Desert Tortoise Mitigation Policy

IM-AZ-2012-031
Instruction Memorandum
United States Department of the Interior
BUREAU OF LAND MANAGEMENT
Arizona State Office
One North Central Avenue, Suite 800
Phoenix, Arizona  85004-4427
June 14, 2012
In Reply Refer To:
6840 (9320) P
 
EMS TRANSMISSION  06/14/2012
Instruction Memorandum No. AZ-2012-031
Expires:  9/30/2015     EXPIRED
 
To:                  District Managers and Field Managers
 
From:              State Director
 
Subject:           Desert Tortoise Mitigation Policy
 
Program Area:  Special Status Species Management
 
Purpose:  The purpose of this Instruction Memorandum (IM) is to articulate mitigation policy, including off-site compensation for the desert tortoise and its habitat on public lands managed by the Bureau of Land Management (BLM) in Arizona, in a consistent manner between the District and Field Offices.  The Sonoran desert tortoise south and east of the Colorado River is a candidate species, managed as a BLM-sensitive species as described in Manual Section 6840.  Because the Mojave desert tortoise is a listed threatened species on the Arizona Strip and west of the Colorado River, the requirements of compliance with Section 7 of the Endangered Species Act (ESA) invoke policies specific to that listed species.  The policy and procedures below may, nonetheless, be useful for those District and Field Offices with the Mojave desert tortoise.
 
Policy/Action:  This document establishes policy to mitigate for impacts to desert tortoises and their habitats, including compensation for residual impacts that cannot otherwise be mitigated.  Mitigation, including compensation, must be designed to meet the purposes of the Rangewide Plan, including maintaining viable populations as well as maintaining the quantity and quality of Category I and II desert tortoise habitat.
 
An effective program to mitigate impacts resulting from the wide variety of actions occurring on public lands is required to meet the viable populations and no net loss mandates.  The Council for Environmental Quality (CEQ) guidelines (40 Code of Federal Regulations (CFR) 1508.20) define mitigation as:
  1. Avoiding the impact all together by not taking a certain action or parts of an action.
  1. Minimizing impacts by limiting the degree or magnitude of the action and its implementation.
  1. Rectifying the impact by repairing, rehabilitating, or restoring the affected environment.
  1. Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action.
  1. Compensating for the impact by replacing or providing substitute resources or environments.
The 1991 Compensation Report established a consistent means of determining the need and amount of compensation necessary to offset residual impacts that cannot otherwise be mitigated. The report also provided for greater consistency between BLM States and other cooperating agencies.
 
Some key points from the Compensation Report include the following:
  1. Compensation is to be used to offset residual impacts after all reasonable on-site mitigation measures are incorporated into an action.
  1. Procedures for determining compensation apply to both the Mojave and Sonoran desert tortoise populations.  Actions that may impact the Mojave population, which is listed as threatened, must involve consultation with the U.S. Fish and Wildlife Service (USFWS).
     
  2. Mitigating measures, including compensation if necessary, are determined through the Environmental Assessment (EA) and the Biological Assessment (BA) evaluation process.
  1. As part of the EA and/or BA processes, the following steps will normally be used to determine the need for compensation:
  • Determine if the action may have an effect upon the desert tortoise.  If the answer is no, then neither on-site mitigation nor compensation will be required for the tortoise.
  • If the action may have an effect upon the tortoise, develop an appropriate on-site mitigation package.  Determine whether implementation of the action with the on-site mitigation measures will result in residual impacts.  If no residual impacts will remain, then compensation will not be required.
  • If the action with on-site mitigation measures will result in residual impacts, then compensation will be required.
  • If compensation is required, follow the process outlined in the compensation report.  There may be instances where the proposed action includes measures that offset current impacts to tortoises.  In those cases, the amount of compensation required may be reduced based on a formula negotiated with the proponent.
  1. Determining the need for compensation of residual impacts and compensation rates should be accomplished using an interdisciplinary process.
  1. A description of the basic requirements and authority to develop mitigation and compensation measures is found on pages one and two of the report.
  1. Four of the categories used to determine compensation rates (term of effect, existing disturbance on site, growth inducing effects, and impacts to adjacent habitat) are designed to allow for site-specific determinations, and should dovetail with NEPA analyses.
  1. Compensation rates can be used in two ways:
  • To determine the amount of needed replacement habitats in terms of land, or
  • To determine funding amounts to compensate for other tortoise resource needs.
The wide range of activities and issues on public lands requires the BLM to interpret policy in a wide variety of situations (attachment 2).  This often means the integration of other laws and policies when considering land use authorizations.  We are generally concerned about two main issues when mitigating impacts to desert tortoise, especially on construction projects:  avoiding, minimizing or eliminating loss or degradation of habitat and avoiding or minimizing take of tortoises.
 
Keep in mind that the intent of the mitigation policy is to maintain habitat in order to ensure the existence of viable populations and thus reduce the need for listing the species.  Using this policy will enhance our overall management flexibility and also benefit the tortoise.  Attachments 3, 4, and 5 contain suggested mitigation practices and survey and handling procedures to help achieve our goals.  Every policy requires some flexibility in adapting to the wide range of situations we face.  In order to assist in implementing the policy, consider the following points:
  1. Conduct an on-site inspection of the proposal to verify tortoise habitat category and assess impacts to tortoises or their habitat.  Data collected in house or by a contractor will be collected or provided in a geospatial format consistent with BLM standards.  This includes species occurrence, transect location, point and polygon data collected.  A copy of species occurrences will be provided to the Arizona Game and Fish Department’s Heritage Data Management System.
  1. Identify alternative locations for the proposal and mitigating measures based on the on-site inspection.
  1. Work with the team lead and project proponents to develop alternatives which reduce or eliminate impacts to tortoises and their habitat.
  1. Consider the specific circumstances of the project when developing a compensation proposal.  The proponent may have unique capabilities or resources which may benefit tortoises.  Acquiring tortoise habitat is the primary means of compensating for residual impacts; however, consider a wide range of alternatives when that option cannot be accomplished.
  1. Emphasize avoidance to mitigate impacts.  This can be done by not identifying tortoise habitats for disposal or selecting project sites out of tortoise habitat.  The Rangewide Plan states:  "Retain Category I and II tortoise Habitat Areas unless (a) it clearly is in the National public interest to dispose of them and (b) losses can be mitigated."  Select project sites outside of tortoise habitat whenever possible.
  1. Be proactive by acquiring high quality tortoise habitat whenever the opportunity presents itself.  Use innovative or creative approaches to acquiring or protecting key habitat areas.
  1. In fulfilling the compensation requirement, consider acquiring fewer acres of higher quality habitat (Category I or II) to compensate for anticipated residual impacts to lower quality habitat (Category III) if an overall benefit to desert tortoise can be justified.  This approach can only be applied to acquiring higher quality habitat for lower quality, Category III habitats.  The compensation rate for both parcels can be used as a general guide in establishing a ratio from which to work.  This process must include a thorough on-site assessment of lands proposed for acquisition as well as impacted lands.  Improving tortoise population viability and adequate manageability of the proposed parcel are critical considerations in assessing the feasibility of the acquisition.  The benefits of acquiring fewer acres of better habitat must justify the loss in overall acreage of tortoise habitat, be well documented, and meet the intent of the Rangewide Plan.
It is important to document the thought process and rationale used in analyzing impacts to tortoise and their habitats, developing a mitigation plan, and determining compensation rates and the form of compensation.  This involves development of mitigating measures and the process of determining compensation for residual impacts.  Adequate documentation will assist in the decision making process and provide greater support for the proposed mitigation/compensation.  It will also help project proponents to better understand why we are requiring them to take various actions, and to more effectively implement proposed mitigating measures.  Such documentation should be included in NEPA compliance documents or in other supporting documentation.
 
Flexibility in implementing the desert tortoise compensation policy comes from making an accurate assessment of the on-the-ground situation and developing effective alternatives that eliminate or reduce impacts to tortoise populations or habitats.  Taking a proactive approach by identifying tortoise habitat for acquisition, avoiding disposal of habitat, and working with project proponents early in the process will greatly reduce difficulties in implementing the policy.
 
When compensation with dollars in lieu of land is required, the guidance contained in attachment 2 under Guidelines for Accepting Compensation Land or Dollars will apply.
 
Timeframe:  This IM is effective immediately.
 
Budget Impact:  None
 
Background:  In 1988, the strategic plan, Desert Tortoise Habitat Management on Public Lands:  A Rangewide Plan, was signed by the Director.  The Rangewide Plan set the stage for BLM management priorities for the species to this day.  Under this strategy, goals and criteria for habitat categories were used by BLM States to categorize all desert tortoise habitats on public lands.  The BLM committed to maintaining viable tortoise populations in Category I and II habitats.  The plan also established a policy as follows:  "Where practicable, allow no net loss in quantity or quality of important [Category I and II] desert tortoise habitats."  In order to achieve this “no net loss” mandate, adequate assessments of impacts of proposed actions were necessary in the NEPA process and adherence to all aspects of the definition of mitigation in the CEQ guidelines were needed (40 CFR 1508.20).
 
In 1991, the Desert Tortoise Management Oversight Group, consisting of BLM, USFWS, and State wildlife management agency representatives from Arizona, Nevada, Utah, and California, approved and signed the report, Compensation For The Desert Tortoise, (Attachment 1) a key component of the Rangewide Plan.  IM No. AZ-91-16, Strategy for Desert Tortoise Habitat Management on Public Lands in Arizona set the stage for Arizona BLM’s implementation of the Rangewide Plan.  On July 13, 1992, the Strategy for Desert Tortoise Habitat Management on Public Lands in Arizona ‑‑ New Guidance on Compensation for the Desert Tortoise (Compensation Report) was issued as IM No. AZ‑92‑46.  This guidance was followed by IM No. AZ-96-007, Desert Tortoise Mitigation Policy, and IM No. AZ-99-008, Supplemental Guidance for Desert Tortoise Compensation.  Since the time of the Implementation Strategy new information, development of suggested standard mitigation practices from the Arizona Interagency Desert Tortoise Team, and suggested survey and handling practices from the Arizona Game and Fish Department required policy update.  Additionally, transitions between two-tiered and three-tiered agency structures required some procedural changes relative to the mitigation policy.  IM No. 2008-204 was released in September, 2008, broadening earlier BLM guidance on off-site mitigation (compensation) including in-kind, out-of-kind, and in-lieu fee.  IM No. 2009-010 updated the land compensation values based on BLM linear right-of-way regulations published in the Federal Register on Friday, October 31, 2008 (73 FR 65040).  This Arizona guidance updates the land compensation values based on the BLM linear right-of-way values prescribed by WO-350 on June 1, 2009 for calendar years 2011-2015 and revises the process for compensation funds administration (see Appendix 2).
 
Coordination:  This IM affects Manual Section 6840.
 
Contact:  If you have questions concerning this guidance, please contact Tim Hughes, Threatened and Endangered Specialist, at 602‑417‑9356.
 
SIGNED BY
Kathryn E. Pedrick
for Raymond Suazo
AUTHENTICATED BY
Susan Williams
Staff Assistant
 
5 Attachments:
1 - Compensation for the Desert Tortoise (21 pp)
2 - Additional Guidance for Desert Tortoise Mitigation (10 pp)
3 - Recommended Standard Mitigation Measures for Projects in Sonoran Desert Tortoise Habitat (7 pp)
4 - Sonoran Desert Tortoise Survey Guidelines for Environmental Consultants (1 p)
5 - Guidelines for Handling Sonoran Desert Tortoises Encountered on Development Projects (1 p)

Attachments

Fiscal Year

2012