Implementing Amended Section 402(h)(1) of Federal Land Policy and Management Act - Using a Categorical Exclusion when Issuing a Grazing Permit or Lease
UNITED STATES DEPARTMENT OF THE INTERIOR
BUREAU OF LAND MANAGEMENT
WASHINGTON, D.C. 20240
http://www.blm.gov
July 15, 2015
In Reply Refer To:
4110 (220) P
EMS TRANSMISSION 07/15/2015
Instruction Memorandum No. 2015-121
Expires 09/30/2018
To: All Field Office Officials
From: Assistant Director Resources and Planning
Subject: Implementing Amended Section 402(h)(1) of Federal Land Policy and Management Act - Using a Categorical Exclusion when Issuing a Grazing Permit or Lease
Program Area: Rangeland Management (1020)
Purpose: Section 3023 of Public Law (PL) 113-291, National Defense Authorization Act (NDAA) 2015, amends Section 402 of the Federal Land Policy and Management Act of 1976 (FLPMA)and includes seven provisions related to livestock grazing. This Instruction Memorandum (IM) is intended to provide interim guidance for applying a categorical exclusion (CX) to an environmental review of a grazing permit, pending incorporation into Handbook H-4130-1, Authorizing Grazing Use.
Policy/Action: The Authorized Officer (AO) may apply a CX to issue a grazing permit or lease (permit) for allotments that meet specified criteria in accordance with Section 402(h)(1) of FLPMA. Application of this CX is discretionary, not mandatory and may be used to manage permit administration workload. This guidance provides direction for applying the CX authorized in Section 402(h)(1) of the FLPMA (as amended). For general guidance on the use of a CX, please refer to the Departmental regulations at 43 CFR §§ 46.205 through 46.215, the BLM National Environmental Policy Act (NEPA) Handbook (H-1790-1), and the Departmental Manual at 516 DM 11. The application of this CX does not reduce or eliminate regulatory requirements or other program-specific policies including the obligation to issue a decision that would provide opportunities for interested parties or the public to protest and/or appeal the decision.
The criteria listed in the FLPMA Section 402(h)(1) must be met in order to apply the CX for issuing livestock grazing permits. These criteria are shown in Attachment 1. If the criteria are met and the AO chooses to apply the CX, follow the steps below to complete processing the application and issue the permit.
- Ensure existing grazing is consistent with land use plan and any applicable allotment management plan objectives and decisions.
Use the most recent Evaluation Report(s) and Land Health Determination(s) and any subsequently collected monitoring data to document that the allotment(s) included in the permit meet land health standards or that factors other than existing livestock grazing are the cause for allotment(s) failing to meet the standards.
- Review the 12 extraordinary circumstances in 43 CFR 46.215. Include in the case file a brief rationale as to why this CX applies.
- Ensure that other legal and regulatory requirements, such as appropriate tribal and Endangered Species Act consultation are complete.
- Consult and coordinate with affected permittees or lessees, the state agencies having lands or responsibly for managing resources within the area, and the interested public. A letter informing parties of the intent to continue existing grazing management and describing how the allotments qualify in accordance with the statutory requirements is appropriate.
- Follow the decision processes provided in 43 CFR 4160 to issue the proposed and final decisions.
- Upon completion of any administrative review of the decision documents, issue the grazing permit and document in the Rangeland Administration System (RAS) that the permit is processed.
The grazing permit CX may be used when a new permit/lease is issued as the result of a transfer or when a permit/lease has expired and a new permit/lease is being issued to that same permittee. This CX is an optional tool that may be used to satisfy the NEPA compliance requirement. It may be used at the AO’s discretion only when a grazing permit/lease being considered meets the statutory criteria noted in Attachment 1. An AO may choose not to use the CX if he or she finds that a more detailed NEPA document such as an Environmental Assessment (EA) is needed to inform the decision to issue the permit/lease. If the AO determines that the grazing permit or lease being considered does not meet the statutory criteria, the CX must not be used. If a review or the 12 extraordinary circumstances listed in 43 CFR 46.215 determines that one or more of the extraordinary circumstances exists, this CX must not be used.
Background: Section 3023 in Public Law 113-291 Carl Levin and Howard P. "Buck" McKeon National Defense Authorization Act for Fiscal Year 2015 amended Section 402 of FLPMA by modifying one provision and adding six new provisions. One of the new provisions in the amended text now included in FLPMA as Sec. 402(h)(1) states “NATIONAL ENVIRONMENTAL POLICY ACT OF 1969.—The issuance of a grazing permit or lease by the Secretary concerned may be categorically excluded from the requirement to prepare an environmental assessment or environmental impact statement under the National Environmental Policy Act of 1969 (42 U.S.C. et seq.) ….” There are specific criteria for the use of this CX listed in Section 402 (h) (1). These are shown in Attachment 1.
Timeframe: This policy is effective immediately.
Budget Impact: It is anticipated that this CX may be applied to 15 to 20 percent of allotments for the purpose of issuing grazing permits, however, the BLM is not establishing a quota or target for its use. A similar CX in effect during fiscal years 2008 and 2009 was applied to about 20 percent of the permits processed in those two years.
Manual/Handbook Sections Affected: This IM amends the Management Policy for Lands under Wilderness Review (H-8550-1), the National Environmental Policy Handbook 1790-1, rel. 1-1710, and Authorizing Grazing Use Handbook 4130-1, rel. 4-75.
Coordination: This IM was prepared in coordination with the Division of Decision Support, Planning and NEPA; and with the Solicitor’s Office.
Contacts: Richard Mayberry, Rangeland Management Specialist, Division of Forest, Rangeland, Riparian, and Plant Conservation, at 202-912-7229.
Signed by: Authenticated by:
Michael H. Tupper Robert M. Williams
Deputy Assistant Director Division of IRM Governance,WO-860
Resources and Planning
1 Attachment