National Environmental Policy Act Implementing Procedures for the Bureau of Land Management (516 DM 11)

SUPPLEMENTARY INFORMATION:

The Department is revising the list of BLM actions that are categorically excluded from the requirement to complete an environmental assessment (EA) or environmental impact statement (EIS), unless any extraordinary circumstances exist that make application of the categorical exclusion (CX) inappropriate (42 U.S.C. 4336e(1); 40 CFR 1501.4(a); 1508.1(e)). The BLM's NEPA procedures, 516 DM 11, were last updated December 10, 2020.

With this revision, the Department removes four administrative CXs from the BLM's NEPA procedures due to consideration of sound land management, legal frameworks, and other factors. The BLM is removing the following CXs: 516 DM 11.9 C(10) regarding the salvaging of dead and dying trees; 516 DM 11.9 D(10) regarding vegetation management activities; 516 DM 11.9 D(11) regarding issuance of livestock grazing permits or leases; and 516 DM 11.9 J(1) regarding certain activities within sagebrush and sagebrush-steppe plant communities to manage pinyon pine and juniper trees for the benefit of mule deer or sage-grouse habitats. The BLM previously discontinued use of these four CXs through instruction memoranda (IMs) (available online at https://www.blm.gov/policy/instruction-memorandum ). The BLM discontinued use of 516 DM 11.9 D(10) and 516 DM 11.9 D(11) on August 21, 2009, through IM 2009-199; discontinued use of 516 DM 11.9 C(10) on August 3, 2022, through permanent IM (PIM) 2022-010; and discontinued use of 516 DM 11.9 J(1) on November 30, 2022, through PIM 2023-002. When proposing actions to which these CXs would have applied, the BLM now must assess whether another CX applies or whether it will prepare an EA or EIS.

The Department also is incorporating two CXs statutorily created by Congress in the Infrastructure Investment and Jobs Act (Pub. L. 117-58) (IIJA) into the BLM NEPA procedures. Section 11318 of the IIJA created a CX for issuance of sundry notices or rights-of-way for gathering lines and associated field compression or pumping units on Federal land servicing oil and gas wells under certain conditions described in the statute. Section 40806 of the IIJA created a CX for forest management activities for the establishment of fuel breaks in forests and other wildland vegetation. Because these are statutory CXs, the Department does not have the discretion to change their terms. However, before applying either of the CXs, the BLM will evaluate the proposed action for extraordinary circumstances consistent with Section 40806 of the IIJA and 40 CFR 1501.4(b).

Comments on the Proposed Revisions

The proposed revisions to the BLM's NEPA procedures were available for public review and comment for 30 days, beginning with the publication of a Federal Register notice on February 26, 2024 (89 FR 14087). The BLM received 33 comment submissions. Comments were submitted by State and local governments, interest groups, and private citizens. The BLM received comments both in support of and opposition to the proposed revisions. Some comments were beyond the scope of the proposal to modify the BLM's NEPA procedures to add and remove CXs and included critiques of the BLM's NEPA analysis and management of livestock grazing as well as requests to coordinate on land use planning decisions.

On behalf of the Department, the BLM has summarized and provided responses to all substantive comments received in this Federal Register notice:

Comment: Commenters generally support the removal of the identified CXs from the BLM's NEPA procedures. Many commenters cited the need for meaningful NEPA analysis and concerns about improper reliance on CXs as support for removing the CXs. For example, some commenters supported removing the grazing CXs from the BLM's NEPA procedures to require more detailed NEPA analysis and public comment on grazing decisions. Other commenters cited specific resource impacts they foresee resulting from the activities proposed under the CXs, such as potential adverse impacts related to post-disturbance logging that might be exacerbated by salvaging of dead and dying trees.

Response: The BLM will continue to conduct the appropriate NEPA review for proposed Federal actions, including, where appropriate, application of available CXs, and public involvement, as necessary. The BLM will appropriately consider potential adverse effects of the proposed activities through the NEPA process whether that is through an EA or EIS or consideration of extraordinary circumstances in the application of relevant CXs.

The Department retains the discretion to consider establishing new CXs in the future, including ones that would cover activities similar to the ones covered by the CXs that the Department is removing through this notice. As required by Council on Environmental Quality (CEQ) regulations, the Department would seek public comment and consult with CEQ on any proposed revisions to the BLM's NEPA procedures, including establishment of any new CXs. See40 CFR 1507.3(b).

Comment: Some commenters generally oppose the removal of the identified CXs due to the loss of efficiencies in the NEPA process and the possibility of extended permitting timelines. Commenters claim that removal of these CXs will cause an increase in the cost associated with implementing activities covered by the CX and has the potential to prevent the BLM from managing public lands consistent with the Federal Land Policy and Management Act of 1976, as amended (FLPMA).

Response: The BLM agrees that the appropriate application of CXs can create efficiencies in NEPA compliance. Removal of the identified CXs does not preclude the BLM from proposing and implementing the kinds of activities that would have been covered by these CXs; however, the BLM would need to comply with NEPA in ways other than relying on these CXs. The BLM disagrees that removing these CXs will prevent the BLM from complying with FLPMA. The Department retains the discretion to consider establishing new CXs in the future, including ones that would cover activities similar to the ones covered by the CXs that the Department is removing through this notice.

Comment: Commenters are concerned that the discontinuance of the four CXs proposed for removal from the BLMs NEPA procedures was completed through internal guidance (instruction memoranda) and did not include any form of public comment. Commenters also request more information on the BLM's rationale for the removal of the CXs.

Response: An IM allows the BLM to communicate internal policies and procedures to the field. In contrast, the process now completed by the Department modifies the BLM's NEPA procedures, and has included coordination with CEQ, publication of proposed changes in the Federal Register , and an opportunity for the public to review and comment on those proposed changes. Removal of these CXs from the BLM NEPA procedures does not preclude the BLM from proposing or implementing the kinds of activities that would have been covered by these CXs; however, the BLM would need to comply with NEPA in ways other than relying on these CXs.

Comment: One commenter requested that the proposed action of modifying the NEPA procedures be consistent with relevant State and county resource management plans.

Response: The Department is not making a land use planning decision under section 202 of FLPMA, 43 U.S.C. 1712, which would require it to consider consistency with State and local government plans. Instead, the Department is modifying NEPA procedures, and has complied with CEQ's NEPA regulations at 40 CFR 1507.3(b) requiring consultation with CEQ and following an opportunity for public review and comment.

Comment: One commenter expressed concern that the removal of these CXs might discourage the BLM from approving certain actions that States or counties seek to encourage, including in their resource management plans and other policies.

Response: The removal of these CXs from the BLM's NEPA procedures does not preclude the BLM from proposing and implementing any actions, though when doing so, the BLM will need to comply with NEPA through means other than reliance on these CXs.

Comment: One commenter asserted that the BLM is setting precedent by basing the rationale for this decision on a settlement agreement that occurred in the U.S. District Court for the District of Idaho.

Response: While the BLM agreed in several stipulated settlement agreements to discontinue relying on specific CXs and to propose to remove specific CXs from the agency's NEPA procedures, these stipulated settlement agreements do not require the Department to update BLM's NEPA procedures. Instead, having considered the requirements of sound land management, legal frameworks, and other factors—and after considering public comments—the Department is now revising BLM's NEPA procedures to remove the CXs.

Comment: Commenters suggested revisions to the text of the CX established by the IIJA section 11318 regarding sundry notices or right-of-way for gathering lines and associated field compression or pumping units on Federal land servicing oil and gas wells.

Response: This is a statutorily created CX; therefore, neither the Department nor the BLM has the discretion to change its terms.

Comment: Some commenters confused the administratively established CX at 516 DM 11.9 D(10), which BLM is removing through this notice, with the CX established by the 2015 National Defense Authorization Act, Public Law 113-291 (Dec. 19, 2014) for grazing permit and lease issuance in certain circumstances, which is found at 516 DM 11.10 B and were concerned that the Department proposed to remove this legislative CX from the BLM's NEPA procedures. One commenter requested a technical edit in 516 DM 11.9 D to refer to the legislative CX for grazing permit renewal to help guide the public.

Response: The legislative CX established by the 2015 National Defense Authorization Act, Public Law 113-291 (Dec. 19, 2014) is unchanged and remains available for the BLM to rely on as appropriate. Reference to that legislative CX remains in the DM and is not affected by the revisions to the BLM's NEPA procedures as outlined in this Federal Register notice. The BLM declines to make the suggested edit as it is inconsistent with the format of the DM.

Comment: Some commenters disagreed with removal of the CX at 516 DM 11.9 D(10) regarding issuance of livestock grazing permits or leases because the commenters want to retain the ability to renew permits with the same terms and conditions and they assert that removal of the CX would impede the ability of ranchers to effectively manage rangelands.

Response: The BLM has several potential options to consider when conducting a NEPA review for livestock grazing permit renewals notwithstanding the removal of the two CXs from the BLM's NEPA procedures. These options include reliance on a legislative CX for grazing permit and lease issuance in certain circumstances that was established by the 2015 National Defense Authorization Act, Public Law 113-291 (Dec. 19, 2014), if appropriate. This legislative CX is unchanged and remains available for the BLM to rely on to support grazing decisions, when appropriate. Reference to that legislative CX remains in the BLM's NEPA procedures and is not affected by the revisions as outlined in this Federal Register notice. The removal of 516 DM 11.9 D(10) from the BLM's NEPA procedures does not preclude the BLM from proposing and implementing these kinds of activities; however, the BLM will need to comply with NEPA using a means other than reliance on this CX.

Comment: Commenters disagreed with the proposal to remove the CX at 516 DM 11.9 J(1) regarding certain activities within sagebrush and sagebrush-steppe plant communities to manage pinyon pine and juniper trees for the benefit of mule deer or sage-grouse habitats. Commenters expressed concern that removal of the CX will hinder efforts to manage land health and reduce wildfire risks in sagebrush-steppe communities.

Response: The BLM does agree that the activities included in the CX at 516 DM 11.9 J(1) can be useful in addressing issues related to the management of mule deer and sage grouse habitats. The removal of 516 DM 11.9 J(1) from the BLM's NEPA procedures does not preclude the BLM from proposing and implementing these kinds of activities; however, the BLM will need to comply with NEPA using a means other than reliance on this CX. For instance, some activities that may have been proposed for approval in reliance on this CX may fall within the scope of the legislative CX directed by the Agriculture Improvement Act of 2018. This legislatively directed CX covers similar vegetation management activities carried out for the protection, restoration or improvement of greater sage-grouse or mule deer habitat.

Comment: Commenters asserted a connection between ongoing NEPA analysis for management of greater sage-grouse habitat and the removal or retention of the vegetation management CXs and would like the decision on the CXs to be reserved until after the planning effort for greater sage-grouse is complete.

Response: The BLM notes that some of the CXs removed could have supported projects with the potential to address issues related to greater sage-grouse habitat management; however, removal of CXs from the BLM's NEPA procedures has no bearing on the land use planning processes associated with greater sage-grouse habitat management. The NEPA analysis for the planning effort does not make any assumptions about the level of NEPA review needed to support future activities that would implement the land use plans, and removal of these CXs will not impact the effectiveness of the plan decisions.

Comment: Commenters disagree with the proposed removal of the CX at 516 DM 11.9 C (10) regarding the salvaging of dead and dying trees. Commenters requested that the CX be retained to allow efficient removal of dead and dying trees to mitigate wildfire risk and address forest health.

Response: BLM agrees that the kinds of activities included in the CX at 516 DM 11.9 C(10) can be useful to address wildfire risk and forest health issues. The removal of 516 DM 11.9 C(10) from the BLM's NEPA procedures does not preclude the BLM from proposing and implementing these kinds of activities; however, the BLM will need to comply with NEPA using a means other than reliance on this CX.

Amended Text for the Departmental Manual

Below is the new text of 516 DM Chapter 11, reflecting the addition of the statutorily established CXs and deletion of the administrative CXs:

11.9 Actions Eligible for a Categorical Exclusion (CX)

C. Forestry

(10) [Removed]

D. Rangeland Management

(10) [Removed]

(11) [Removed]

J. [Reserved]

11.10 Categorical Exclusions Established or Directed by Statute

D. Section 11318 of the Infrastructure Investment and Jobs Act (Pub. L. 117-58) established a CX as defined in 40 CFR 1508.1 for issuance of sundry notices or rights-of-way for gathering lines and associated field compression or pumping units on Federal land servicing oil and gas wells under the conditions described below. Application of this CX requires extraordinary circumstances review consistent with 40 CFR 1501.4(b) and 43 CFR 46.215.

Section 11318. CERTAIN GATHERING LINES LOCATED ON FEDERAL LAND AND INDIAN LAND of the Infrastructure Investment and Jobs Act provides:

(a) Definitions.—In this section:

(1) Federal land.—

(A) In general.—The term “Federal land” means land the title to which is held by the United States.

(B) Exclusions.—The term “Federal land” does not include—

(i) a unit of the National Park System;

(ii) a unit of the National Wildlife Refuge System;

(iii) a component of the National Wilderness Preservation System;

(iv) a wilderness study area within the National Forest System; or

(v) Indian land

(2) Gathering line and associated field compression or pumping unit.—

(A) In general.—The term “gathering line and associated field compression or pumping unit” means—

(i) a pipeline that is installed to transport oil, natural gas and related constituents, or produced water from 1 or more wells drilled and completed to produce oil or gas; and

(ii) if necessary, 1 or more compressors or pumps to raise the pressure of the transported oil, natural gas and related constituents, or produced water to higher pressures necessary to enable the oil, natural gas and related constituents, or produced water to flow into pipelines and other facilities.

(B) Inclusions.—The term “gathering line and associated field compression or pumping unit” includes a pipeline or associated compression or pumping unit that is installed to transport oil or natural gas from a processing plant to a common carrier pipeline or facility.

(C) Exclusions.—The term “gathering line and associated field compression or pumping unit” does not include a common carrier pipeline.

(3) Indian land.—The term “Indian land” means land the title to which is held by—

(A) the United States in trust for an Indian Tribe or an individual Indian; or

(B) an Indian Tribe or an individual Indian subject to a restriction by the United States against alienation.

(4) Produced water.—The term “produced water” means water produced from an oil or gas well bore that is not a fluid prepared at, or transported to, the well site to resolve a specific oil or gas well bore or reservoir condition.

(5) Secretary.—The term “Secretary” means the Secretary of the Interior.

(b) Certain Gathering Lines.—

(1) In general.—Subject to paragraph (2), the issuance of a sundry notice or right-of-way for a gathering line and associated field compression or pumping unit that is located on Federal land or Indian land and that services any oil or gas well may be considered by the Secretary to be an action that is categorically excluded (as defined in section 1508.1 of title 40, Code of Federal Regulations (as in effect on the date of enactment of this Act)) for purposes of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) if the gathering line and associated field compression or pumping unit—

(A) are within a field or unit for which an approved land use plan or an environmental document prepared pursuant to the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) analyzed transportation of oil, natural gas, or produced water from 1 or more oil or gas wells in the field or unit as a reasonably foreseeable activity;

(B) are located adjacent to or within—

(i) any existing disturbed area; or

(ii) an existing corridor for a right-of-way; and

(C) would reduce—

(i) in the case of a gathering line and associated field compression or pumping unit transporting methane, the total quantity of methane that would otherwise be vented, flared, or unintentionally emitted from the field or unit; or

(ii) in the case of a gathering line and associated field compression or pumping unit not transporting methane, the vehicular traffic that would otherwise service the field or unit.

(2) Applicability.—Paragraph (1) shall apply to Indian land, or a portion of Indian land—

(A) to which the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) applies; and

(B) for which the Indian Tribe with jurisdiction over the Indian land submits to the Secretary a written request that paragraph (1) apply to that Indian land (or portion of Indian land).

(c) Effect on Other Law.—Nothing in this section—

(1) affects or alters any requirement—

(A) relating to prior consent under—

(i) section 2 of the Act of February 5, 1948 (62 Stat.18, chapter 45; 25 U.S.C. 324); or

(ii) section 16(e) of the Act of June 18, 1934 (48 Stat. 987, chapter 576; 102 Stat. 2939; 114 Stat. 47; 25 U.S.C. 5123(e)) (commonly known as the “Indian Reorganization Act”);

(B) under section 306108 of title 54, United States Code; or

(C) under any other Federal law (including regulations) relating to Tribal consent for rights-of-way across Indian land; or

(2) makes the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) applicable to land to which that Act otherwise would not apply.

E. Section 40806 of the Infrastructure Investment and Jobs Act (Pub. L. 117-58) excludes forest management activities for the establishment of fuel breaks in forests and other wildland vegetation from preparation of an EA or EIS under NEPA, as described below. Application of this CX requires extraordinary circumstances review consistent with 40 CFR 1501.4(b), 36 CFR 220.6, and 43 CFR 46.215.

Section 40806. ESTABLISHMENT OF FUEL BREAKS IN FORESTS AND OTHER WILDLAND VEGETATION of the Infrastructure Investment and Jobs Act provides:

(a) Definition of Secretary Concerned.—In this section, the term “Secretary concerned” means—

(1) the Secretary of Agriculture, with respect to National Forest System land; and

(2) the Secretary of the Interior, with respect to public lands (as defined in section 103 of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1702)) administered by the Bureau of Land Management.

(b) Categorical Exclusion Established.—Forest management activities described in subsection (c) are a category of actions designated as being categorically excluded from the preparation of an environmental assessment or an environmental impact statement under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) if the categorical exclusion is documented through a supporting record and decision memorandum.

(c) Forest Management Activities Designated for Categorical Exclusion.—

(1) In general.—The category of forest management activities designated under subsection (b) for a categorical exclusion are forest management activities described in paragraph (2) that are carried out by the Secretary concerned on public lands (as defined in section 103 of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1702)) administered by the Bureau of Land Management or National Forest System land the primary purpose of which is to establish and maintain linear fuel breaks that are—

(A) up to 1,000 feet in width contiguous with or incorporating existing linear features, such as roads, water infrastructure, transmission and distribution lines, and pipelines of any length on Federal land; and

(B) intended to reduce the risk of uncharacteristic wildfire on Federal land or catastrophic wildfire for an adjacent at-risk community.

(2) Activities.—Subject to paragraph (3), the forest management activities that may be carried out pursuant to the categorical exclusion established under subsection (b) are—

(A) mowing or masticating;

(B) thinning by manual and mechanical cutting;

(C) piling, yarding, and removal of slash or hazardous fuels;

(D) selling of vegetation products, including timber, firewood, biomass, slash, and fenceposts;

(E) targeted grazing;

(F) application of—

(i) pesticide;

(ii) biopesticide; or

(iii) herbicide;

(G) seeding of native species;

(H) controlled burns and broadcast burning; and

(I) burning of piles, including jackpot piles.

(3) Excluded activities.—A forest management activity described in paragraph (2) may not be carried out pursuant to the categorical exclusion established under subsection (b) if the activity is conducted—

(A) in a component of the National Wilderness Preservation System;

(B) on Federal land on which the removal of vegetation is prohibited or restricted by Act of Congress, Presidential proclamation (including the applicable implementation plan), or regulation;

(C) in a wilderness study area; or

(D) in an area in which carrying out the activity would be inconsistent with the applicable land management plan or resource management plan.

(4) Extraordinary circumstances.—The Secretary concerned shall apply the extraordinary circumstances procedures under section 220.6 of title 36, Code of Federal Regulations (or a successor regulation), in determining whether to use a categorical exclusion under subsection (b).

(d) Acreage and Location Limitations.—Treatments of vegetation in linear fuel breaks covered by the categorical exclusion established under subsection (b)—

(1) may not contain treatment units in excess of 3,000 acres;

(2) shall be located primarily in—

(A) the wildland-urban interface or a public drinking water source area;

(B) if located outside the wildland-urban interface or a public drinking water source area, an area within Condition Class 2 or 3 in Fire Regime Group I, II, or III that contains very high wildfire hazard potential; or

(C) an insect or disease area designated by the Secretary concerned as of the date of enactment of this Act; and

(3) shall consider the best available scientific information.

(e) Roads.—

(1) Permanent roads.—A project under this section shall not include the establishment of permanent roads.

(2) Existing roads.—The Secretary concerned may carry out necessary maintenance and repairs on existing permanent roads for the purposes of this section.

(3) Temporary roads.—The Secretary concerned shall decommission any temporary road constructed under a project under this section not later than 3 years after the date on which the project is completed.

(f) Public Collaboration—To encourage meaningful public participation during the preparation of a project under this section, the Secretary concerned shall facilitate, during the preparation of each project—

(1) collaboration among State and local governments and Indian Tribes; and

(2) participation of interested persons.

(Authority: NEPA, the National Environmental Policy Act of 1969, as amended (42 U.S.C. 4321 et seq.); E.O. 11514, March 5, 1970, as amended by E.O. 11991, May 24, 1977; and CEQ regulations (40 CFR 1500-1508)).

[FR Doc. 2024-24738 Filed 10-23-24; 8:45 am]

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