National Historic Preservation Act Requirements for Grazing Permit Renewals

In Reply Refer To: 8100 (NV933) P United States Department of the Interior BUREAU OF LAND MANAGEMENT Nevada State Office 1340 Financial Boulevard Reno, Nevada 89502-7147 http://www.blm.gov/nv 4/11/2013 EMS TRANSMISSION Instruction Memorandum: No. NV-2013-028 Expires: 09/30/2014 To: District and Field Managers, Nevada From: Deputy State Director Subject: National Historic Preservation Act IM Requirements for Grazing Permit Renewals Program Areas: Rangeland Management and Cultural Resources Purpose: The purpose of this Instruction Memorandum (IM) is to clarify procedures relating to compliance with Section 106 of the National Historic Preservation Act (NHPA) during the renewal and issuance of livestock grazing permits. Background: Grazing permit renewal continues to be a significant workload for BLM Nevada, which currently has more than 669 ten-year grazing permits, requiring renewal of approximately 67 permits each year. Permit renewal and/or issuance must be done in compliance with NHPA, the National Environmental Policy Act (NEPA) and with various other laws and executive orders. Cultural resources such as archaeological sites, properties of traditional tribal religious and cultural significance, buildings, and other categories are present on portions of the BLM lands on which permits authorize grazing. The BLM recognizes the potential for grazing to affect historic properties (i.e., those listed in or eligible for inclusion in the National Register of Historic Places, or NRHP) as a result of (a) concentration of livestock on historic properties, (b) construction and maintenance of grazing-related facilities, and (c) other grazing operations in the immediate vicinity of historic properties. When it is determined that historic properties may be subject to grazing-related adverse effects through the NHPA-compliance process, the BLM is required to implement measures to avoid or mitigate those adverse effects. Direction for issuance of grazing permits in compliance with NHPA, its regulations and executive orders currently exists primarily in the State Protocol Agreement between the Bureau of Land Management, Nevada and the Nevada State Historic Preservation Office for Implementing the National Historic Preservation Act (amended January 2013), or SPA. The SPA includes Appendix F.K.1, Grazing Management-Issuing Grazing Permits (Appendix), which has provided guidance for grazing permit renewals analyzed by means of Determinations of NEPA Adequacy (DNA) or its equivalent since the SPA’s inception in 1999. The Appendix also stipulates that grazing permit renewals analyzed by means of an Environmental Assessment (EA) or an Environmental Impact Statement (EIS) should follow terms of the SPA. Range improvements and changes in grazing practices such as relocated animal concentration with potential for new adverse effects also are analyzed per the SPA. Policy: BLM will take the following actions during the renewal and/or issuance of grazing permits, the authorization of which is recognized as an undertaking subject to Section 106 of the NHPA. 1. Permit renewals analyzed by means of a DNA shall follow the SPA, Appendix F.K.1.a-f. 2. Permit renewals analyzed by means of an EA or EIS also shall follow the SPA, which provides an expedited means for approval of BLM authorizations in compliance with Section 106 under specific conditions and should be utilized as appropriate so as to result in the most prompt renewal process possible. Where the SPA is not appropriate or pertinent, the regulations at 36 Code of Federal Regulations 800 (Protection of Historic Properties) should be followed, including SHPO consultation. 3. The BLM must analyze each permit renewal or application separately, following the SPA and beginning with a determination of the Area of Potential Effects (APE), which is “…the geographic area or areas within which an undertaking may directly or indirectly cause alterations in the character or use of historic properties, if any such properties exist” (36 CFR 800.16(d)). a. The BLM recognizes grazing permit renewals are undertakings with the potential to cause adverse effects. A determination that a proposed permit renewal is an undertaking with no potential to cause effects, per the SPA I.A.3, is inappropriate. b. Under the SPA, this process begins with preparation of the cultural resources inventory needs assessment form (CRINA), which is Attachment 1 to the SPA. (1) The initial requirement is for the Range Management Specialist (RMS) to complete a description of the grazing permit renewal or application geographic area, specifically including identification of areas of high intensity grazing use through animal concentration, which is where BLM anticipates that adverse effects could occur if historic properties are present. The RMS’ description of animal concentration should be based on existing information such as historical documents (including use of previous range assessments), aerial photographs, etc., to demonstrate locations of animal concentration areas. Maps should incorporate results of field visits, and monitoring or observations by the RMS or others, including collection of geospatial data to more precisely define animal concentration area boundaries. (2) Upon receipt of the CRINA from the RMS, the Cultural Resources Specialist (CRS) should analyze existing cultural resources information in BLM files, in the State Historic Preservation Office’s statewide database (Nevada Cultural Resources Information System, or NVCRIS) and other pertinent sources for information about known cultural resources, identified historic properties, previous inventories, analyses relating to the prediction of site locations or densities, previously identified impacts attributable to grazing and/or animal concentration, previously identified impacts within the APE attributable to factors other than grazing or animal concentration (e.g., wild horses, unregulated ATV use, etc.), to determine where historic properties are known or may exist that could be subject to adverse effects from animal concentration. Results should be compiled on the CRINA form. (3) Based on this information, the CRS will identify, justify and recommend an APE for approval by the Field Office Manager reflecting the co-occurrence of grazing animal concentration with known or likely locations of historic properties. c. A field visit by the CRS and the RMS should be made to determine exact locations and measures to be implemented to protect a known historic property. Depending on timing, results of such field visits and any related recommendations for protection of historic properties may be incorporated into a CRINA and conveyed to the Field Office Manager for approval and implementation. d. When conflicts may exist between animal concentration areas and historic properties or areas with high potential to contain historic properties, RMS and CRS staff should conduct a field visit to assess whether a historic property is present, whether adverse effects are occurring, and what measures are needed and feasible to avoid adverse effects. Depending on timing, results of such field visits and any related recommendations for protection of historic properties may be incorporated into a CRINA and conveyed to the Field Office Manager for approval and implementation. (1) In most cases the field visit will suffice for purposes of assessing conflicts between animal concentration behavior and historic properties, so no new Class III inventory, or Class II sampling inventory, of the APE will be necessary for permit renewal. However, as appropriate the CRS should identify the need for any such inventory within the area in which adverse effects may occur, i.e., the APE, and specify the location for inventory based on identified areas of co-occurrence in animal concentration, known or likely locations of historic properties, and areas with insufficient prior inventory where historic properties are considered likely to exist by BLM; these should be included in the CRINA submitted by the CRS to the Field Office Manager for approval, and then for delivery to SHPO per the SPA, I.B (SHPO Notification of Proposed Undertakings). (2) If the Field Office Manager determines inventory is needed within the APE, the inventory should comprise a reasonable and good faith examination to determine the presence of historic properties and should be conducted in a manner providing for timely completion of the permit renewal process. e. When conflicts are identified between animal concentration areas and historic properties or apparent historic properties, the BLM will address these through avoidance or by amending grazing practices authorized in the permit to lessen the impacts to the degree that a determination of “no adverse effect” can be reached. Such practices could include, but are not limited to, fence exclosures around the perimeter of an archaeological site or structure to eliminate trampling, rubbing, and similar animal behaviors inimical to preservation of a historic property, changing season of use of the area, or requiring movement of livestock off the areas being impacted when a specified threshold is exceeded. Implementation of such measures consistent with the SPA, Appendix H.A (Avoiding Properties/Avoiding Through Standard Measures) will establish an undertaking with no adverse effects. f. When the BLM determines adverse effects to historic properties cannot be avoided or minimized to a level to result in a finding of no adverse effect, the BLM will consult with SHPO about the grazing permit renewal per the SPA II.A (Required Consultation with SHPO) and the SPA V.D (Adverse Effects). Under such circumstances, renewal of a grazing permit should be delayed until a historic properties treatment plan is agreed to and a Memorandum of Agreement (MoA) has been signed between BLM and SHPO outlining the measures to be taken and establishing the requirements to be met in order for grazing permit renewal to proceed. g. Impacts from grazing permit renewals are expected to be limited to direct effects from animal concentration resulting in physical alteration of a historic property. The expected impacts from grazing permit renewals are not anticipated to pose indirect visual, atmospheric or audible effects. Resolution of adverse impacts by means of measures consistent with the SPA, Appendix H.A (Avoiding Properties / Avoiding Through Standard Measures) will likewise pose no indirect adverse effects. h. The Field Office Manager should initiate consultation with appropriate tribes at the earliest possible time in relation to consideration of an application for grazing permit renewal. The consultation should seek information from tribes regarding locations of properties of religious or traditional importance that may qualify as historic properties, as well as information about locations of sacred sites or other cultural concerns. The consideration of adverse effects to historic properties should follow the same procedures as expressed previously. The BLM should also seek to determine whether activities associated with grazing permit renewal may affect access to or condition of sacred sites, traditional resource gathering areas, etc., that may not qualify as historic properties but which are to be considered under other requirements (e.g., Executive Order 13007, Indian Sacred Sites) in order to meet BLM’s general trust responsibilities to Indian tribes. These concerns should be taken into account in a decision made regarding grazing permit renewal. (1) The BLM should follow procedures expressed in BLM NV IM 2011-173, regarding identification of historic properties of traditional religious and cultural importance to Indian tribes and reporting these efforts and results to SHPO. i. Range improvements and related projects authorized in a Decision Record or Record of Decision, including changes in grazing practices that result in new or different concentration areas, will be analyzed using the SPA. Timeframe: This IM is effective immediately. Budget Impacts: Implementation of this IM should be done within current cost targets. Workloads associated with addressing impacts to cultural resources during grazing permit renewal will increase in some cases as a result of the need for site visits and possibly for consultation with SHPO. This increased workload can be managed by appropriately focusing on the area of potential effects, areas of sensitivity for historic properties, and accommodation in use of agreed-upon measures for avoidance. These additional costs will be offset by improved administrative records and defense of BLM grazing permit renewal decisions if litigated. Manual/Handbook Sections Affected: None Contact: Tom Burke, BLM NVSO Cultural Resources Program Lead, 775 861-6415; Mike Tietmeyer BLM NVSO Range Management Lead 775 861-6647 Signed by: Patrick Gubbins (for Raul Morales) Deputy State Director Authenticated by: Edison Garcia Staff Assistant