Conservation and Landscape Health, 19583-19604 [2023-06310]

Agencies

• DEPARTMENT OF THE INTERIOR
• Bureau of Land Management

[Federal Register Volume 88, Number 63 (Monday, April 3, 2023)]
[Proposed Rules]
[Pages 19583-19604]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-06310]


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DEPARTMENT OF THE INTERIOR

Bureau of Land Management

43 CFR Parts 1600 and 6100

[LLHQ230000.23X.L117000000.PN0000]
RIN 1004-AE92


Conservation and Landscape Health

AGENCY: Bureau of Land Management, Interior.

ACTION: Proposed rule.

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SUMMARY: The Bureau of Land Management (BLM) proposes new regulations 
that, pursuant to the Federal Land Policy and Management Act of 1976 
(FLPMA), as amended, and other relevant authorities, would advance the 
BLM's mission to manage the public lands for multiple use and sustained 
yield by prioritizing the health and resilience of ecosystems across 
those lands. To ensure that health and resilience, the proposed rule 
provides that the BLM will protect intact landscapes, restore degraded 
habitat, and make wise management decisions based on science and data. 
To support these activities, the proposed rule would apply land health 
standards to all BLM-managed public lands and uses, clarify that 
conservation is a ``use'' within FLPMA's multiple-use framework, and 
revise existing regulations to better meet FLPMA's requirement that the 
BLM prioritize designating and protecting Areas of Critical 
Environmental Concern (ACECs). The proposed rule would add

[[Page 19584]]

to provide an overarching framework for multiple BLM programs to 
promote ecosystem resilience on public lands.

DATES: Please submit comments on this proposed rule on or before June 
20, 2023 or 15 days after the last public meeting. The BLM is not 
obligated to consider comments made after this date in making its 
decision on the final rule.

ADDRESSES: Mail, personal, or messenger delivery: U.S. Department of 
the Interior, Director (630), Bureau of Land Management, 1849 C St. NW, 
Room 5646, Washington, DC 20240, Attention: 1004-AE92.
    Federal eRulemaking Portal: https://www.regulations.gov. In the 
Searchbox, enter ``1004-AE-92'' and click the ``Search'' button. Follow 
the instructions at this website.
    For Comments on Information-Collection Requirements: Written 
comments and recommendations for the information-collection 
requirements should be sent within 30 days of publication of this 
document to www.reginfo.gov/public/do/PRAMain. Find this specific 
information collection by selecting ``Currently under Review--Open for 
Public Comments'' or by using the search function. You may also provide 
a copy of your comments to the BLM's Information Collection Clearance 
Officer via the above address with ``Attention PRA Office,'' or via 
email to blm.gov">[email protected]blm.gov. Please reference OMB Control 
Number 1004-0NEW and RIN 1004-AE92 in the subject line of your 
comments.

FOR FURTHER INFORMATION CONTACT: Stephanie Miller, Deputy Division 
Chief for Wildlife Conservation, at 202-317-0086, for information 
relating to the BLM's national wildlife program or the substance of 
this proposed rule. For information on procedural matters or the 
rulemaking process, you may contact Chandra Little, Regulatory Analyst 
for the Office of Regulatory Affairs, at 202-912-7403. Individuals in 
the United States who are deaf, deafblind, or hard of hearing, or who 
have a speech disability, may dial 711 (TTY, TDD, or TeleBraille) to 
access telecommunications relay services. Individuals outside the 
United States should use the relay services offered within their 
country to make international calls to the point-of-contact in the 
United States.

SUPPLEMENTARY INFORMATION: 

I. Executive Summary
II. Public Comment Procedures
III. Background
IV. Section-by-Section Discussion
V. Procedural Matters

I. Executive Summary

    Under FLPMA, the principles of multiple use and sustained yield 
govern the BLM's stewardship of public lands, unless otherwise provided 
by law. The BLM's ability to manage for multiple use and sustained 
yield of public lands depends on the resilience of ecosystems across 
those lands--that is, the health of the ecosystems and the ability of 
the lands to deliver associated services, such as clean air and water, 
food and fiber, renewable energy, and wildlife habitat. Ensuring 
resilient ecosystems has become imperative, as public lands are 
increasingly degraded and fragmented due to adverse impacts from 
climate change and a significant increase in authorized use. To ensure 
the resilience of renewable resources on public lands for future 
generations, the proposed rule promotes ``conservation'' and defines 
that term to include both protection and restoration activities. It 
also advances tools and processes to enable wise management decisions 
based on science and data.
    The proposed rule provides a framework to protect intact 
landscapes, restore degraded habitat, and ensure wise decisionmaking in 
planning, permitting, and programs, by identifying best practices to 
manage lands and waters to achieve desired conditions. To do so, the 
proposed rule applies the fundamentals of land health and related 
standards and guidelines to all BLM-managed public lands and uses; 
current BLM policy limits their application to grazing authorizations. 
In implementing the fundamentals of land health, the proposed rule 
codifies the need across BLM programs to use high-quality information 
to prepare land health assessments and evaluations and make 
determinations about land health condition. The proposed rule requires 
meaningful consultation during decisionmaking processes with Tribes and 
Alaska Native Corporations on issues that affect their interests, 
including the use of Indigenous Knowledge.
    To support efforts to protect and restore public lands, the 
proposed rule clarifies that conservation is a use on par with other 
uses of the public lands under FLPMA's multiple-use and sustained-yield 
framework. Consistent with how the BLM promotes and administers other 
uses, the proposed rule establishes a durable mechanism, conservation 
leases, to promote both protection and restoration on the public lands, 
while providing opportunities for engaging the public in the management 
of public lands for this purpose. The proposed rule does not prioritize 
conservation above other uses; it puts conservation on an equal footing 
with other uses, consistent with the plain language of FLPMA. Finally, 
the proposed rule would amend the existing ACEC regulations to better 
ensure that the BLM is meeting FLPMA's command to give priority to the 
designation and protection of ACECs. The proposed regulatory changes 
would emphasize ACECs as the principal designation for protecting 
important natural, cultural, and scenic resources, and establish a more 
comprehensive framework for the BLM to identify, evaluate, and consider 
special management attention for ACECs in land use planning. The 
proposed rule emphasizes the role of ACECs in contributing to ecosystem 
resilience by providing for ACEC designation to protect landscape 
intactness and habitat connectivity.

II. Public Comment Procedures

    If you wish to comment on this proposed rule, you may submit your 
comments to the BLM by mail, personal or messenger delivery during 
regular hours (7:45 a.m. to 4:15 p.m.), Monday through Friday, except 
holidays, or through the https://www.regulations.gov website (see the 
ADDRESSES section).
    Please make your comments on the proposed rule as specific as 
possible, limit them to issues pertinent to the proposed rule, explain 
the reason for any changes you recommend, and include any supporting 
documentation. Where possible, your comments should reference the 
specific section or paragraph of the proposal that you are addressing. 
The BLM is not obligated to consider or include in the Administrative 
Record for the final rule comments that we receive after the close of 
the comment period (see DATES) or comments delivered to an address 
other than those listed previously (see ADDRESSES).
    Comments, including names and street addresses of respondents, will 
be available for public review at the address listed under the 
ADDRESSES section. Before including your address, telephone number, 
email address, or other personal identifying information in your 
comment, be advised that your entire comment--including your personal 
identifying information--may be made publicly available at any time. 
Although you can ask us in your comment to withhold your personal 
identifying information from public review, we cannot guarantee that we 
will be able to do so.
    As explained below, this proposed rule includes revisions to 
information-collection requirements that must be approved by the Office 
of Management

[[Page 19585]]

and Budget (OMB). If you wish to comment on the revised information-
collection requirements in this proposed rule, please note that such 
comments must be sent directly to the OMB in the manner described in 
the DATES and ADDRESSES sections above. Please note that due to COVID-
19, electronic submission of comments is recommended.

III. Background

A. The Need for Resilient Public Lands

    The BLM manages more than 245 million acres of public lands, 
roughly one-tenth of the country. The BLM's stewardship of these lands 
and resources is guided by FLPMA, unless otherwise provided by law. 
FLPMA provides the BLM with ample authority and direction to conserve 
ecosystems and other resources and values across the public lands. 
Section 102(a)(8) of FLPMA states the policy of the United States that 
``the public lands be managed in a manner that will protect the quality 
of scientific, scenic, historical, ecological, environmental, air and 
atmospheric, water resource, and archeological values; that, where 
appropriate, will preserve and protect certain public lands in their 
natural condition; that will provide food and habitat for fish and 
wildlife and domestic animals; and that will provide for outdoor 
recreation and human occupancy and use'' (43 U.S.C. 1701(a)(8)). Each 
of these services and values that FLPMA authorizes the BLM to safeguard 
emanates from functioning and productive native ecosystems that supply 
food, water, habitat, and other ecological necessities.
    Furthermore, FLPMA requires that unless ``public land has been 
dedicated to specific uses according to any other provisions of law,'' 
the Secretary, through the BLM, must ``manage the public lands under 
principles of multiple use and sustained yield'' (43 U.S.C. 1732(a)). 
The term ``sustained yield'' means ``the achievement and maintenance in 
perpetuity of a high-level annual or regular periodic output of the 
various renewable resources of the public lands consistent with 
multiple use'' (43 U.S.C. 1702(h)). The BLM recognizes this need for 
ecosystems to continue to provide services and values when declaring, 
in its mission statement, its goal ``to sustain the health, diversity, 
and productivity of public lands for the use and enjoyment of present 
and future generations.'' (blm.gov (emphasis added); see also 43 U.S.C. 
1702(c).) Without ensuring that native ecosystems are functioning and 
resilient, the agency risks failing on this commitment to the future.
    The term ``multiple use'' means, among other things, ``the 
management of the public lands and their various resource values so 
that they are utilized in the combination that will best meet the 
present and future needs of the American people''; ``the use of some 
land for less than all of the resources''; ``a combination of balanced 
and diverse resource uses that takes into account the long-term needs 
of future generations for renewable and nonrenewable resources, 
including, but not limited to, recreation, range, timber, minerals, 
watershed, wildlife and fish, and natural scenic, scientific and 
historical values''; ``harmonious and coordinated management of the 
various resources without permanent impairment of the productivity of 
the land and the quality of the environment with consideration being 
given to the relative values of the resources and not necessarily to 
the combination of uses that will give the greatest economic return or 
the greatest unit output.'' (43 U.S.C. 1702(c)). FLPMA's declaration of 
policy and definitions of ``multiple use'' and ``sustained yield'' 
reveal that conservation is a use on par with other uses under FLPMA. 
The procedural, action-forcing mechanisms in this proposed rule grow 
out of that understanding of multiple use and sustained yield.
    Public lands are increasingly degraded and fragmented. Increased 
disturbances such as invasive species, drought, and wildfire, and 
increased habitat fragmentation are all impacting the health and 
resilience of public lands and making it more challenging to support 
multiple use and the sustained yield of renewable resources. Climate 
change is creating new risks and exacerbating existing 
vulnerabilities.\1\
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    \1\ See generally Carr, et al., A Multiscale Index of Landscape 
Intactness for the Western United States (2016), https://www.sciencebase.gov/catalog/item/57d8779de4b090824ff9acfb; Doherty 
el al., A Sagebrush Conservation Design to Proactively Restore 
America's Sagebrush Biome (Open-file report 2022-1081 USGS), https://pubs.er.usgs.gov/publication/ofr20221081.
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    To address these threats, it is imperative for the BLM to steward 
public lands to maintain functioning and productive ecosystems and work 
to ensure their resilience, that is, to ensure that ecosystems and 
their components can absorb, or recover from, the effects of 
disturbances and environmental change. This proposed rule would pursue 
that goal through protection, restoration, or improvement of essential 
ecological structures and functions. The resilience of public lands 
will determine the BLM's ability to effectively manage for multiple use 
and sustained yield over the long term. The proposed rule, in 
acknowledging this reality, identifies and requires practices to ensure 
that the BLM manages the public lands to allow multiple uses while 
retaining and building resilience to achieve sustained yield of 
renewable resources. This proposed rule is designed to ensure that the 
nation's public lands continue to provide minerals, energy, forage, 
timber, and recreational opportunities, as well as habitat, protected 
water supplies, and landscapes that resist and recover from drought, 
wildfire, and other disturbances. As intact landscapes play a central 
role in maintaining the resilience of an ecosystem, the proposed rule 
emphasizes protecting those public lands with remaining intact, native 
landscapes and restoring others.

B. Management Decisions To Build Resilient Public Lands

    The proposed rule recognizes that the BLM has three primary ways to 
manage for resilient public lands: (1) protection of intact, native 
habitats; (2) restoration of degraded habitats; and (3) informed 
decisionmaking, primarily in plans, programs, and permits. The BLM 
protects intact landscapes using various tools, including designation 
of ACECs. The proposed rule uses the term ``conservation'' in a broader 
sense, however, to encompass both protection and restoration actions. 
Thus, it is not limited to lands allocated to preservation, but applies 
to all BLM-managed public lands and programs. While BLM policy and 
guidance outlined in Manual Sections 6500, 6840, 5000, and 1740 
encourage programs to implement conservation and ecosystem management, 
the BLM does not currently have regulations that promote conservation 
efforts for all resources. This proposed rule is intended to address 
this gap in the Bureau's regulations. The proposed rule would require 
the BLM to plan for and consider conservation as a use on par with 
other uses under FLPMA's multiple use framework and identify the 
practices that ensure conservation actions are effective in building 
resilient public lands. Conservation, in this proposed rule, includes 
management of renewable resources consistent with the fundamentals of 
land health (described below), designed to reach desired future 
conditions through protection, restoration, and other types of 
planning, permitting, and program decisionmaking.
    The proposed rule addresses protection of intact, native 
landscapes. One of the principal tools the BLM has

[[Page 19586]]

available to manage public lands for that type of conservation use is 
the designation of ACECs. ACECs are areas where special management 
attention is needed to protect important historic, cultural, and scenic 
values, fish, or wildlife resources, or other natural systems or 
processes, or to protect human life and safety from natural hazards. 
The proposed rule clarifies and expands existing ACEC regulations to 
better ensure that the BLM is meeting FLPMA's command to give priority 
to the designation and protection of these important areas. These 
proposed regulatory changes support and enhance BLM's protection of 
intact landscapes through ACEC designation and better leverage this 
statutory tool for ecosystem resilience.
    The proposed rule also addresses restoration of degraded 
landscapes. It offers a new tool, conservation leases, that would allow 
the public to directly support durable protection and restoration 
efforts to build and maintain the resilience of public lands. These 
leases would be available to entities seeking to restore public lands 
or provide mitigation for a particular action. They would not override 
valid existing rights or preclude other, subsequent authorizations so 
long as those subsequent authorizations are compatible with the 
conservation use. The proposed rule would establish the process for 
applying for and granting conservation leases, terminating or 
suspending them, determining noncompliance, and setting bonding 
obligations. Conservation leases and ACECs could also provide 
opportunities for co-stewardship with federally recognized Tribes and 
additional protections for cultural resources.
    Conservation leases would be issued for a term consistent with the 
time required to achieve their objective. Most conservation leases 
would be issued for a maximum of 10 years, which term would be extended 
if necessary to serve the purposes for which the lease was first 
issued. Any conservation lease issued for the purposes of providing 
compensatory mitigation would require a term commensurate with the 
impact it is offsetting.
    Further, to ensure the BLM does not limit its ability to build 
resilient public lands when authorizing use, the proposed rule includes 
provisions related to mitigation (i.e., actions to avoid, minimize, and 
compensate for certain residual impacts). The proposed rule reaffirms 
the BLM's adherence to the mitigation hierarchy for all resources. The 
proposed rule also requires mitigation, to the maximum extent possible, 
to address adverse impacts to important, scarce, or sensitive 
resources, and it sets rules for approving third-party mitigation fund 
holders. There are already several existing approved third-party 
mitigation fund holders that may receive and administer funds for the 
mitigation of impacts to natural resources, as well as other funds 
arising from legal, regulatory, or administrative proceedings that are, 
subject to the condition that the amounts be received or administered 
for purposes that further conservation and restoration. The new 
provisions would ensure that the public enjoys the benefits of 
mitigation measures and support those seeking permission to use public 
lands by enhancing mitigation options.

C. Science for Management Decisions To Build Resilient Public Lands

    To support conservation actions and decision making, the proposed 
rule applies the fundamentals of land health (taken verbatim from the 
existing fundamentals of rangeland health at 43 CFR 4180.1 (2005)) and 
related standards and guidelines to all renewable-resource management, 
instead of just to public-lands grazing. Broadening the applicability 
of the fundamentals of land health would ensure BLM programs will more 
formally and consistently consider the condition of public lands during 
decisionmaking processes. Renewable resources on public lands should 
meet the fundamentals of land health overall at the watershed scale. 
The proposed rule recognizes, however, that in determining which 
actions are required to achieve the land health standards and 
guidelines, the BLM must take into account current land uses, such as 
mining, energy production and transmission, and transportation, as well 
as other applicable law. The BLM welcomes comments on how applying the 
fundamentals of land health beyond lands allocated to grazing will 
interact with BLM's management of non-renewable resources.
    To implement the fundamentals of land health, the proposed rule 
directs BLM programs to use high-quality information to prepare land 
health assessments and evaluations and make determinations about the 
causes of failing to achieve land health. Such information is derived 
largely from assessing, inventorying, and monitoring renewable 
resources, as well as Indigenous Knowledge. The resulting data provides 
the means for detecting trends in land health and can be used to make 
management decisions, implement adaptive strategies, and support 
conservation efforts to build ecosystem resilience.

D. Inventory, Evaluation, Designation, and Management of ACECs

    To implement FLPMA's direction to ``give priority to the 
designation and protection of areas of critical environmental 
concern,'' the BLM follows regulatory requirements found at 43 CFR 
1610.7-2 and policy instruction found in Manual Section 1613. The BLM 
currently inventories, evaluates, and designates ACECs requiring 
special management direction as part of the land use planning process. 
The BLM's land use planning process guides BLM resource management 
decisions in a manner that allows the BLM to respond to issues and to 
consider trade-offs among environmental, social, and economic values. 
Further, the planning process requires coordination, cooperation, and 
consultation, and provides other opportunities for public involvement 
that can foster relationships, build trust, and result in durable 
decisionmaking.
    In the initial stages of the planning process, the BLM, through 
inventories and external nominations, identifies any potential new 
ACECs to evaluate for relevance, importance, and the need for special 
management attention. The BLM determines whether such special 
management attention is needed by evaluating alternatives in the land 
use plan and considering additional issues related to the management of 
the proposed ACEC, including public comments received during the 
planning process. Special management measures may also provide an 
opportunity for Tribal co-stewardship. In Approved Resource Management 
Plans, the BLM identifies all designated ACECs and provides the 
management direction necessary to protect the relevant and important 
values for which the ACECs were designated.
    In more than 40 years of applying the procedures found at 43 CFR 
1610.7-2 and in Manual Section 1613, the BLM has identified several 
needed revisions. Additionally, the BLM's procedures for considering 
and designating potential ACECs are currently partially described in 
regulation and partially described in agency policy. The proposed rule 
would codify these procedures in regulation, providing more cohesive 
direction and consistency to the agency's ACEC designation process. The 
proposed rule maintains the general process for inventorying, 
evaluating, designating, and managing ACECs, described here, but makes 
specific changes to clarify and improve that process.

[[Page 19587]]

    As part of this rulemaking, the BLM proposes establishing 
procedures that require consideration of ecosystem resilience, 
landscape-level needs, and rapidly changing landscape conditions in 
designating and managing ACECs. The BLM may also revise the ACEC manual 
and develop an ACEC handbook to integrate the existing rule as well as 
the changes proposed in this rulemaking, if finalized, into policy. The 
BLM would thus provide additional guidance for how to incorporate ACECs 
into resource management decisions in a way that considers trade-offs 
among environmental, social, and economic values during land use 
planning.

E. Statutory Authority

    The Federal Land Policy and Management Act of 1976, as amended, is 
the BLM's organic act; it establishes the agency's mission to manage 
public lands. FLPMA further establishes the policy of the United States 
that public lands be managed in a manner that recognizes the nation's 
need for natural resources from those lands, provides for outdoor 
recreation and other human uses, maintains habitat for fish and 
wildlife, preserves certain public lands in their natural condition, 
and protects the quality of the scientific, scenic, historical, 
ecological, environmental, water-resource, and archaeological values of 
the nation's lands (43 U.S.C. 1701).
    FLPMA governs the BLM's management of the public lands and directs 
the BLM to manage such lands ``under principles of multiple use and 
sustained yield'' (except for lands where another law directs 
otherwise) (43 U.S.C. 1732(a)). Multiple use is defined as the 
management of the public lands and their various resource values so 
that they are utilized to the combination that will best meet the 
present and future needs of the American people; making the most 
judicious use of the land for some or all of these resources or related 
services over areas large enough to provide sufficient latitude for 
periodic adjustments in use to conform to changing needs and 
conditions; the use of some land for less than all of the resources; a 
combination of balanced and diverse resource uses that takes into 
account the long- term needs of future generations for renewable and 
nonrenewable resources, including, but not limited to, recreation, 
range, timber, minerals, watershed, wildlife and fish, and natural 
scenic, scientific and historical values; and harmonious and 
coordinated management of the various resources without permanent 
impairment of the productivity of the land and the quality of the 
environment with consideration being given to the relative values of 
the resources and not necessarily to the combination of uses that will 
give the greatest economic return or the greatest unit output. (43 
U.S.C. 1702(c)). FLPMA also authorizes the Secretary to promulgate 
implementing regulations necessary ``to carry out the purposes'' of the 
Act (43 U.S.C. 1740). The rule proposed here under that authority would 
(1) define and regulate conservation use on the public lands in service 
of FLPMA's multiple-use and sustained-yield mandates; (2) provide for 
third party authorizations to use the public lands for conservation 
under FLPMA section 302(b) (43 U.S.C. 1732(b)); and (3) revise the 
existing regulations implementing FLPMA's direction in sections 201(a) 
and 202(c)(3) (43 U.S.C. 1711(a), 1712(c)(3)) that the BLM shall give 
priority to ACECs. (See also 43 U.S.C. 1701(a)(11) (``it is the policy 
of the United States that--regulations and plans for the protection of 
public land areas of critical environmental concern be promptly 
developed.'')
    Section 2002 of the Omnibus Public Land Management Act of 2009 (16 
U.S.C. 7202) legislatively established the National Landscape 
Conservation System (NLCS), to include public lands carrying certain 
executive or congressional designations and set parameters for the 
management of lands within the system. NLCS lands are subject to 
regulatory requirements like other BLM-managed public lands. The 
regulations proposed here define the term ``conservation'' in a way 
that is distinct from the use of the term in section 2002. Here, 
``conservation'' is a shorthand for the direction in FLPMA's multiple-
use and sustained-yield mandates to manage public lands for resilience 
and future productivity. ``Conservation,'' as the term is defined in 
these regulations, is part of the BLM's mission not only on lands 
within the NLCS, but on all lands subject to FLPMA's multiple-use and 
sustained-yield mandates. At the same time, these regulations also 
would support the BLM's execution of the statutory direction in section 
2002 to ``manage the [NLCS] in a manner that protects the values for 
which the components of the system were designated'' (16 U.S.C. 
7202(c)(2)).

F. Related Executive and Secretarial Direction

    The proposed rule responds to, and advances directives set forth in 
several Executive and Secretary's Orders and related policies and 
strategies. These directives call on the Department of the Interior 
(DOI), and the Federal Government more generally, to use landscape-
scale, science-based, collaborative approaches to natural resource 
management. Recent Presidential and Secretarial directives also 
emphasize the importance of responding to, and mitigating the effects 
of, climate change. Executive Order 13990: Protecting Public Health and 
the Environment and Restoring Science to Tackle the Climate Crisis 
highlights the need to use science to reduce greenhouse gas emissions, 
bolster resilience to the impacts of climate change, and prioritize 
environmental justice. Executive Order 14008: Tackling the Climate 
Crisis at Home and Abroad calls for quick action to build resilience 
against the impacts of climate change, bolster adaptation, and increase 
resilience across all operations, programs, assets, and mission 
responsibilities with a focus on the most pressing climate 
vulnerabilities. Section 211 of Executive Order 14008, calls on Federal 
agencies to develop a Climate Action Plan. In 2021, the DOI completed 
that plan, which creates policy to confront and adapt to the challenges 
that climate change poses to the Department's mission, programs, 
operations, and personnel.
    The Department will use the best available science to take concrete 
steps to adapt to and mitigate climate-change impacts on its resources. 
Secretary's Order 3399: Department-Wide Approach to the Climate Crisis 
and Restoring Transparency and Integrity to the Decision-Making Process 
establishes a Departmental Climate Task Force to prioritize the use of 
the best available science to evaluate the climate change impacts of 
Federal land uses. Multiple directives related to climate change also 
emphasize the importance of collaboration, science, and adaptive 
management as well as the need for landscape-scale approaches to 
resource management. The Departmental Manual chapter on climate-change 
policy (523 DM 1), issued on December 20, 2012, directs DOI bureaus and 
agencies to ``promote landscape-scale, ecosystem-based management 
approaches to enhance the resilience and sustainability of linked human 
and natural systems.'' The Department of the Interior Climate Action 
Plan and Climate Adaptation and Resilience Policy, issued on October 7, 
2021, provides further guidance.
    Secretary's Order 3289: Addressing the Impacts of Climate Change on 
America's Water, Land, and Other Natural and Cultural Resources, issued 
on September 14, 2009, and amended on February 22, 2010, directs DOI 
bureaus and agencies to work together,

[[Page 19588]]

with other Federal, State, Tribal, and local governments, and also with 
private landowners, to develop landscape-level strategies for 
understanding and responding to climate change impacts.
    Secretary's Order 3403: Joint Secretary's Order on Fulfilling the 
Trust Responsibility to Indian Tribes in the Stewardship of Federal 
Lands and Waters, issued November 15, 2021, reiterates the Departments' 
commitment to the United States' trust and treaty obligations as an 
integral part of managing Federal lands. The Order emphasizes that 
``Tribal consultation and collaboration must be implemented as 
components of, or in addition to, Federal land management priorities 
and direction for recreation, range, timber, energy production, and 
other uses, and conservation of wilderness, refuges, watersheds, 
wildlife habitat, and other values.'' The Order also notes the benefit 
of incorporating Tribal expertise and Indigenous Knowledge into Federal 
land and resources management.
    Executive Order 14072, Strengthening the Nation's Forests, 
Communities, and Local Economies, recognizes that healthy forests are 
``critical to the health, prosperity, and resilience of our 
communities.'' It states a policy to pursue science-based, sustainable 
forest and land management; conserve America's mature and old-growth 
forests on Federal lands; invest in forest health and restoration; 
support indigenous traditional ecological knowledge and cultural and 
subsistence practices; honor Tribal treaty rights; and deploy climate-
smart forestry practices and other nature-based solutions to improve 
the resilience of our lands, waters, wildlife, and communities in the 
face of increasing disturbances and chronic stress arising from climate 
impacts.
    The Executive order (E.O.) calls for defining, identifying, and 
inventorying our nation's old and mature forests, then stewarding them 
for future generations to provide clean air and water, sustain plant 
and animal life, and respect their special importance to Tribal 
Nations. This proposed rule would advance all of these objectives.

IV. Section-by-Section Discussion of Proposed Rule

Subpart 6101--General Information

Section 6101.1--Purpose
    This section describes the overall purpose for this proposed rule. 
It is designed to ensure healthy wildlife habitat, clean water, and 
ecosystem resilience so that our public lands can resist and recover 
from disturbances like drought and wildfire. It also aims to enhance 
mitigation options, establishing a regulatory framework for those 
seeking to use the public lands, while also ensuring that the public 
enjoys the benefits of mitigation measures. The proposed rule discusses 
the use of protection and restoration actions, as well as tools such as 
land health evaluations, inventory, assessment, and monitoring. 
Pursuant to Executive Order 14072, Strengthening the Nation's Forests, 
Communities, and Local Economies, and consistent with managing for 
multiple use and sustained yield, the BLM is working on various aspects 
of ensuring that forests on Federal lands, including old and mature 
forests, are managed to: promote their continued health and resilience; 
retain and enhance carbon storage; conserve biodiversity; mitigate the 
risk of wildfires; enhance climate resilience; enable subsistence and 
cultural uses; provide outdoor recreational opportunities; and promote 
sustainable local economic development. While there are ongoing inter-
departmental efforts related to implementing the Executive Order, the 
BLM is also interested in public comments on whether there are 
opportunities for this rule to incorporate specific direction to 
conserve and improve the health and resilience of forests on BLM-
managed lands. What additional or expanded provisions could address 
this issue in this rule? How might the BLM use this rule to foster 
ecosystem resilience of old and mature forests on BLM lands?
Section 6101.2--Objectives
    This section lists the six specific objectives of the proposed 
rulemaking. These objectives were discussed at length earlier in the 
preamble for this proposed rule.
Section 6101.3--Authority
    This section identifies the authorities under which this proposed 
rule will be promulgated, which include the Federal Land Policy and 
Management Act of 1976 (43 U.S.C. 1701 et seq.), as amended, and the 
Omnibus Public Land Management Act of 2009 (16 U.S.C. 7202).
Section 6101.4--Definitions
    This section provides new definitions for concepts such as 
conservation, resilient ecosystems, sustained yield, mitigation, and 
unnecessary or undue degradation, along with others used throughout the 
proposed rule text. These definitions apply only in 43 CFR part 6100.
    The proposed rule would define the term ``best management 
practices'' as state-of-the-art, efficient, appropriate, and 
practicable measures for avoiding, minimizing, rectifying, reducing, 
compensating for, or eliminating impacts over time. This definition 
would provide clarity and consistency as the BLM authorizes restoration 
and compensatory mitigation actions under the proposed rule.
    The proposed rule would define the term ``casual use'' so that, in 
reference to conservation leases, it would clarify that the existence 
of a conservation lease would not in and of itself preclude the public 
from accessing public lands for noncommercial activities such as 
recreation. Some public lands could be temporarily closed to public 
access for purposes authorized by conservation leases, such as 
restoration activities or habitat improvements. However, in general, 
public lands leased for conservation purposes under the proposed rule 
would continue to be open to public use.
    The proposed rule would define ``conservation'' in the context of 
these regulations to mean maintaining resilient, functioning ecosystems 
by protecting or restoring natural habitats and ecological functions. 
The overarching purpose of the proposed rule is to promote the use of 
conservation to ensure ecosystem resilience, and in doing so the 
proposed rule would clarify conservation as a use within the BLM's 
multiple use framework, including in decisionmaking, authorization, and 
planning processes. The proposed rule would include a stated objective 
to promote conservation on public lands, and proposed subpart 6102 
would outline principles, directives, management actions and tools--
including establishing a new tool in conservation leases--to meet this 
objective and fulfill the purpose of the proposed rule. Because 
conservation is the foundational concept for the proposed regulations, 
the proposed definition would provide important guidance and clarity 
for the BLM to meet the spirit and intent of the proposed rule. Within 
the framework of the proposed rule, ``protection'' and ``restoration'' 
together constitute conservation.
    The proposed rule would define the term ``disturbance'' to provide 
the BLM with guidance in identifying and assessing impacts to 
ecosystems, restoring affected public lands, and minimizing and 
mitigating future impacts. Identifying and mitigating disturbances and 
restoring ecosystems are important components of ensuring ecosystem 
resilience on public lands.
    The proposed rule would define the term ``effects'' as the direct, 
indirect,

[[Page 19589]]

and cumulative impacts from a public land use, and would clarify that 
the term should be viewed synonymously with the term ``impacts'' for 
the purposes of the rule.
    The proposed rule would define the term ``high-quality 
information'' so that its use would ensure that the best available 
scientific information underpins decisions and actions that would be 
implemented under the proposed rule to achieve ecosystem resilience. 
The proposed definition would also clarify that Indigenous Knowledge 
can be high-quality information that should be considered alongside 
other information that meets the standards for objectivity, utility, 
integrity, and quality set forth in Federal law and policy.
    The proposed rule would define the terms ``important,'' ``scarce,'' 
and ``sensitive'' resources to provide clarity and consistency in BLM's 
implementation of mitigation requirements, including under the proposed 
rule.
    The proposed rule would define the term ``Indigenous Knowledge'' to 
reflect the Department of the Interior's policies, responsibilities, 
and procedures to respect, and equitably promote the inclusion of, 
Indigenous Knowledge in the Department's decision making, resource 
management, program implementation, policy development, scientific 
research, and other actions.
    The proposed rule would define the term ``intact landscape'' to 
guide the BLM with implementing direction. The proposed rule (Sec.  
6102.1) would require the BLM to identify intact landscapes on public 
lands, manage certain landscapes to protect their intactness, and 
pursue strategies to protect and connect intact landscapes.
    The proposed rule would define ``land enhancement'' to provide 
clarity for interpreting provisions of the proposed rule that would 
authorize the BLM to issue conservation leases for the purpose of 
facilitating land enhancement activities.
    The proposed rule would define ``landscape'' to characterize a 
meaningful area of land and waters on which restoration, protection and 
other management actions will take place. Assessing how BLM's 
management can affect the functionality and resilience of ecosystems 
may require considering resources at the landscape scale.
    The proposed rule would define ``mitigation'' consistent with the 
definition provided by the Council on Environmental Quality regulations 
(40 CFR 1508.20), which identify various ways to address adverse 
impacts to resources, including steps to avoid, minimize, and 
compensate for residual impacts. As a tool to achieve ecosystem 
resilience of public lands, the BLM will generally apply a mitigation 
hierarchy to address impacts to public land resources, seeking to 
avoid, then to minimize, and then to compensate for any residual 
impacts. This definition and the related provisions in this proposed 
rule supplement existing DOI policy, which among other things provides 
boundaries to ensure that compensatory mitigation is durable and 
effective.
    The proposed rule would define the term ``mitigation strategies'' 
to identify documents that identify, evaluate, and communicate 
potential mitigation needs and mitigation measures in advance of 
anticipated public land uses.
    The proposed rule would define the term ``monitoring'' to describe 
a critical suite of activities involving observation and data 
collection to evaluate (1) existing conditions, (2) the effects of 
management actions, or (3) the effectiveness of actions taken to meet 
management objectives. Management for ecosystem resilience requires the 
BLM to understand how proposed use activities impact resource condition 
at many scales. Monitoring is a critical component of BLM's Assessment, 
Inventory and Management (AIM) framework that provides a standardized 
strategy for assessing natural resource condition and trends on BLM 
public lands.
    The proposed rule would define the term ``permittee'' to identify 
those persons with a valid permit, right-of-way grant, lease, or other 
land use authorization from the BLM. The proposed rule largely 
discusses ``permittees'' when identifying the responsibility of parties 
in the context of mitigation and in discussing the opportunities to 
rely on third parties in complying with mitigation requirements.
    The proposed rule would define ``protection'' in the context of the 
overarching purpose of the rule, which is to promote the use of 
conservation measures to ensure ecosystem resilience of public lands. 
``Protection'' is a critical component of conservation, alongside 
restoration, and describes acts or processes to preserve resources and 
keep them safe from degradation, damage, or destruction. The proposed 
rule (Sec.  6101.2) would include a stated objective to promote the 
protection of intact landscapes on public lands, as a critical means to 
achieve ecosystem resilience.
    The proposed rule would define ``public lands'' in order to clarify 
the scope of the proposed rule and its intended application to all BLM-
managed lands and uses. The proposed definition is the same as the 
definition of ``public lands'' that appears at Sec.  6301.5.
    The proposed rule would define ``reclamation'' to identify 
restoration practices intended to achieve an outcome that reflects 
project goals and objectives, such as site stabilization and 
revegetation. While ``reclamation'' is a part of a continuum of 
restoration practices, it contrasts with other actions that are 
specifically designed to recover ecosystems that have been degraded, 
damaged, or destroyed. Reclamation often involves initial practices 
that can prepare projects or sites for further restoration activities. 
The proposed rule (Sec.  6102.4-2) discusses reclamation in the context 
of bonding conservation leases to ensure lessees hold sufficient bond 
amounts to provide for the reclamation of the conservation lease 
area(s) and the restoration of any lands or surface waters adversely 
affected by conservation lease operations.
    The proposed rule would define ``resilient ecosystems'' in the 
context of the rule's foundational precept that BLM's management of 
public lands on the basis of multiple use and sustained yield relies on 
resilient ecosystems. The purpose of the proposed rule is to promote 
the use of conservation to ensure that ecosystems on public lands can 
resist disturbance maintain and regain their function following 
environmental stressors such as drought and wildfire. The proposed rule 
identifies and requires the use of protection and restoration actions, 
as well as tools such as land health evaluations, inventory, 
assessment, and monitoring to ensure BLM is managing for resilient 
ecosystems.
    The proposed rule would define ``restoration'' in the context of 
the overarching purpose of this proposed rule which is to promote the 
use of conservation to ensure the ecosystem resilience of public lands. 
``Restoration'' is a critical component of conservation, alongside 
protection, and describes acts or processes of conservation that assist 
the recovery of an ecosystem that has been degraded, damaged, or 
destroyed. The BLM employs a variety of restoration approaches, 
including mitigation, remediation, revegetation, rehabilitation, and 
reclamation. The proposed rule (Sec.  6102.3) would direct the BLM to 
emphasize restoration across the public lands and requires the 
inclusion of a restoration plan in any new or revised Resource 
Management Plan.
    The proposed rule would use the FLPMA definition of ``sustained 
yield.''

[[Page 19590]]

This proposed rule promotes the use of conservation to achieve 
resilient ecosystems on public lands, which are essential to managing 
for multiple use and sustained yield.
    The proposed rule would define ``unnecessary or undue degradation'' 
in the context of these regulations to mean ``harm to land resources or 
values that is not needed to accomplish a use's goals or is excessive 
or disproportionate.'' This proposed definition is consistent with 
BLM's affirmative obligation under FLPMA to take action to prevent 
unnecessary or undue degradation. The proposed rule would establish 
overarching principles for ecosystem resilience and would direct the 
BLM to implement those principles in part by preventing unnecessary or 
undue degradation in its decisionmaking.

Section 6101.5--Principles for Ecosystem Resilience

    The proposed rule relies upon express direction provided in FLPMA 
to manage public lands on the basis of multiple use and sustained 
yield, and it would establish the principle that the BLM must conserve 
renewable natural resources at a level that maintains or improves 
ecosystem resilience in order to achieve this mission.
    Section 6101.5(d) in the proposed rule would direct authorized 
officers to implement principles of ecosystem resilience by recognizing 
conservation as a land use within the multiple use framework, including 
in decisionmaking, authorization, and planning processes; protecting 
and maintaining the fundamentals of land health; restoring and 
protecting intact public lands; applying the full mitigation hierarchy 
to address impacts to species, habitats, and ecosystems from land use 
authorizations; and preventing unnecessary or undue degradation.

Subpart 6102--Conservation Use To Achieve Ecosystem Resilience

    The proposed rule would clarify that conservation is a use on par 
with other uses of public lands under FLPMA's multiple use framework. 
FLPMA directs the BLM to manage the public lands in a manner that 
protects the quality of ecological, wildlife, recreation, scenic, 
environmental, scientific, air, and water resources, among other 
resources and values, and that protects certain public lands in their 
natural condition. The BLM implements this mandate through land use 
plan designations, allocations, and other planning decisions that 
conserve public land resources and seek to balance conservation use 
with other uses such as energy development and recreation. The BLM also 
implements this mandate in other decisionmaking and management actions 
by promoting conservation use, limiting subsequent authorizations when 
incompatible with conservation use, and mitigating impacts to natural 
resources on public lands. The proposed rule would provide specific 
direction for implementing certain programs in a way that emphasizes 
conservation use and provide new tools and direction for managing 
conservation use to ensure ecosystem resilience on public lands.
Section 6102.1--Protection of Intact Landscapes
    Section 6102.1(a) of the proposed rule would identify the 
principles for protecting intact landscapes in the context of increased 
pressure and increased landscape vulnerability due to climate change 
and other disturbance. Section 6102.1(b) would call on authorized 
officers to prioritize protection of such landscapes.
Section 6102.2--Management To Protect Intact Landscapes
    Authorized officers would be required by Sec.  6102.2(a) and (b) to 
identify and seek to maintain intact landscapes, including by utilizing 
available watershed condition classifications and other available data. 
During the resource management planning process, some tracts of public 
lands should be put into a conservation use, such as by appropriately 
designating or allocating the land, to maintain or improve ecosystem 
resilience. When determining, through planning, whether conservation 
use is appropriate in a given area, authorized officers would determine 
``which, if any'' landscapes to manage to protect intactness, 
necessarily taking into account other potential uses in accordance with 
the BLM's multiple use management approach. (Sec.  6102.2(b)) In 
identifying the areas that are most suitable for management as intact 
landscapes, the BLM could work with communities to identify areas that 
the communities have targeted for strategic growth and development; 
managing those areas for intactness is less likely to be appropriate. 
Section 6102.2(c) would require authorized officers to prioritize 
acquisition of lands or interests in lands that would further protect 
and connect intact landscapes and functioning ecosystems, and Sec.  
6102.2(d) would direct the BLM to develop a national system for 
collecting and tracking disturbance data and to use those data to 
minimize disturbance and improve ecosystem resilience.
Section 6102.3--Restoration
    Restoration is the process of assisting the recovery of an 
ecosystem that has been degraded, damaged, or destroyed. The BLM 
employs a variety of restoration approaches, including mitigation, 
remediation, revegetation, rehabilitation, and reclamation. The 
proposed rule would direct the BLM to emphasize restoration across the 
public lands to enable achievement of its sustained yield mandate and 
would encourage active management to promote restoration when 
appropriate to achieve ecosystem resilience.
Section 6102.3-1--Restoration Prioritization
    Section 6102.3-1 would direct authorized officers to identify 
priority landscapes for restoration at least every five years. 
Landscape prioritization is to be based on land health and watershed 
condition assessments, the likelihood that restoration efforts would 
succeed, partnership opportunities that would enable coordination 
across a broader landscape, benefits to local communities, and 
opportunities also to prevent unnecessary or undue degradation of the 
public lands.
Section 6102.3-2--Restoration Planning
    The proposed rule would require authorized officers to include a 
restoration plan in any new or revised Resource Management Plan, which 
would have to address criteria set forth in Sec.  6102.3-2(a). Included 
in the restoration plan would be actions that, under Sec.  6102.3-2(b), 
would be implemented to achieve set goals and objectives; the actions 
would have to be performed at the appropriate spatial and temporal 
scale, and they would have to address the cause of degradation. 
Authorized offers would plan in 5-year increments, but of course the 
schedule could describe longer term goals and efforts. Actions would be 
coordinated with partners, and the BLM would use conservation leases 
issued under Sec.  6102.4 for the purpose of restoring, managing, and 
monitoring priority landscapes. Locally appropriate best management 
practices would be implemented in accordance with Sec.  6102.3-2(b)(5). 
Authorized officers would also be required to track progress toward 
achieving restoration goals and ensure restoration projects are 
consistent with the land health standards, restoration goals and 
objectives, best management practices, and Resource Management Plan 
restoration plans.

[[Page 19591]]

Section 6102.4--Conservation Leasing
    Section 302(b) of FLPMA, 43 U.S.C. 1732(b), grants the Secretary 
authority to regulate through appropriate instruments the use, 
occupancy, and development of the public lands. As the U.S. Court of 
Appeals for the Tenth Circuit has recognized, the authority granted in 
section 302(b) is considerably broader than the authority granted in 
subject-specific provisions of FLPMA. Greater Yellowstone Coal. v. 
Tidwell, 572 F.3d 1115, 1126-27 (10th Cir. 2009). Under that broad 
authority, the proposed rule would provide a framework for the BLM to 
issue conservation leases on public lands for the purpose of pursuing 
ecosystem resilience through mitigation and restoration. The BLM will 
determine whether a conservation lease is an appropriate mechanism 
based on the context of each proposed conservation use and application, 
not necessarily as a specific allocation in a land use plan. 
Conservation leases could be issued to any qualified individual, 
business, non-governmental organization, or Tribal government. The BLM 
seeks comments on whether State and local governments, including state 
agencies managing fish and wildlife, also should be eligible for 
holding conservation leases.
    Section 6102.4(a)(2) would establish that conservation leases would 
be issued for the necessary amount of time to meet the lease objective 
and specify that a lease issued for restoration or protection purposes 
would be issued for a renewable term of up to 10 years, whereas a lease 
issued for mitigation purposes would be issued for a term commensurate 
with the impact it is mitigating. All conservation leases would be 
reviewed for consistency with lease provisions at regular intervals and 
could be extended beyond their primary terms.
    Section 6102.4(a)(3) would specify that conservation leases may be 
issued either for ``restoration or land enhancement'' or 
``mitigation.'' The proposed rule would only authorize issuance of 
conservation leases for ecosystem protection where that protection is 
related to a restoration or land enhancement project or to support 
mitigation for a particular action. For example, as part of authorizing 
a renewable energy project on public lands, the BLM and the project 
proponent may agree to compensate for loss of wildlife habitat by 
restoring or enhancing other habitat areas. A conservation lease could 
be used to protect those areas. Similarly, the BLM may require 
compensatory mitigation for residual impacts that cannot be avoided. A 
conservation lease could be used to put compensatory mitigation dollars 
to work restoring compromised landscapes.
    This provision is not intended to provide a mechanism for 
precluding other uses, such as grazing, mining, and recreation. 
Conservation leases should not disturb existing authorizations, valid 
existing rights, or state or Tribal land use management. Rather, this 
proposed rule is intended to raise conservation up to be on par with 
other uses under the principles of multiple use and sustained yield.
    The BLM requests public comment on the following aspects of the 
conservation lease proposal.
     Is the term ``conservation lease'' the best term for this 
tool?
     What is the appropriate default duration for conservation 
leases?
     Should the rule constrain which lands are available for 
conservation leasing? For example, should conservation leases be issued 
only in areas identified as eligible for conservation leasing in an RMP 
or areas the BLM has identified (either in an RMP or otherwise) as 
priority areas for ecosystem restoration or wildlife habitat?
     Should the rule clarify what actions conservation leases 
may allow?
     Should the rule expressly authorize the use of 
conservation leases to generate carbon offset credits?
     Should conservation leases be limited to protecting or 
restoring specific resources, such as wildlife habitat, public water 
supply watersheds, or cultural resources?
    Proposed Sec.  6102.4(b) and (c) would set forth the application 
process for acquiring a conservation lease. Applicants would be 
required to submit detailed information regarding the proposed 
conservation use, anticipated impacts and costs, conformance with BLM 
plans, programs and policies, and the schedule for any restoration 
activities. The authorized officer would be able to require additional 
information such as environmental data and proof that the applicant has 
the technical and financial capability to perform the conservation 
activities. Once a conservation lease is issued, Sec.  6102.4(a)(4) 
would preclude the BLM, subject to valid existing rights and applicable 
law, from authorizing other uses of the leased lands that are 
inconsistent with the authorized conservation use. Section 6102.4(a)(5) 
clarifies that the rule itself should not be interpreted to exclude 
public access to leased lands for casual use of such lands, although 
the purposes of a lease may require that limitations to public access 
be put in place in a given instance (for example, temporarily limiting 
public access to newly restored areas).
    Section 6102.4(d) would provide for assignment or transfer of a 
conservation lease if no additional rights would be conveyed and the 
proposed assignee or transferee is qualified to hold the lease.
    Conservation leases would be available on BLM-managed lands that 
are not allocated to inconsistent uses, including lands within units of 
the National Landscape Conservation System. The BLM requests public 
comments on managing conservation leases within the National Landscape 
Conservation System, including whether separate regulations should 
apply to these areas.
    Cost recovery, rents, and fees for conservation leases would be 
governed by existing regulations at 43 CFR 2920.6 and 2920.8. Under 
those regulations, the BLM must charge a rent of at least fair market 
value. The BLM seeks comment on how fair market value would be 
determined in the context of restoration or preservation. Would 
existing methods for land valuation provide valid results? Would lands 
with valuable alternative land uses be prohibitively expensive for 
conservation use? Should the BLM incorporate a public benefit component 
into the rent calculation to account for the benefits of ecosystem 
services?
Section 6102.4-1--Termination and Suspension of Conservation Leases
    Proposed Sec.  6102.4-1 would outline processes for suspending and 
terminating conservation leases. Where the lease holder fails to comply 
with applicable requirements, fails to use the lease for its intended 
purpose, or cannot fulfill the lease's purpose, the BLM would be 
authorized to suspend or terminate a conservation lease. An authorized 
officer would be authorized to issue an immediate temporary suspension 
of the lease upon determination that a noncompliance issue adversely 
affects or poses a threat to public lands or public health. Following 
termination, the lease holder would have sixty days to fulfill its 
obligation to reclaim the site, i.e., return the site to its prior 
condition or as otherwise provided in the lease. That obligation is 
distinct from the goal of restoring the site to its ecological 
potential that underlies the lease.
Section 6102.4-2--Bonding for Conservation Leases
    The proposed rule includes bonding obligations for any conservation 
use that

[[Page 19592]]

involves surface-disturbing activities, with Sec.  6102.4-2 
establishing regulations for conservation lease bonds. The BLM seeks 
public comment on whether this rule should allow authorized officers to 
waive bonding requirements in certain circumstances, such as when a 
Tribal Nation seeks to restore or preserve an area of cultural 
importance to the Tribe. Should the waiver authority be limited to such 
circumstances or are there other circumstances that would warrant a 
waiver of the bonding requirement?
Section 6102.5--Management Actions for Ecosystem Resilience
    Proposed Sec.  6102.5 would set forth a framework for the BLM to 
make wise management decisions based on science and data, including at 
the planning, permitting, and program levels, that would help to ensure 
ecosystem resilience. As part of this framework, authorized officers 
would be required to identify priority watersheds, landscapes, and 
ecosystems that require protection and restoration efforts; develop and 
implement mitigation, monitoring and adaptive management strategies to 
protect resilient ecosystems; and meaningfully consult with Tribes and 
Alaska Native Corporations. Authorized officers would be required to 
include Indigenous Knowledge in decisionmaking and encourage Tribes to 
suggest ways in which Indigenous Knowledge can be used to inform the 
development of alternatives, analysis of effects, and identification of 
mitigation measures.
    Consistent with applicable law and the management of the area, 
authorized officers would also be required to avoid authorizing any use 
of the public lands that permanently impairs ecosystem resilience. 
Permanent impairment of ecosystem resilience would be difficult or 
impossible to avoid, for example, on lands on which the BLM has 
authorized intensive uses, including infrastructure and energy projects 
or mining, or where BLM has limited discretion to condition or deny the 
use. The proposed rule also would require the authorized officer to 
consider a precautionary approach for resource use when the impact on 
ecosystem resilience is unknown or cannot be quantified and provide 
justification for decisions that may impair ecosystem resilience. In 
other words, the proposed rule does not prohibit land uses that impair 
ecosystem resilience; it simply requires avoidance and an explanation 
if such impairment cannot be avoided.
    To ensure the best available science is underpinning all management 
actions, the proposed rule would require the BLM to use national and 
site-based assessment, inventory, and monitoring data, along with other 
high-quality information, as multiple lines of evidence to evaluate 
resource conditions and inform decisionmaking. In particular, proposed 
Sec.  6102.5(c) would require the authorized officer to gather high-
quality data and select relevant indictors, then translate the values 
from those indicators into a watershed condition classification 
framework and document the results. The goal is to use monitoring 
objectives and possibly conceptual models to identify if watersheds are 
in properly functioning condition and how the landscape is functioning 
as a whole.
Section 6102.5-1--Mitigation
    The proposed rule would affirm that the BLM will generally apply 
the mitigation hierarchy of avoid, minimize, and compensate for impacts 
to all public land resources. Further, Sec.  6102.5-1(a) would require 
mitigation to address adverse impacts in the case of important, scarce, 
or sensitive resources, to the maximum extent possible.
    The proposed rule would authorize the BLM to use third-party 
mitigation fund holders to facilitate compensatory mitigation. Proposed 
Sec.  6102.5-1(d) would require authorized officers to establish 
mitigation accounts as appropriate when multiple permittees have 
similar compensatory mitigation requirements, or a single permittee has 
project impacts that require substantial, long-term compensatory 
mitigation. Proposed Sec.  6102.5-1(f) would establish criteria that 
third parties must meet to be approved as mitigation fund holders. 
Among other things, the proposed rule would require potential 
mitigation fund holders to have ``a history of successfully holding and 
managing mitigation, escrow, or similar corporate accounts.'' This 
language is intended to ensure that mitigation fund holders have 
sufficient experience to ensure that they are capable of managing 
funds. The BLM seeks comment on this language. Does it create a barrier 
to entry for new mitigation banks? Is there alternative language that 
would be preferable? The requirement that a third party lack any 
``family connection'' to the mitigating party refers to the leadership 
of the potential mitigation fund holder.

Subpart 6103 Tools for Achieving Ecosystem Resilience

Section 6103.1--Fundamentals of Land Health
    Proposed Sec.  6103.1 would establish four fundamentals of land 
health--watershed function, ecological processes, water quality, and 
wildlife habitat--that would form the basis for land health standards 
and guidelines that the BLM would develop in land use plans under Sec.  
6103.1-1 of this proposed rule. Fundamentals of land health are 
currently addressed in the BLM's grazing regulations for rangeland 
health (43 CFR 4180.1 (2005)). The proposed rule would extend the 
fundamentals of land health to all BLM lands and program areas. The BLM 
is not proposing any changes to the four fundamentals of land health as 
articulated in the applicable grazing regulations.
Section 6103.1-1--Land Health Standards and Guidelines
    Proposed Sec.  6103.1-1 would instruct authorized officers to 
implement land health standards and guidelines that conform to the 
fundamentals of land health across all lands and program areas. This 
includes reviewing land health standards and guidelines during the land 
use planning process and developing new or revising existing land 
health standards and guidelines as necessary, and periodically 
reviewing land health standards and guidelines in conjunction with 
regular land use plan evaluations. Until the authorized officer has an 
opportunity to review and update land health standards and guidelines 
through land use planning processes, Sec.  6103.1-1(a)(1) of the 
proposed rule would direct authorized officers to apply existing land 
health standards and guidelines, including those previously established 
under subpart 4180 of the agency's grazing regulations (fundamentals of 
rangeland health), across all lands and program areas.
    Proposed Sec.  6103.1-1(b) through (d) would require the authorized 
officer to establish goals, objectives, and success indicators to 
ensure that each land health standard can be measured against resource 
conditions and to periodically review authorized uses for consistency 
with the fundamentals of land health. Once land health standards and 
guidelines are established, any action in response to not meeting them 
would be subject to Sec.  6103.1-2(e)(2) and taken in a manner that 
takes into account existing uses and authorizations. Under the proposed 
rule, the BLM may establish national indicators in support of the 
implementation of the fundamentals of land health.
Section 6103.1-2--Land Health Assessments, Evaluations, and 
Determinations
    The proposed rule would require authorized officers to consider 
land

[[Page 19593]]

health assessments, evaluations, and determinations across all program 
areas to inform decisionmaking, including preparing new land health 
assessments, evaluations, and determinations as warranted. Proposed 
Sec.  6103.1-2(c) would provide direction for completing land health 
evaluations, including using multiple lines of evidence and documenting 
supporting information.
    In cases where land health standards are not being achieved, 
proposed Sec.  6103.1-2(d) would require a determination of causal 
factors. If existing management practices are determined to be a causal 
factor, the proposed rule would require the authorized officer to take 
appropriate action to make significant progress toward fulfillment of 
the standards and compliance with the guidelines. That requirement 
would be limited, however, by the caveat that appropriate action must 
be ``consistent with applicable law and the terms and conditions of 
existing authorizations.'' Thus, when determining what actions are 
``appropriate'' to meet the land health standards, the authorized 
officer would have to take into account existing uses and 
authorizations.
Section 6103.2--Inventory, Assessment, and Monitoring
    The proposed rule would require the BLM to complete watershed 
condition classifications as part of all land use planning. It is 
anticipated that watershed condition classifications would frequently 
be completed not by BLM state offices, but by national-level resources, 
such as by the National Operations Center, utilizing standardized 
procedures and existing data and analyses.
    Proposed Sec.  6103.2(b) would clarify that the BLM's inventory of 
public lands includes both landscape components and core indicators 
that address land health fundamentals, and would require the use of 
inventory, assessment, and monitoring information, including 
standardized quantitative monitoring data, remote sensing maps, and 
geospatial analyses, to inform decisionmaking across program areas. 
Proposed Sec.  6103.2(c) would establish principles to ensure that 
inventory, assessment, and monitoring activities are evidence-based, 
standardized, efficient, and defensible.

Subpart 1610--Resource Management Planning

Section 1610.7-2--Designation of Areas of Critical Environmental 
Concern
    The proposed rule includes changes to the land use planning 
regulations to emphasize the role of ACECs as the principal designation 
for public lands where special management attention is required to 
protect important natural, cultural, and scenic resources, and to 
protect against natural hazards. It would also emphasize the 
requirement that the BLM give priority to the identification, 
evaluation, and designation of ACECs during the planning process as 
required by FLPMA and would provide additional clarity and direction 
for complying with this statutory requirement. The proposed rule would 
codify in regulation procedures for considering and designating 
potential ACECs that are currently only partially described in 
regulation and partially described in agency policy.
    Proposed Sec.  1610.7-2(c) would require authorized officers to 
identify areas that may be eligible for ACEC status early in the 
planning process and would highlight the need to target areas for 
evaluation based on resource inventories, internal and external 
nominations, and existing ACEC designations.
    Proposed Sec.  1610.7-2(d) would provide more specificity for 
determining whether an area meets the criteria for ACEC designation of 
relevance, importance, and requiring special management attention. 
Requiring a finding that special management attention is necessary is 
consistent with BLM practice but is not a feature of the existing 
regulations.
    Under the proposed rule Sec.  1610.7-2(d)(2), resources, values, 
systems, or processes may meet the importance criterion if they 
contribute to ecosystem resilience, including by protecting landscape 
intactness and habitat connectivity. The proposed rule would also 
clarify the scope of the importance criterion by striking ``more than 
local significance'' in current Sec.  1610.7-2(a)(2). The BLM has found 
the use of ``local significance'' in the existing definition creates 
confusion because it may be conflated with the separate question under 
NEPA as to whether environmental impacts are ``significant.'' Moreover, 
requiring something more than ``local significance'' is unnecessarily 
restrictive. In the context of ACECs, a wide variety of areas can 
support the BLM's management of public lands by contributing to 
ecosystem resilience.
    Proposed Sec.  1610.7-2(e) would newly emphasize that resources, 
values, systems, processes, or hazards that are found to have relevance 
and importance are likely to warrant special management attention and 
would further identify four considerations when evaluating the need for 
special management attention, to inform potential ACEC designations in 
a land use plan.
    Proposed Sec.  1610.7-2(g) would clarify that land use plans must 
include at least one plan alternative that analyzes in detail all 
proposed ACECs, in order to analyze the consequences of both providing 
and not providing special management attention to identified resources.
    Proposed Sec.  1610.7-2(i) would require authorized officers to 
ensure that inventories used to obtain information and data on the 
relevance and importance of values, resources, systems or processes, 
and natural hazards are kept current, consistent with section 201(a) of 
FLPMA ``so as to reflect changes in conditions and to identify new and 
emerging resource and other values'' (43 U.S.C. 1711(a)). Authorized 
officers (likely, here, BLM State Directors) would be required to 
produce annual reports detailing activity plan status and completed and 
planned implementation actions for designated ACECs.
    Section 1610.7-2(j) would direct that ACEC designations may be 
removed only when special management attention is no longer needed 
because the identified resources are being provided an equal or greater 
level of protection through alternate means or the identified resources 
are no longer present.
    The proposed rule eliminates the existing requirement in current 
Sec.  1610.7-2(b) that the BLM publish a Federal Register notice 
relating to proposed ACECs and allow for 60 days of comment, in 
addition to the other Federal Register publication requirements that 
apply to land use planning. The BLM has found that these Federal 
Register publication requirements do not provide value above and beyond 
the general public involvement process, including through notices in 
the Federal Register, that otherwise applies to land use planning. The 
public would still have opportunity to comment on proposed ACECs 
through that latter process.
    Finally, throughout the proposed rule under Sec.  1610.7-2, the 
term ``value'' would be replaced with the phrase ``resources, values, 
systems, processes, or hazards.'' ``Value'' has been used as a 
shorthand reference to all the items in the longer phrase but doing so 
has created confusion. The proposed rule provides for this change as 
well as other minor changes designed to improve readability throughout 
the rule text.
    The proposed rule provides that ``ACECs shall be managed to protect 
the relevant and important resources for

[[Page 19594]]

which they are designated.'' The BLM is interested in public comment on 
whether additional regulatory text would help the BLM best fulfill its 
mandate under FLPMA section 202(c)(3) to ``give priority to the . . . 
protection of [ACECs].'' Should the regulations further specify how 
ACECs should be managed?

Severability

    The provisions of the proposed rule should be considered 
separately. If any portion of the rule were stayed or invalidated by a 
reviewing court, the remaining elements would continue to provide BLM 
with important and independently effective tools to advance 
conservation on the public lands. Hence, if a court prevents any 
provision of one part of this proposed rule from taking effect, that 
should not affect the other parts of the proposed rule. The remaining 
provisions would remain in force.

V. Procedural Matters

Regulatory Planning and Review (Executive Order 12866 and 13563)

    Executive Order (E.O.) 12866 provides that the Office of 
Information and Regulatory Affairs (OIRA) in the Office of Management 
and Budget will review all significant rules. The OIRA has determined 
that this proposed rule is not significant.
    E.O. 13563 reaffirms the principles of E.O. 12866 while calling for 
improvements in the Nation's regulatory system to promote 
predictability, reduce uncertainty, and use the best, most innovative, 
and least burdensome tools for achieving regulatory ends. The E.O. 
directs agencies to consider regulatory approaches that reduce burdens 
and maintain flexibility and freedom of choice for the public where 
these approaches are relevant, feasible, and consistent with regulatory 
objectives. E.O. 13563 emphasizes further that regulations must be 
based on the best available science and that the rule making process 
must allow for public participation and an open exchange of ideas. The 
BLM has developed this proposed rule in a manner consistent with these 
requirements.
    As outlined in the attached Economic and Threshold Analysis, the 
proposed rule would not have a significant effect on the economy.
    For more detailed information, see the Economic and Threshold 
analysis prepared for this proposed rule. This analysis has been posted 
in the docket for the rule on the Federal eRulemaking Portal: https://www.regulations.gov. In the Searchbox, enter ``RIN 1004-AE92'', click 
the ``Search'' button, open the Docket Folder, and look under 
Supporting Documents.

Regulatory Flexibility Act

    This proposed rule will not have a significant economic effect on a 
substantial number of small entities under the Regulatory Flexibility 
Act (RFA) (5 U.S.C. 601 et seq.). The RFA generally requires that 
Federal agencies prepare a regulatory flexibility analysis for rules 
subject to the ``notice-and-comment'' rulemaking requirements found in 
the Administrative Procedure Act (5 U.S.C. 500 et seq.), if the rule 
would have a significant economic impact, whether detrimental or 
beneficial, on a substantial number of small entities. See 5 U.S.C. 
601-612. Congress enacted the RFA to ensure that government regulations 
do not unnecessarily or disproportionately burden small entities. Small 
entities include small businesses, small governmental jurisdictions, 
and small not-for-profit enterprises.
    For the purpose of conducting its review pursuant to the RFA, the 
BLM believes that the proposed rule would not have a ``significant 
economic impact on a substantial number of small entities,'' as that 
phrase is used in 5 U.S.C. 605.

Congressional Review Act (CRA)

    This proposed rule is not a major rule under 5 U.S.C. 804(2), the 
Congressional Review Act. This proposed rule:
    a. Does not have an annual effect on the economy of $100 million or 
more. The BLM did not estimate the annual benefits that this proposed 
rule would provide to the economy. Please see the Economic and 
Threshold Analysis for this proposed rule for a more detailed 
discussion.
    b. Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions. The proposed rule would benefit small 
businesses by streamlining the BLM's processes.
    c. Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises. The 
proposed rule would not have adverse effects on any of these criteria.

Unfunded Mandates Reform Act (UMRA)

    This proposed rule does not impose an unfunded mandate on State, 
local, or tribal governments, or the private sector of more than $100 
million per year. The proposed rule does not have a significant or 
unique effect on State, local, or tribal governments, or the private 
sector. Under the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1531 et 
seq.), agencies must prepare a written statement about benefits and 
costs, prior to issuing a proposed or final rule that may result in 
aggregate expenditure by State, local, and tribal governments, or the 
private sector, of $100 million or more in any 1 year.
    This proposed rule is not subject to the requirements under the 
UMRA. The proposed rule does not contain a Federal mandate that may 
result in expenditures of $100 million or more for State, local, and 
tribal governments, in the aggregate, or to the private sector in any 
one year. The proposed rule would not significantly or uniquely affect 
small governments. A statement containing the information required by 
the UMRA is not required.

Government Actions and Interference With Constitutionally Protected 
Property Rights Takings (E.O. 12630)

    This proposed rule does not effect a taking of private property or 
otherwise have taking implications under E.O. 12630. Section 2(a) of 
E.O. 12630 identifies policies that do not have takings implications, 
such as those that abolish regulations, discontinue governmental 
programs, or modify regulations in a manner that lessens interference 
with the use of private property. The proposed rule would not interfere 
with private property. A takings implication assessment is not 
required.

Federalism (E.O. 13132)

    Under the criteria in section 1 of E.O. 13132, this proposed rule 
does not have sufficient federalism implications to warrant the 
preparation of a federalism summary impact statement. It does not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government. A 
federalism summary impact statement is not required.

Civil Justice Reform (E.O. 12988)

    This proposed rule complies with the requirements of E.O. 12988. 
Specifically, this proposed rule:
    a. Meets the criteria of section 3(a) requiring that all 
regulations be reviewed to eliminate errors and ambiguity and be 
written to minimize litigation; and
    b. Meets the criteria of section 3(b)(2) requiring that all 
regulations be written

[[Page 19595]]

in clear language and contain clear legal standards.

Consultation and Coordination With Indian Tribes (E.O. 13175 and 
Departmental Policy)

    The Department of the Interior (DOI) strives to strengthen its 
government-to-government relationship with Indian Tribes through a 
commitment to consultation with Indian Tribes and recognition of their 
right to self-governance and tribal sovereignty. We have evaluated this 
proposed rule under the DOI's consultation policy and under the 
criteria in E.O. 13175 and have determined that it has no substantial 
direct effects on federally recognized Indian Tribes, on the 
relationship between the Federal Government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
Government and Indian Tribes, and that consultation under the DOI's 
tribal consultation policy is not required. However, consistent with 
the DOI's consultation policy (52 Departmental Manual 4) and the 
criteria in E.O. 13175, the BLM will consult with federally recognized 
Indian Tribes on any proposal that may have a substantial direct effect 
on the Tribes.

Paperwork Reduction Act

    The Paperwork Reduction Act (PRA) (44 U.S.C. 3501-3521) generally 
provides that an agency may not conduct or sponsor, and not 
withstanding any other provision of law a person is not required to 
respond to, a collection of information, unless it displays a currently 
valid OMB control number. This proposed rule contains information 
collection requirements that are subject to review by the Office of 
Management and Budget (OMB) under the PRA. Collections of information 
include any request or requirement that persons obtain, maintain, 
retain, or report information to an agency, or disclose information to 
a third party or to the public (44 U.S.C. 3502(3) and 5 CFR 1320.3(c)).
    OMB has generally approved the existing information collection 
requirements contained in the BLM's regulations contained in 43 CFR 
subpart 1610 under OMB Control Number 1004-0212. The proposed rule 
would not result in any new or revised information collection 
requirements that are currently approved under that OMB Control Number.
    For the reasons set out in the preamble, the BLM proposes to amend 
43 CFR by creating part 6100 which would result in new information 
collection requirements that require approval by OMB. The information 
collection requirement contained in part 6100 will allow the BLM to 
issue a conservation lease to qualified individuals or businesses or 
State, local, or Tribal governments for the purpose of ensuring 
ecosystem sustainability. The proposed new information collection 
requirements contained in this proposed rule are discussed below.

New Information Collection Requirements

    Section 6102.4 (b) and (c)--Conservation Leasing: Applications for 
conservation leases shall be filed with the Bureau of Land Management 
office having jurisdiction over the public lands covered by the 
application. Applications for conservation leases shall include a 
description of the proposed conservation use in sufficient detail to 
enable the authorized officer to evaluate the feasibility of the 
proposed conservation use, the impacts, if any, on the environment, the 
public or other benefits from the land use, the approximate cost of the 
proposed conservation use, any threat to public health and safety posed 
by the proposed use, and whether the proposed use is, in the opinion of 
the applicant, in conformance with the Bureau of Land Management plans, 
programs, and policies for the public lands covered by the proposed 
use. The description shall include but not be limited to:
     Details of the proposed uses and activities;
     A description of all facilities for which authorization is 
sought, including access needs and special types of easements that may 
be needed;
     A map of sufficient scale to allow the required 
information to be legible as well as a legal description of primary and 
alternative project locations;
     Schedule for restoration or land improvement activities; 
and
     Name and legal mailing address of the applicant.
    Section 6102.4(c)(1)(E)--Conservation Leasing (additional 
information): After review of the project description, the authorized 
officer may require the applicant to provide additional studies or to 
submit additional environmental data if such data are necessary for the 
BLM to decide whether to issue, issue with modification, or deny the 
proposed conservation use. An application for the use of public lands 
may require documentation or proof of application for additional 
private, State, local or other Federal agency licenses, permits, 
easements, certificates, or other approval documents. The authorized 
officer may require evidence that the applicant has, or prior to 
commencement of conservation activities will have the technical and 
financial capability to operate, maintain, and terminate the authorized 
land use.
    Section 6102.4-1(d)(3)--Termination and Suspension of Conservation 
Leases: Upon determination that there is noncompliance with the terms 
and conditions of a conservation lease which adversely affects land or 
public health or safety, or impacts ecosystem sustainability, the 
authorized officer shall issue an immediate temporary suspension. Any 
time after an order of suspension has been issued, the holder may file 
with the authorized officer a request for permission to resume. The 
request shall be in writing and shall contain a statement of the facts 
supporting the request.
    Section 6102.4-2(a)--Bonding for Conservation Leases: Prior to the 
commencement of surface-disturbing activities, the conservation lease 
holder shall submit a surety or a personal bond, conditioned upon 
compliance with all the terms and conditions of the conservation 
lease(s) covered by the bond.
    Section 6102.5-1(e)--Mitigation--Approval of third parties as 
mitigation fund holders: Sec.  6102.5-1(e) would allow in certain 
limited circumstances authorized officers to approve third parties as 
mitigation fund holders to establish mitigation accounts for use by 
entities granted land use authorizations by the BLM. The authorized 
officer will approve the use of a mitigation account by a permittee 
only if a mitigation fund holder has a written agreement with the BLM.
    Section 6102.5-1(g)--Mitigation--Approval of third parties as 
mitigation fund holders/State and local government agencies: State and 
local government agencies are limited in their ability to accept, 
manage, and disburse funds for the purpose outlined in Sec.  6102.5-1 
and generally should not be approved by the BLM to hold mitigation 
funds for compensatory mitigation sites on public or private lands. An 
exception may be made where a government agency is able to demonstrate, 
to the satisfaction of the BLM, that they are acting as a fiduciary for 
the benefit of the mitigation project or site, essentially as if they 
are a third party, and can show that they have the authority and 
perform the duties described in Sec.  6102.5-1.
    The information collection requirements contained in this proposed 
rule are needed to ensure that accountability through restoration 
monitoring and tracking is carried out effectively and that project 
goals are being met. The estimated annual

[[Page 19596]]

information collection burdens for this proposed rule are outlined 
below:
    Title of Collection: Ecosystem Resilience and Conservation (43 CFR 
part 6100).
    OMB Control Number: 1004-0NEW.
    Form Number: None.
    Type of Review: New collection of information (Request for a new 
OMB Control Number).
    Respondents/Affected Public: Private sector businesses; Not-for-
profit organizations; and State, local, or Tribal governments.
    Respondent's Obligation: Required to Obtain or Retain a Benefit.
    Frequency of Collection: On occasion.
    Estimated Completion Time per Response: Varies from 5 hours to 240 
hours per response, depending on activity.
    Number of Respondents: 37.
    Annual Responses: 37.
    Annual Burden Hours: 1,380.
    Annual Burden Cost: $0.
    If you want to comment on the information-collection requirements 
of this proposed rule, please send your comments and suggestions on 
this information-collection by the date indicated in the DATES and 
ADDRESSES sections as previously described.

National Environmental Policy Act (NEPA)

    The BLM intends to apply the Department Categorical Exclusion (CX) 
at 43 CFR 46.210(i) to comply with the National Environmental Policy 
Act. This CX covers policies, directives, regulations, and guidelines 
that are of an administrative, financial, legal, technical, or 
procedural nature or whose environmental effects are too broad, 
speculative, or conjectural to lend themselves to meaningful analysis 
and will later be subject to the NEPA process, either collectively or 
case-by-case. The BLM plans to document the applicability of the CX 
concurrently with development of the final rule.

Actions Concerning Regulations That Significantly Affects Energy 
Supply, Distribution, or Use (E.O. 13211)

    Federal agencies must prepare and submit to OMB a Statement of 
Energy Effects for any proposed significant energy action. A 
``significant energy action'' is defined as any action by an agency 
that: (1) Is a significant regulatory action under Executive Order 
12866, or any successor order; (2) Is likely to have a significant 
adverse effect on the supply, distribution, or use of energy; or (3) Is 
designated by the Administrator of OIRA as a significant energy action. 
This proposed rule is not a significant action within the meaning of 
Executive Order 12866 or any successor order. This proposed rule does 
not affect energy supply or distribution.

Clarity of This Regulation (Executive Orders 12866, 12988 and 13563)

    We are required by Executive Orders 12866 (section 1(b)(12)), 12988 
(section 3(b)(1)(B)), and 13563 (section 1(a)), and by the Presidential 
Memorandum of June 1, 1988, to write all rules in plain language. This 
means that each rule must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use common, everyday words and clear language rather than 
jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help the BLM revise the proposed rule, your comments should be 
as specific as possible. For example, you should tell us the numbers of 
the sections or paragraphs that you find unclear, which sections or 
sentences are too long, the sections where you feel lists or tables 
would be useful, etc.

Authors

    The principal authors of this proposed rule are: Stephanie Miller, 
BLM Deputy Division Chief, Wildlife Conservation; Darrin King, BLM 
Division of Regulatory Affairs; Chandra Little, BLM Division of 
Regulatory Affairs, assisted by the DOI Office of the Solicitor.

Laura Daniel-Davis,
Principal Deputy Assistant Secretary for Land and Minerals Management.

List of Subjects

43 CFR Part 1600

    Administrative practice and procedure, Coal, Environmental impact 
statements, Environmental protection, Intergovernmental relations, 
Public lands, Preservation and conservation.

43 CFR Part 6100

    Ecosystem resilience, Conservation use, Land health, and 
Restoration.

    Accordingly, for the reasons set out in the preamble, the Bureau of 
Land Management proposes to amend 43 CFR part 1600 and add a new 43 CFR 
part 6100 as set forth below:

PART 1600--PLANNING, PROGRAMMING, BUDGETING

0
1. The authority citation for part 1600 continues to read as follows:

    Authority: 43 U.S.C. 1711-1712

0
2. Amend Sec.  1610.7-2 to read as follows:


Sec.  1610.7-2  Designation of areas of critical environmental concern.

    (a) An Area of Critical Environmental Concern (ACEC) designation is 
the principal BLM designation for public lands where special management 
is required to protect important natural, cultural, and scenic 
resources, systems, or processes, or to protect life and safety from 
natural hazards. The BLM designates ACECs when issuing a decision to 
approve a Resource Management Plan, plan revision, or plan amendment. 
ACECs shall be managed to protect the relevant and important resources 
for which they are designated.
    (b) In the land use planning process, authorized officers must 
identify, evaluate, and give priority to areas that have potential for 
designation and management as ACECs. Identification, evaluation, and 
priority management of ACECs shall be considered during the development 
and revision of Resource Management Plans and during amendments to 
Resource Management Plans when such action falls within the scope of 
the amendment (see Sec. Sec.  1610.4-1 through 1610.4-9).
    (c) The Field Manager must identify areas to evaluate for 
eligibility as ACECs early in the planning process, including by 
considering the following sources:
    (1) The Field Manager must analyze inventory data to determine 
whether there are areas containing resources, values, systems, 
processes, or hazards eligible for designation as ACECs.
    (2) The Field Manager must evaluate existing ACECs when plans are 
revised or when designations of ACECs are within the scope of an 
amendment, including considering potential changes to boundaries and 
management.
    (3) The Field Manager must seek nominations for ACECs, during 
public scoping, from the public, State and local governments, Indian 
tribes, and other Federal agencies (see Sec.  1610.2(c)) when 
developing new plans or revising existing plans, or when designations 
of ACECs are within the scope of a plan amendment. If nominations are 
received outside the planning process, interim management may be 
evaluated, considered, and implemented to protect relevant and 
important values until the BLM completes a planning process to 
determine whether to designate the area

[[Page 19597]]

as an ACEC, in conformance with the current Resource Management Plan.
    (d) To be designated as an ACEC, an area must meet the following 
criteria:
    (1) Relevance. The area contains resources with significant 
historic, cultural, or scenic value; a fish or wildlife resource; a 
natural system or process; or a natural hazard potentially impacting 
life and safety.
    (2) Importance. The resources, values, systems, processes, or 
hazards have substantial importance, which generally requires that they 
have qualities of special worth, consequence, meaning, distinctiveness, 
or cause for concern. Authorized officers may consider the national or 
local importance, subsistence value, or regional contribution of a 
resource, value, system, or process. Resources, values, systems, or 
processes may have substantial importance if they contribute to 
ecosystem resilience, including by protecting intact landscapes and 
habitat connectivity. A natural hazard can be important if it is a 
significant threat to human life and safety.
    (3) Special Management Attention. The resources, values, systems, 
processes, or hazards require special management attention. ``Special 
management attention'' means management prescriptions that:
    (i) Conserve, protect, and restore relevant and important 
resources, values, systems, processes, or that protect life and safety 
from natural hazards; and
    (ii) Would not be prescribed if the relevant resources, values, 
systems, processes, or hazards were not present.
    (e) Resources, values, systems, processes, or hazards that are 
found to have relevance and importance are likely to require special 
management attention. In evaluating the need for special management 
attention, the Field Manager must consider:
    (1) Whether highlighting the resources with the designation will 
protect or increase the vulnerability of the resources, and if so, how 
to tailor a designation to maximize protection and minimize unintended 
impacts;
    (2) The values of other resource uses in the plan;
    (3) The feasibility of managing the designation; and
    (4) The relationship to other types of designations available.
    (f) The Field Manager must identify the boundaries of proposed 
ACECs to encompass the relevant and important resources, values, 
systems, processes, or hazards, and any areas required for the special 
management attention needed to provide protection for the relevant and 
important resources, values, systems, processes, or hazards.
    (g) Planning documents must include at least one alternative that 
analyzes in detail all proposed ACECs to provide for informed 
decisionmaking on the trade-offs associated with ACEC designation.
    (h) The approved plan shall list all designated ACECs, identify 
their relevant and important resources, values, systems, processes, or 
hazards, and include the special management attention, including 
mitigating measures, identified for each designated ACEC.
    (i) The State Director shall:
    (1) Ensure that inventories used to obtain information and data on 
relevance and importance are kept current. Monitoring shall be 
performed and inventories shall be updated at intervals appropriate to 
the sensitivity of the relevant and important resources, values, 
systems, processes, or hazards, to ensure that data are available to 
identify trends and emerging issues during plan evaluations (see Sec.  
1610.4-9).
    (2) Prioritize acquisition of inholdings within ACECs and adjacent 
or connecting lands identified as holding related relevant and 
important resources, values, systems, processes, or hazards as the 
designated ACEC.
    (3) Provide annual reports within the first quarter of each fiscal 
year identifying for each designated ACEC within the State:
    (i) Whether or not an activity plan is deemed necessary and, if so, 
whether it has been prepared;
    (ii) Implementation actions accomplished during the previous fiscal 
year, highlighting those actions contributing to the conservation, 
enhancement, or protection of the resources, values, systems, or 
processes, or protection from natural hazards; and
    (iii) Scheduled implementation measures for the ensuing fiscal 
year.
    (j) The State Director, through the land use planning process, may 
remove the designation of an ACEC, in whole or in part, only when:
    (1) The State Director finds that special management attention is 
not needed because another legally enforceable mechanism provides an 
equal or greater level of protection; or
    (2) The State Director finds that the resources, values, systems, 
processes, or natural hazards of relevance and importance are no longer 
present, cannot be recovered, or have recovered to the point where 
special management is no longer necessary. The findings must be 
supported by data or documented changes on the ground.
0
3. Add part 6100 to read as follows:

PART 6100--ECOSYSTEM RESILIENCE

Subpart 6101--General Information
Sec.
6101.1 Purpose.
6101.2 Objectives.
6101.3 Authority.
6101.4 Definitions.
6101.5 Principles for ecosystem resilience.
Subpart 6102--Conservation Use to Achieve Ecosystem Resilience
Sec.
6102.1 Protection of intact landscapes.
6102.2 Management to protect intact landscapes.
6102.3 Restoration.
6102.3-1 Restoration prioritization.
6102.3-2 Restoration planning.
6102.4 Conservation leases.
6102.4-1 Termination and suspension of conservation leases.
6102.4-2 Building for conservation leasing.
6102.5 Management actions for ecosystem resilience.
6102.5-1 Mitigation.
Subpart 6103--Tools for Achieving Ecosystem Resilience
Sec.
6103.1 Fundamentals of land health.
6103.1-1 Land health standards and guidelines.
6103.1-2 Land health assessments, evaluations and determinations.
6103.2 Inventory, assessment and monitoring.

    Authority: 16 U.S.C. 7202; 43 U.S.C. 1701 et seq.

Subpart 6101--General Information


Sec.  6101.1  Purpose.

    The BLM's management of public lands on the basis of multiple use 
and sustained yield relies on healthy landscapes and resilient 
ecosystems. The purpose of this part is to promote the use of 
conservation to ensure ecosystem resilience. This part discusses the 
use of protection and restoration actions, as well as tools such as 
land health evaluations, inventory, assessment, and monitoring.


Sec.  6101.2  Objectives.

    The objectives of these regulations are to:
    (a) Achieve and maintain ecosystem resilience when administering 
Bureau programs; developing, amending, and revising land use plans; and 
approving uses on the public lands;
    (b) Promote conservation by protecting and restoring ecosystem 
resilience and intact landscapes;
    (c) Integrate the fundamentals of land health and related standards 
and guidelines into resource management;
    (d) Incorporate inventory, assessment, and monitoring principles 
into decisionmaking and use this

[[Page 19598]]

information to identify trends and implement adaptive management 
strategies;
    (e) Accelerate restoration and improvement of degraded public lands 
and waters to properly functioning and desired conditions; and
    (f) Ensure that ecosystems and their components can absorb, or 
recover from, the effects of disturbances or environmental change 
through conservation, protection, restoration, or improvement of 
essential structures, functions, and redundancy of ecological patterns 
across the landscape.


Sec.  6101.3  Authority.

    These regulations are issued under the authority of the Federal 
Land Policy and Management Act of 1976 (43 U.S.C. 1701 et seq.) as 
amended; and section 2002 of the Omnibus Public Land Management Act of 
2009 (16 U.S.C. 7202).


Sec.  6101.4  Definitions.

    As used in this part, the term:
    Best management practices means state-of-the-art, efficient, 
appropriate, and practicable measures for avoiding, minimizing, 
rectifying, reducing, compensating for, or eliminating impacts over 
time.
    Casual use means any short-term, noncommercial activity that does 
not cause appreciable damage or disturbance to the public lands or 
their resources or improvements and that is not prohibited by closure 
of the lands to such activities.
    Conservation means maintaining resilient, functioning ecosystems by 
protecting or restoring natural habitats and ecological functions.
    Disturbance means a discrete event in time that affects the 
structure and function of an ecosystem. Disturbances may be viewed as 
``characteristic'' when ecosystems and species have evolved to 
accommodate the disturbance attributes or ``uncharacteristic'' when the 
attributes are outside an established range of variation.
    Effects means the direct, indirect, and cumulative impacts from a 
public land use; effects and impacts as used in this rule are 
synonymous.
    High-quality information means information that promotes reasoned, 
fact-based agency decisions. Information relied upon or disseminated by 
BLM must meet the standards for objectivity, utility, integrity, and 
quality set forth in applicable federal law and policy. Indigenous 
knowledge may qualify as high-quality information when that knowledge 
is authoritative, consensually obtained, and meets the standards for 
high-quality information.
    Important, Scarce, or Sensitive resources:
    (1) Important resources means resources that the BLM has determined 
to warrant special consideration, consistent with applicable law.
    (2) Scarce resources means resources that are not plentiful or 
abundant and may include resources that are experiencing a downward 
trend in condition.
    (3) Sensitive resources means resources that are delicate and 
vulnerable to adverse change, such as resources that lack resilience to 
changing circumstances.
    Indigenous Knowledge (IK) means a body of observations, oral and 
written knowledge, practices, and beliefs developed by Tribes and 
Indigenous Peoples through interaction and experience with the 
environment. IK is applied to phenomena across biological, physical, 
social, cultural, and spiritual systems. IK can be developed over 
millennia, continues to develop, and includes understanding based on 
evidence acquired through direct contact with the environment and long-
term experiences, as well as extensive observations, lessons, and 
skills passed from generation to generation. IK is developed by 
Indigenous Peoples including, but not limited to, Tribal Nations, 
American Indians, Alaska Natives, and Native Hawaiians.
    Intact landscape means an unfragmented ecosystem that is free of 
local conditions that could permanently or significantly disrupt, 
impair, or degrade the landscape's structure or ecosystem resilience, 
and that is large enough to maintain native biological diversity, 
including viable populations of wide-ranging species. Intact landscapes 
have high conservation value, provide critical ecosystem functions, and 
support ecosystem resilience.
    Land enhancement means any infrastructure or other use related to 
the public lands that is designed to improve production of forage; 
improve vegetative composition; direct patterns of use to improve 
ecological condition; provide water; stabilize soil and water 
conditions; promote effective wild horse and burro management; or 
restore, protect, and improve the condition of land health or fish and 
wildlife habitat. The term includes, but is not limited to, structures, 
treatment projects, and the use of mechanical devices or landscape 
modifications achieved through mechanical means.
    Landscape means a network of contiguous or adjacent ecosystems 
characterized by a set of common management concerns or conditions. The 
landscape is not defined by the size of the area, but rather by the 
interacting elements that are relevant and meaningful in a management 
context. Areas described in terms of aquatic conditions, such as 
watersheds or ecoregions, may also be ``landscapes.''
    Mitigation means:
    (1) Avoiding the impacts of a proposed action by not taking a 
certain action or parts of an action;
    (2) Minimizing impacts by limiting the degree or magnitude of the 
action and its implementation;
    (3) Rectifying the impact of the action by repairing, 
rehabilitating, or restoring the affected environment;
    (4) Reducing or eliminating the impact over time by preservation 
and maintenance operations during the life of the action; and
    (5) Compensating for the impact of the action by replacing or 
providing substitute resources or environments. In practice, the 
mitigation sequence is often summarized as avoid, minimize, and 
compensate. The BLM generally applies mitigation hierarchically: first 
avoid, then minimize, and then compensate for any residual impacts from 
proposed actions.
    Mitigation strategies means documents that identify, evaluate, and 
communicate potential mitigation needs and mitigation measures in a 
geographic area, at relevant scales, in advance of anticipated public 
land uses.
    Monitoring means the periodic observation and orderly collection of 
data to evaluate:
    (1) Existing conditions;
    (2) The effects of management actions; or
    (3) The effectiveness of actions taken to meet management 
objectives.
    Permittee means any person that has a valid permit, right-of-way 
grant, lease, or other land use authorization from the BLM.
    Protection is the act or process of conservation by preserving the 
existence of resources while keeping resources safe from degradation, 
damage, or destruction.
    Public lands means any lands or interests in lands owned by the 
United States and administered by the Secretary of the Interior through 
the BLM without regard to how the United States acquired ownership.
    Reclamation means, when used in relation to individual project 
goals and objectives, practices intended to achieve an outcome that 
reflects the final goal to restore the character and productivity of 
the land and water. Components of reclamation include, as applicable:
    (1) Isolating, controlling, or removing of toxic or deleterious 
substances;

[[Page 19599]]

    (2) Regrading and reshaping to conform with adjacent landforms, 
facilitate revegetation, control drainage, and minimize erosion;
    (3) Rehabilitating fisheries or wildlife habitat;
    (4) Placing growth medium and establishing self-sustaining 
revegetation;
    (5) Removing or stabilizing buildings, structures, or other support 
facilities;
    (6) Plugging drill holes and closing underground workings; and
    (7) Providing for post-activity monitoring, maintenance, or 
treatment.
    Resilient ecosystems means ecosystems that have the capacity to 
maintain and regain their fundamental structure, processes, and 
function when altered by environmental stressors such as drought, 
wildfire, nonnative invasive species, insects, and other disturbances.
    Restoration means the process or act of conservation by assisting 
the recovery of an ecosystem that has been degraded, damaged, or 
destroyed.
    Sustained yield means the achievement and maintenance in perpetuity 
of a high-level annual or regular periodic output of the various 
renewable resources of BLM-managed lands without permanent impairment 
of the productivity of the land. Preventing permanent impairment means 
that renewable resources are not depleted, and that desired future 
conditions are met for future generations. Ecosystem resilience is 
essential to BLM's ability to manage for sustained yield.
    Unnecessary or Undue degradation means harm to land resources or 
values that is not needed to accomplish a use's goals or is excessive 
or disproportionate.


Sec.  6101.5  Principles for ecosystem resilience.

    Except where otherwise provided by law, public lands must be 
managed under the principles of multiple use and sustained yield.
    (a) To ensure multiple use and sustained yield, the BLM's 
management must conserve the quality of scientific, scenic, historical, 
ecological, environmental, air and atmospheric, water resource, and 
archaeological values; preserve and protect certain public lands in 
their natural condition (including ecological and environmental 
values); maintain the productivity of renewable natural resources in 
perpetuity; and consider the long-term needs of future generations, 
without permanent impairment of the productivity of the land.
    (b) The BLM must conserve renewable natural resources at a level 
that maintains or improves future resource availability and ecosystem 
resilience.
    (c) Authorized officers must implement the foregoing principles 
through:
    (1) Conservation as a land use within the multiple use framework, 
including in decisionmaking, authorization, and planning processes;
    (2) Protection and maintenance of the fundamentals of land health 
and ecosystem resilience;
    (3) Restoration and protection of public lands to support ecosystem 
resilience;
    (4) Use of the full mitigation hierarchy to address impacts to 
species, habitats, and ecosystems from land use authorizations; and
    (5) Prevention of unnecessary or undue degradation.

Subpart 6102--Conservation Use to Achieve Ecosystem Resilience


Sec.  6102.1  Protection of intact landscapes.

    (a) The BLM must manage certain landscapes to protect their 
intactness. This requires:
    (1) Maintaining intact ecosystems through conservation actions.
    (2) Managing lands strategically for compatible uses while 
conserving intact landscapes, especially where development or 
fragmentation is likely to occur that will permanently impair ecosystem 
resilience on public lands.
    (3) Maintaining or restoring resilient ecosystems through habitat 
and ecosystem restoration projects that are implemented over broader 
spatial and longer temporal scales. (4) Coordinating and implementing 
actions across BLM programs, offices, and partners to protect intact 
landscapes.
    (5) Pursuing management actions that maintain or mimic 
characteristic disturbance.
    (b) Authorized officers will seek to prioritize actions that 
conserve and protect intact landscapes in accordance with Sec.  6101.2.


Sec.  6102.2  Management to protect intact landscapes.

    (a) When revising a Resource Management Plan under part 1600 of 
this chapter, authorized officers must use available data, including 
watershed condition classifications, to identify intact landscapes on 
public lands that will be protected from activities that would 
permanently or significantly disrupt, impair, or degrade the structure 
or functionality of intact landscapes.
    (b) During the planning process, authorized officers must determine 
which, if any, tracts of public land will be put to conservation use. 
In making such determinations, authorized officers must consider 
whether:
    (1) The BLM can establish partnerships to work across Federal and 
non-Federal lands to protect intact landscapes;
    (2) Multiple lines of evidence indicate that active management will 
improve the resilience of the landscape through reducing the likelihood 
of uncharacteristic disturbance;
    (3) The BLM can work with communities to identify geographic areas 
important for their strategic growth and development in order to allow 
for better identification of the most suitable areas to protect intact 
landscapes;
    (4) The BLM can identify opportunities for co-stewardship with 
Tribes;
    (5) Conservation leases (see Sec.  6102.4) can be issued to manage 
and monitor areas within intact landscapes with high conservation value 
and complex, long-term management needs; and
    (6) Standardized quantitative monitoring and best available 
information is used to track the success of ecological protection 
activities (see Sec.  6103.3).
    (c) When determining whether to acquire lands or interests in lands 
through purchase, donation, or exchange, authorized officers must 
prioritize the acquisition of lands or interests in lands that would 
further protect and connect intact landscapes and functioning 
ecosystems.
    (d) Authorized officers must collect and track disturbance data 
that indicate the cumulative disturbance and direct loss of ecosystems 
at a watershed scale resulting from BLM-authorized activities. This 
information must be included in a national tracking system. The BLM 
must use the national tracking system to strategically minimize surface 
disturbance, including identifying areas appropriate for conservation 
and other uses in the context of threats identified in watershed 
condition assessments, to analyze landscape intactness and 
fragmentation of ecosystems, and to inform conservation actions.


Sec.  6102.3  Restoration.

    (a) The BLM must emphasize restoration across the public lands to 
enable achievement of its multiple use and sustained yield mandate.
    (b) In determining the restoration actions required to achieve 
recovery of ecosystems and promote resilience, the BLM must consider 
the degree of ecosystem degradation and develop restoration goals and 
objectives designed to achieve ecosystem resilience and land health 
standards (see Sec.  6103.1-1).

[[Page 19600]]

    (c) The BLM should employ active management to promote restoration. 
Over the long-term, restoration actions must be durable, self-
sustaining, and expected to persist based on the resource objective.


Sec.  6102.3-1  Restoration prioritization.

    (a) Not less than every five years, authorized officers must 
identify priority landscapes for restoration. In doing so, authorized 
officers must consider:
    (1) Results from land health assessments, watershed condition 
classifications and other best available information (see subpart 6103 
of this part);
    (2) The likelihood of success of restoration activities to achieve 
resource or conservation objectives;
    (3) The possibility of implementing a series of coordinated 
restoration actions benefiting multiple resources at scales 
commensurate to the cause of the degradation in areas where the BLM 
manages sufficient lands or partnerships exist to work across 
jurisdictions;
    (4) Where restoration actions will have the greatest social, 
economic, and environmental justice impacts for local communities; and
    (5) Where restoration can concurrently or proactively prevent 
unnecessary or undue degradation, such as ecosystem conversion, 
fragmentation, habitat loss, or other negative outcomes that 
permanently impair ecosystem resilience.


Sec.  6102.3-2  Restoration planning.

    (a) Authorized officers must include a restoration plan in any 
Resource Management Plan adopted or revised in accordance with part 
1600 of this chapter. Each restoration plan must include goals, 
objectives, and management actions that require:
    (1) Measurable progress toward attainment of land health standards;
    (2) Clear outcomes and monitoring to describe progress and enable 
adaptive management (see subpart 6103).
    (3) Coordination and implementation of actions across BLM programs 
and with partners to develop landscape restoration objectives.
    (4) Attainment of statewide and regional needs as identified in the 
assessment of priority landscapes for restoration and consistent with 
Resource Management Plan goals.
    (5) Restoration of landscapes that land health assessments, 
watershed condition classifications and other best available 
information suggest should be prioritized for restoration.
    (b) Authorized officers must design and implement restoration 
actions to achieve the goals and objectives adopted under paragraph (a) 
of this section. In doing so, authorized officers must:
    (1) Ensure that actions are designed, implemented, and monitored at 
appropriate spatial and temporal scales using suitable treatments and 
tools to achieve desired outcomes.
    (2) Ensure that restoration management actions address causes of 
degradation, focus on ecological process-based solutions, and where 
possible maintain attributes and resource values associated with the 
potential or capability of the ecosystem.
    (3) Coordinate and implement actions across BLM programs and with 
partners to develop holistic restoration actions.
    (4) Issue conservation leases under Sec.  6102.4 for the purpose of 
restoring, managing, and monitoring areas within priority landscapes.
    (5) Ensure incorporation of locally appropriate best management 
practices that address the following:
    (i) A five-year schedule that describes activities prior to 
planning (such as pretreatments and native-plant materials 
procurement), implementation actions (including operation, maintenance, 
and repair), monitoring (see Sec.  6103.2), and reporting;
    (ii) Potential remedial and contingency measures that account for 
drought and changed circumstances that could delay implementation; and
    (iii) Opportunities for compensatory mitigation for important, 
scarce, or sensitive resources or resources protected by law.
    (c) Authorized officers must annually track restoration-project 
progress toward achieving goals, projects that have achieved project 
goals, and projects completed without meeting project goals. When 
assessment and monitoring efforts reveal that restoration outcomes have 
not been met, authorized officers must assess and track why restoration 
outcomes are not being achieved and what, if any, additional resources 
or changes to management are needed to achieve restoration goals.
    (d) Authorized officers may authorize a restoration project or 
approve compensatory mitigation as part of a broader land use 
authorization only if the proposed restoration project or compensatory 
mitigation will be consistent with the land health standards, 
restoration goals and objectives, best management practices and 
Resource Management Plan restoration plans described in paragraph (a) 
of this section.


Sec.  6102.4  Conservation leasing.

    (a) The BLM may authorize conservation use on the public lands by 
issuing conservation leases on such terms and conditions as the 
authorized officer determines are appropriate for the purpose of 
ensuring ecosystem resilience through protecting, managing, or 
restoring natural environments, cultural or historic resources, and 
ecological communities, including species and their habitats.
    (1) Conservation leases on the public lands may be authorized for 
the following activities:
    (i) Conservation use that involves restoration or land enhancement; 
and
    (ii) Conservation use that involves mitigation.
    (2) Authorized officers may issue conservation leases to any 
qualified individual, business, non-governmental organization, or 
Tribal government.
    (3) Conservation leases shall be issued for a term consistent with 
the time required to achieve their objective.
    (i) A conservation lease issued for purposes of restoration or 
protection may be issued for a maximum term of 10 years and shall be 
reviewed mid-term for consistency with the lease provisions.
    (ii) A conservation lease issued for purposes of mitigation shall 
be issued for a term commensurate with the impact it is mitigating and 
reviewed every 5 years for consistency with the lease provisions.
    (iii) Authorized officers shall extend or further extend a 
conservation lease if necessary to serve the purpose for which the 
lease was first issued. Such extension or further extension can be for 
a period no longer than the original term of the lease.
    (4) Subject to valid existing rights and applicable law, once the 
BLM has issued a conservation lease, the BLM shall not authorize any 
other uses of the leased lands that are inconsistent with the 
authorized conservation use.
    (5) No land use authorization is required under the regulations in 
this part for casual use of the public lands covered by a conservation 
lease.
    (b) The process for issuing a conservation lease is as follows:
    (1) An application for a conservation lease must be filed with the 
Bureau of Land Management office having jurisdiction over the public 
lands covered by the application. The filing of an application gives 
the applicant no right to use the public lands.
    (2) If the lease application is approved, the authorized officer 
will issue an approved conservation lease on a form approved by the 
Office of the Director, Bureau of Land Management.
    (c) An application for a conservation lease must include:

[[Page 19601]]

    (1) A description of the proposed conservation use in sufficient 
detail to enable authorized officers to evaluate the feasibility of the 
proposed conservation use; the impacts, if any, on the environment; the 
public or other benefits from the conservation use; the approximate 
cost of the proposed conservation use; any threat to public health and 
safety posed by the proposed use; and how, in the opinion of the 
applicant, the proposed use conforms to the Bureau of Land Management's 
plans, programs, and policies for the public lands covered by the 
proposed use. The description shall include but not be limited to:
    (i) Details of the proposed uses and activities;
    (ii) A description of all facilities for which authorization is 
sought, including access needs and special types of leases that may be 
needed;
    (iii) A map of sufficient scale to allow the required information 
to be legible as well as a legal description of primary and alternative 
project locations;
    (iv) A schedule for restoration or land enhancement activities if 
applicable; and
    (v) The following additional information, upon request of 
authorized officers:
    (A) Additional studies or environmental data, if such studies or 
data are necessary for the BLM to decide whether to issue, issue with 
modification, or deny the proposed conservation lease.
    (B) Documentation of or proof of application for additional 
private, State, local or other Federal agency licenses, permits, 
easements, certificates, or other approvals.
    (C) Evidence that the applicant has, or prior to commencement of 
conservation activities will have, the technical and financial 
capability to operate, maintain, and terminate the authorized 
conservation use.
    (2) The application shall include the name and legal mailing 
address of the applicant, as well as a statement of the applicant's 
interest in the resource or purpose of the lease.
    (3) If the applicant is other than an individual, the application 
shall include the name and address of an agent authorized to receive 
notice of actions pertaining to the application.
    (4) If any of the information required in this section has already 
been submitted as part of a separate conservation use proposal, the 
application need only refer to that proposal by filing date, office, 
and case number. The applicant shall certify that there have been no 
changes in any of the information.
    (d) Approval of the application is not guaranteed and is solely at 
the discretion of the authorized officer.
    (e) A conservation lease may only be assigned or transferred with 
the written approval of the authorized officer, and no assignment or 
transfer shall be effective until the BLM has approved it in writing. 
Authorized officers may authorize assignment or transfer of a 
conservation lease in their discretion if no additional rights will be 
conveyed beyond those granted by the original authorization, the 
proposed assignee or transferee is qualified to hold the lease, and the 
assignment or transfer is in the public interest.
    (f) Administrative cost recovery, rents and fees for conservation 
leases will be governed by the provisions of Sec. Sec.  2920.6 and 
2920.8.


Sec.  6102.4-1  Termination and suspension of conservation leases.

    (a) If a conservation lease provides by its terms that it shall 
terminate on the occurrence of a fixed or agreed-upon event, the 
conservation lease shall automatically terminate by operation of law 
upon the occurrence of such event.
    (b) A conservation lease may be terminated by mutual written 
agreement between the authorized officer and the lessee to terminate 
the lease.
    (c) Authorized officers have discretion to suspend or terminate 
conservation leases under the following circumstances:
    (1) Improper issuance of the lease;
    (2) Noncompliance by the holder with applicable law, regulations, 
or terms and conditions of the conservation lease;
    (3) Failure of the holder to use the conservation lease for the 
purpose for which it was authorized; or
    (4) Impossibility of fulfilling the purposes of the lease.
    (d) Upon determination that the holder has failed to comply with 
any terms or conditions of a conservation lease and that such 
noncompliance adversely affects or poses a threat to land or public 
health or safety or impacts to ecosystem resilience, authorized 
officers shall issue an immediate temporary suspension.
    (1) Authorized officers may issue an immediate temporary suspension 
order orally or in writing at the site of the activity to the holder or 
a contractor or subcontractor of the holder, or to any representative, 
agent, employee or contractor of any of them, and the suspended 
activity shall cease at that time. As soon as practicable, authorized 
officers shall confirm the order by a written notice to the holder 
addressed to the holder or the holder's designated agent. Authorized 
officers may also take such action considered necessary to address the 
adverse effects or threat to land or public health or safety or impacts 
to ecosystem resilience.
    (2) Authorized officers may order immediate temporary suspension of 
an activity regardless of any action that has been or is being taken by 
another Federal or State agency.
    (3) Any time after an order of temporary suspension has been 
issued, the holder may file with authorized officers a request for 
permission to resume. The request shall be in writing and shall contain 
a statement of the facts supporting the request. Authorized officers 
may grant the request upon determination that the adverse effects or 
threat to land or public health or safety or impacts to ecosystem 
resilience are resolved.
    (4) Authorized officers may render an order either to grant or to 
deny the request to resume within 5 working days of the date the 
request is filed. If authorized officers do not render an order on the 
request within 5 working days, the request shall be considered denied, 
and the holder shall have the same right to appeal as if an order 
denying the request had been issued.
    (e) Process for termination or suspension other than temporary 
immediate suspension.
    (1) Prior to commencing any proceeding to suspend or terminate a 
conservation lease, authorized officers shall give written notice to 
the holder of the legal grounds for such action and shall give the 
holder a reasonable time to address the legal basis the authorized 
officer identifies for suspension or termination.
    (2) After due notice of termination or suspension to the holder of 
a conservation lease, if grounds for suspension or termination still 
exist after a reasonable time, authorized officers shall give written 
notice to the holder and refer the matter to the Office of Hearings and 
Appeals for a hearing before an Administrative Law Judge pursuant to 
part 4 of this chapter. The authorized officers shall suspend or revoke 
the conservation lease if the Administrative Law Judge determines that 
grounds for suspension or revocation exist and that such action is 
justified.
    (3) Authorized officers shall terminate a suspension order when 
authorized officers determine that the grounds for such suspension no 
longer exist.
    (4) Upon termination of a conservation lease, the holder shall, for 
60 days after the notice of termination, retain authorization to use 
the associated public lands solely for the

[[Page 19602]]

purposes of reclaiming the site to its use conditions consistent with 
achieving land health fundamentals, unless otherwise agreed upon in 
writing or in the conservation lease terms. If the holder fails to 
reclaim the site consistent with the requirements of these regulations 
and the conservation lease terms within a reasonable period, all 
authorization to use the associated public lands will terminate, but 
that shall not relieve the holder of liability for the cost of 
reclaiming the site.


Sec.  6102.4-2  Bonding for conservation leases.

    (a) Bonding obligations. (1) Prior to the commencement of surface-
disturbing activities, the conservation lease holder shall submit a 
surety or a personal bond conditioned upon compliance with all the 
terms and conditions of the lease covered by the bond, as described in 
this subpart. The bond amounts shall be sufficient to ensure 
reclamation of the conservation lease area(s) and the restoration of 
any lands or surface waters adversely affected by conservation lease 
operations. Such restoration may be required after the abandonment or 
cessation of operations by the conservation lease holder in accordance 
with, but not limited to, the standards and requirements set forth by 
authorized officers.
    (2) Surety bonds shall be issued by qualified surety companies 
certified by the Department of the Treasury.
    (3) Personal bonds shall be accompanied by:
    (i) Cashier's check;
    (ii) Certified check; or
    (iii) Negotiable Treasury securities of the United States of a 
value equal to the amount specified in the bond. Negotiable Treasury 
securities shall be accompanied by a proper conveyance to the Secretary 
of full authority to sell such securities in case of default in the 
performance of the terms and conditions of a conservation use 
authorization.
    (b) State-wide bonds. In lieu of bonds for each individual 
conservation lease, holders may furnish a bond covering all 
conservation leases and operations in any one State. Such a bond must 
be at least $25,000 and must be sufficient to ensure reclamation of all 
of the holder's conservation lease area(s) and the restoration of any 
lands or surface waters adversely affected by conservation lease 
operations in the State.
    (c) Filing. All bonds shall be filed in the proper BLM office on a 
current form approved by the Office of the Director. A single copy 
executed by the principal or, in the case of surety bonds, by both the 
principal and an acceptable surety is sufficient. Bonds shall be filed 
in the Bureau State office having jurisdiction of the conservation use 
easement covered by the bond.
    (d) Default. (1) Where, upon a default, the surety makes a payment 
to the United States of an obligation incurred under a conservation 
lease, the face amount of the surety bond or personal bonds and the 
surety's liability thereunder shall be reduced by the amount of such 
payment.
    (2) After default, where the obligation in default equals or is 
less than the face amount of the bond(s), the principal shall either 
post a new bond or restore the existing bond(s) to the amount 
previously held or a larger amount as determined by authorized 
officers. In lieu thereof, the principal may file separate or 
substitute bonds for each conservation use covered by the deficient 
bond(s). Where the obligation incurred exceeds the face amount of the 
bond(s), the principal shall make full payment to the United States for 
all obligations incurred that are in excess of the face amount of the 
bond(s) and shall post a new bond in the amount previously held or such 
larger amount as determined by authorized officers. The restoration of 
a bond or posting of a new bond shall be made within 6 months or less 
after receipt of notice from authorized officers.
    (3) Failure to comply with these requirements may:
    (i) Subject all leases covered by such bond(s) to termination under 
the provisions of this title;
    (ii) Prevent the bond obligor or principal from acquiring any 
additional conservation lease or interest therein under this subpart; 
and
    (iii) Result in the bond obligor or principal being referred to the 
Suspension and Debarment Program under 2 CFR part 1400 to determine if 
the entity will be suspended or debarred from doing business with the 
Federal Government.


Sec.  6102.5  Management actions for ecosystem resilience.

    (a) Authorized officers must:
    (1) Identify priority watersheds, landscapes, and ecosystems that 
require protection and restoration efforts;
    (2) Develop and implement strategies, including mitigation 
strategies, and approaches that effectively manage public lands to 
protect resilient ecosystems;
    (3) Develop and implement monitoring and adaptive management 
strategies for maintaining sustained yield of renewable resources, 
accounting for changing landscapes, fragmentation, invasive species, 
and other environmental disturbances (see Sec.  6103.2);
    (4) Report annually on the results of land health assessments, 
including in the land health section of the Public Land Statistics;
    (5) Ensure consistency in watershed condition classifications both 
among neighboring BLM state offices and with the fundamentals of land 
health; and
    (6) Store watershed condition classification data in a national 
database to determine changes in watershed condition and record 
measures of success based on conservation and restoration goals.
    (b) In taking management actions, and as consistent with applicable 
law, authorized officers must:
    (1) Consistent with the management of the area, avoid authorizing 
uses of the public lands that permanently impair ecosystem resilience;
    (2) Promote opportunities to support conservation and other actions 
that work towards achieving sustained yield;
    (3) Issue decisions that promote the ability of ecosystems to 
recover or the BLM's ability to restore function;
    (4) Meaningfully consult with Indian Tribes and Alaska Native 
Corporations during the decisionmaking process on actions that may have 
a substantial direct effect on the Tribe or Corporation;
    (5) Allow State, Tribal, and local agencies to serve as joint lead 
agencies consistent with 40 CFR 1501.7(b) or as cooperating agencies 
consistent with 40 CFR 1501.8(a) in the development of environmental 
impact statements or environmental assessments;
    (6) Respect include Indigenous Knowledge, including by:
    (i) Encouraging Tribes to suggest ways in which Indigenous 
Knowledge can be used to inform the development of alternatives, 
analysis of effects, and when necessary, identification of mitigation 
measures; and
    (ii) Communicating to Tribes in a timely manner and in an 
appropriate format how their Indigenous Knowledge was included in 
decisionmaking, including addressing management of sensitive 
information;
    (7) Develop and implement mitigation strategies that identify 
compensatory mitigation opportunities and encourage siting of large, 
market-based mitigation projects (e.g., mitigation or conservation 
banks) on public lands where durability can be achieved;
    (8) Consider a precautionary approach for resource use when the 
impact on ecosystem resilience is unknown or cannot be quantified; and

[[Page 19603]]

    (9) Provide a justification for decisions that may impair ecosystem 
resilience.
    (c) Authorized officers must use national, regional, and site-based 
assessment, inventory, and monitoring data as available and 
appropriate, along with other high-quality information, as multiple 
lines of evidence to evaluate resource conditions and inform 
decisionmaking, specifically by:
    (1) Gathering high-quality available data relevant to the 
management decision, including standardized quantitative monitoring 
data and data about land health;
    (2) Selecting relevant indicators for each applicable management 
question (e.g., land health standards, restoration objectives, or 
intactness);
    (3) Establishing a framework for translating indicator values to 
condition categories (such as quantitative-monitoring objectives or 
science-based conceptual models); and
    (4) Summarizing results and ensuring that a clear and 
understandable rationale is documented, explaining how the data was 
used to make the decision.


Sec.  6102.5-1  Mitigation.

    (a) The BLM will generally apply the mitigation hierarchy to avoid, 
minimize and compensate for, as appropriate, adverse impacts to 
resources when authorizing uses of public lands. As appropriate in a 
planning process, the authorized officer may identify specific 
mitigation approaches for identified uses or impacts to resources.
    (b) Authorized officers shall, to the maximum extent possible, 
require mitigation to address adverse impacts to important, scarce, or 
sensitive resources.
    (c) For compensatory mitigation, the BLM may use a third-party 
mitigation fund holder. Authorized officers may approve third-party 
mitigation fund holders to establish mitigation accounts for use by 
entities granted land use authorizations by the BLM, when such accounts 
are an appropriate and efficient method for implementing mitigation 
measures required through a BLM decision document. Approved mitigation 
fund holders are allowed to collect and manage mitigation funds 
collected from permittees and to expend the funds in accordance with 
agency decision documents and permits.
    (d) Authorized officers may establish mitigation accounts as 
appropriate when multiple permittees have similar compensatory 
mitigation requirements or a single permittee has project impacts that 
require substantial compensatory mitigation that will be accomplished 
over an extended period and involve multiple mitigation sites.
    (e) Authorized officers may approve the use of a mitigation account 
by a permittee only if a mitigation fund holder has a written agreement 
with the BLM as described in paragraph (h) of this section.
    (f) Authorized officers may approve a third party as a mitigation 
fund holder if the party:
    (1) Qualifies for tax-exempt status in accordance with Internal 
Revenue Code (IRC) section 501(c)(3);
    (2) Has a history of successfully holding and managing mitigation, 
escrow, or similar corporate accounts;
    (3) Is a public charity bureau for the state in which the 
mitigation area is located, or otherwise complies with applicable state 
laws;
    (4) Is a third party organizationally separate from and having no 
corporate or family connection to the entity accomplishing the 
mitigation program or project, the project proponent, and the 
permittee;
    (5) Adheres to generally accepted accounting practices that are 
promulgated by the Financial Account Standards Board, or any successor 
entity; and
    (6) Has the capability to hold, invest, and manage the mitigation 
funds to the extent allowed by law and consistent with modern ``prudent 
investor'' and endowment law, such as the Uniform Prudent Management of 
Institutional Funds Act of 2006 (UPMIFA) or successor legislation when 
funds are needed for long-term management and monitoring. UPMIFA 
incorporates a general standard of prudent spending measured against 
the purpose of the fund and invites consideration of a wide array of 
other factors. For states that have not adopted UPMIFA, analogous state 
legislation can be relied upon to achieve this purpose.
    (g) The BLM may not approve a state or local government agency to 
hold mitigation funds under paragraph (f) of this section unless the 
government agency is able to demonstrate, to the satisfaction of the 
BLM, that it is acting as a fiduciary for the benefit of the mitigation 
project or site and can show that it has the authority and ability to:
    (1) Collect the funds;
    (2) Protect the account from being used for purposes other than the 
management of the mitigation project or site;
    (3) Disburse the funds to the entities conducting the mitigation 
project or management of the mitigation site;
    (4) Demonstrate that it is organizationally separate from and has 
no corporate or family connection to the entity accomplishing the 
mitigation program or project, the project proponent, and the 
permittee; and
    (5) Adhere to generally accepted accounting practices that are 
promulgated by the Governmental Accounting Standards Board or any 
successor entity.
    (h) The BLM must execute an agreement with any approved mitigation 
fund holder. All mitigation fund holder agreements must be recorded 
with the BLM within 30 days of the agreement being fully executed. The 
BLM office originating the mitigation fund holder agreement must ensure 
that annual fiscal reports are accurate and complete.

Subpart 6103--Tools for Achieving Ecosystem Resilience


Sec.  6103.1  Fundamentals of land health.

    (a) Standards and guidelines developed or revised by the BLM in a 
land use plan must be consistent with the following fundamentals of 
land health:
    (1) Watersheds are in, or are making significant progress toward, 
properly functioning physical condition, including their upland, 
riparian-wetland, and aquatic components; soil and plant conditions 
support infiltration, soil moisture storage, and the release of water 
that are in balance with climate and landform and maintain or improve 
water quality, water quantity, and timing and duration of flow.
    (2) Ecological processes, including the hydrologic cycle, nutrient 
cycle, and energy flow, are maintained, or there is significant 
progress toward their attainment to support healthy biotic populations 
and communities.
    (3) Water quality complies with state water quality standards and 
achieves, or is making significant progress toward achieving, 
established BLM management objectives established in the land use plan 
such as meeting wildlife needs.
    (4) Habitats are, or are making significant progress toward being, 
restored or maintained for Federal threatened and endangered species, 
Federal Proposed and Candidate species, and other special status 
species.
    (b) Authorized officers must manage all lands and program areas to 
achieve land health in accordance with the fundamentals of land health 
and standards and guidelines, as provided in this subpart.


Sec.  6103.1-1  Land health standards and guidelines.

    (a) To ensure ecosystem resilience, authorized officers must 
implement

[[Page 19604]]

land health standards and guidelines that, at a minimum, conform to the 
fundamentals of land health across all lands and program areas.
    (1) Authorized officers must apply existing land health standards 
and guidelines, including those previously established under subpart 
4180 of this chapter, across all lands and program areas.
    (2) Authorized officers must review land health standards and 
guidelines during the land use planning process and develop new or 
revise existing land health standards and guidelines as necessary for 
all lands and program areas to ensure the standards and guidelines 
serve as appropriate measures for the fundamentals of lands health.
    (3) Authorized officers will periodically, but not less than every 
5 years in conjunction with regular land use plan evaluations, review 
land health standards and guidelines for all lands and program areas to 
ensure they serve as appropriate measures for the fundamentals of land 
health. If existing standards and guidelines are found to be 
insufficient, authorized officers must evaluate whether to revise or 
amend the applicable land use plans.
    (b) Authorized officers must determine the priority and scale for 
evaluating standards and guidelines based on resource concerns.
    (c) Authorized officers must establish an appropriate set of goals, 
objectives, and success indicators to ensure that each land health 
standard can be measured against resource conditions. New and amended 
standards:
    (1) May include previously identified indicators if they are 
applicable to the new or amended standard;
    (2) Must incorporate appropriate quantitative indicators available 
from standardized datasets;
    (3) Must address changing environmental conditions and physical, 
biological, and ecological functions not already covered by existing 
standards; and
    (4) May require consultation with relevant experts within and 
outside the agency.
    (d) The BLM may establish national indicators for all lands and 
program areas taken from existing indicators and the development of new 
indicators, as needed, in support of the implementation of the 
fundamentals of land health.
    (1) Authorized officers must periodically review authorized uses 
for consistency with the fundamentals of land health for all lands and 
program areas.
    (2) Reserved.


Sec.  6103.1-2  Land health assessments, evaluations, and 
determinations.

    (a) Authorized officers must consider existing land health 
assessments, evaluations, and determinations in the course of 
decisionmaking processes regardless of program area. Authorized 
officers may prepare new land health assessments, evaluations, and 
determinations in connection with decisionmaking, and must do so if 
required by other law or regulation.
    (b) In the course of conducting land health assessments, authorized 
officers must measure applicable indicators.
    (c) In the course of conducting land health evaluations, authorized 
officers must:
    (1) Document whether land health standards are achieved through 
land health assessments, documented observations, standardized 
quantitative data, or other data acceptable to authorized officers as 
described in Sec.  6103.2.
    (2) Use multiple lines of evidence. Indicator values can be 
compared to benchmark values to help evaluate land health standards. 
Attainment or nonattainment of a benchmark for one indicator can be 
considered as one line of evidence used in the assessment and 
evaluation.
    (d) If resource conditions are determined to not be meeting, or 
making progress toward meeting, land health standards, authorized 
officers must determine the causal factors responsible for 
nonachievement.
    (e) Authorized officers must make progress toward determining the 
causal factors for nonachievement as soon as practicable but not later 
than within a year of the land health assessment identifying the 
nonachievement.
    (1) Upon determining that existing management practices or levels 
of use on public lands are significant factors in the nonachievement of 
the standards and guidelines, authorized officers must take appropriate 
action as soon as practicable.
    (2) Taking appropriate action means implementing actions, 
consistent with applicable law and the terms and conditions of existing 
authorizations, that will result in significant progress toward 
fulfillment of the standards and significant progress toward compliance 
with the guidelines.
    (3) Relevant practices and activities may include but are not 
limited to the establishment of terms and conditions for permits, 
leases, and other use authorizations and land enhancement activities.
    (4) If authorized officers determine that existing management 
practices or levels of use on public lands are not significant causal 
factors in the nonachievement of the standards, other remediating 
actions should be identified and implemented as soon as practicable to 
address the identified causal factors.
    (5) Authorized officers may authorize changes in management or 
development of a restoration plan to meet other objectives.


Sec.  6103.2  Inventory, assessment, and monitoring.

    (a) Watershed condition classifications must be completed as part 
of all land use planning processes.
    (b) The BLM will maintain an inventory of public lands. This 
inventory must include both critical landscape components (e.g., land 
types, streams, habitats) and core indicators that address land health 
fundamentals. Authorized officers will use inventory, assessment, and 
monitoring information, including standardized quantitative monitoring 
data, remote sensing maps, and geospatial analyses, to inform 
decisionmaking across program areas, including but not limited to:
    (1) Authorization of permitted uses;
    (2) Land use planning;
    (3) Land health evaluation;
    (4) Available watershed assessments;
    (5) Restoration planning, including prioritization;
    (6) Assessments of restoration effectiveness;
    (7) Evaluation and protection of intactness;
    (8) Mitigation planning; and
    (9) Other decisionmaking processes.
    (c) Authorized officers must inventory, assess, and monitor 
activities employing the following principles:
    (1) Structured implementation of monitoring activities through 
interdisciplinary monitoring plans, which guide monitoring program 
development, implementation, and data use for decision-makers;
    (2) Standardized field measurements to allow data comparisons 
through space and time in support of multiple management decisions;
    (3) Appropriate sample designs to minimize bias and maximize 
applicability of collected data;
    (4) Data management and stewardship to ensure data quality, 
accessibility, and use; and
    (5) Integration with remote sensing products to optimize sampling 
and calibrate continuous map products.

[FR Doc. 2023-06310 Filed 3-31-23; 8:45 am]
BILLING CODE 4331-27-P