the potential impacts of the amendment on 
base readiness across the range. Therefore, I (BLM Director) 
respectfully deny your (Governor's) appeal on this issue and uphold the 
Acting Utah State Director's determination that your recommendation is 
inconsistent with the goal of the BLM's range-wide GRSG conservation 
strategy range-wide and the applicable legal authorities.

Livestock Grazing

    The BLM was able to provide clarifying information in the ROD to 
make clear that appropriately managed livestock grazing may continue 
under the GRSG plans. However, the additional changes you recommend in 
your (Governor's) appeal letter are beyond the scope of the appeal 
process and do not relate to an inconsistency with State or local 
resource related plans, policies, or programs; therefore, a response is 
not required under the Governor's consistency review process. That 
said, I (BLM Director) remain committed to working with the state and 
other stakeholders to ensure that these plans are implemented in a 
manner that demonstrates well-managed grazing practices are compatible 
with long-term sage-grouse conservation.

Alton Coal Lease-By-Application

    In the Governor's Consistency Review and the appeal, you 
recommended that the BLM identify the Alton Coal Lease-By-Application 
(LBA) tract as GHMA, as opposed to a PHMA. Based on data collected by 
the State, the company, FWS, and the BLM, the area in and around the 
Alton tract contains active dancing and strutting grounds, and may 
contain the southernmost lek in the United States. Based on this data, 
the FWS, working with the State and others, identified the area as a 
priority area for conservation in the FWS Conservation Objectives Team 
Report, which led to the BLM identifying it as PHMA. After carefully 
reviewing the available information related to GRSG in and around the 
Alton Coal tract and the response by the BLM Acting Utah State 
Director, I (BLM Director) am upholding the decision to retain this 
area as PHMA and deny your recommendation because it is inconsistent 
with the goal of the BLM's GRSG conservation strategy range-wide.

State Authority Concerning Management of Wildlife

    Your consistency review and appeal letter express concern about the 
provision which requires agreement by the State and FWS prior to 
approving exceptions to the NSO stipulation for fluid mineral 
development in PHMA. This does not raise an issue of inconsistency with 
State or local resource or related plans, policies or programs; 
therefore, a response is not required under the Governor's consistency 
review process. Moreover, the involvement of FWS in the determination 
as to whether there would be direct, indirect, or cumulative impacts to 
GRSG does not unlawfully or unconstitutionally infringe on state 
authority or unlawfully delegate BLM's authority over the public lands. 
Rather, in order to provide the most protection

[[Page 61454]]

to GRSG in PHMA, the areas of highest importance for the species, the 
BLM is implement a structure whereby it will seek the input of local 
and national experts on GRSG--the FWS and the Utah Division of Wildlife 
Resources--before making decisions regarding whether to grant an 
exception to an NSO Stipulation to allow surface-disturbing fluid 
mineral development.

Inconsistency With State Law School Trust Land Obligations

    The appeal letter requests that I (BLM Director) reconsider the 
decision of the Acting Utah State Director related to land tenure 
adjustments involving lands owned and managed by the School and 
Institutional Trust Lands Administration. I have reviewed the response, 
as well as the clarifying language that we have added to the amendment 
in response to your consistency review letter, which allows for 
disposal or exchange if there is a net conservation gain or no direct 
or indirect adverse impact to GRSG and its habitat. I believe that the 
state trust land exchanges and selections can be completed under this 
management direction and assure you that we will work with the State of 
Utah to complete such actions as appropriate. Therefore, I respectfully 
deny your (Governor's) appeal on this issue and uphold the Acting Utah 
State Director's determination that your recommendation is inconsistent 
with the goal of the BLM's GRSG conservation strategy range-wide.

Management of Habitat Outside of PHMA

    The State of Utah has recommended that the BLM eliminate the 
management actions in its plans for areas outside of PHMA. After having 
reviewed the information provided with your recommendation, I (BLM 
Director) respectfully deny your (Governor's) appeal and uphold the 
decision of the Acting Utah State Director that your recommendation is 
inconsistent with the goal of the BLM's GRSG range-wide conservation 
strategy. GHMA provides important connectivity and restoration areas 
and its protection is an essential aspect of the BLM's GRSG 
conservation strategy. Additionally, as stated above, the PLUPA 
amendment already incorporates additional flexibility for GHMA in the 
state of Utah because of the limited number of birds in GHMA.

SFA Exemption

    In your (Governor's) appeal letter, you request that I (BLM 
Director) reconsider the request to exempt Utah from SFAs. I have 
reviewed your prior comments on the development of the SFAs and while I 
understand these concerns, I uphold the determination of the Acting 
Utah State Director, that the SFAs are consistent with the BLM's range-
wide GRSG conservation strategy. I also want to reiterate that the SFAs 
are a subset of PHMA, with limited additional management actions to 
ensure that the ``best of the best'' receives the attention it 
deserves. In addition to the recommended mineral withdrawal and the 
fluid mineral NSO stipulation without waivers, exceptions, or 
modifications, these areas will be prioritized for vegetation 
management, review of livestock grazing permits and leases, habitat 
restoration, and fire and fuels actions. Therefore, I respectfully deny 
your (Governor's) appeal on this issue and uphold the Acting Utah State 
Director's determination that your recommendation is inconsistent with 
the goal of the BLM's range-wide GRSG conservation strategy range-wide.

    Authority: 43 CFR 1610.3-2(e).

Byron Loosle,
Acting Assistant Director, Renewable Resources & Planning.
[FR Doc. 2015-25973 Filed 10-9-15; 8:45 am]
 BILLING CODE 4310-22-P