Document 6w3KVG3bp5JeOwGLgJdojjaN4

APR 1 3 2017 INFORMATION/BRIEFING MEMORANDUM FOR THE SECRETARY DATE: April 13,2017 THROUGH: Katharine MacGregor, Acting Assistant Secretary Land and Minerals Management FROM: Michael D. Nedd, Acting Director - Bureau of Land Management SUBJECT: Implementation of Secretary's Order 3349, Section 5(a) and (b) This memorandum responds to questions posed in sections 5(a)(i) and 5(b)(i) of Secretary's Order (SO) 3349, "American Energy Independence," which requests summary information about "actions" the Bureau of Land Management (BLM) has adopted or is in the processes of developing with respect to certain memoranda and orders related to mitigation and climate change. The BLM has interpreted "actions," as described in SO 3349, to include: (1) new regulations or amendments to existing regulations; (2) new or revised BLM Manual Sections; (3) new or revised handbooks; (4) Instruction Memoranda (IM); (5) Information Bulletins (IB); and (6) other policy and guidance documents that include direction on mitigation and climate change. BACKGROUND ON MITIGATION For decades, the BLM has been using mitigation to reduce the severity or seriousness of impacts to resources and land uses across the landscape. As required under the National Environmental Policy Act (NEPA), the BLM routinely evaluates mitigation measures in its Environmental Impact Statements and Environment Assessments for land use plans and project authorizations. When BLM implements mitigation, it seeks to avoid impacts, minimize impacts, and compensate for residual impacts to sensitive, scarce, or important resources consistent with the definition of mitigation in the Council on Environmental Quality (CEQ) regulations (40 C.F.R. 1508.20). Avoidance and minimization have been and continue to be the most commonly used mitigation when BLM is authorizing an action. Although it was applied inconsistently prior to issuance of the first policy on the topic in 2005, BLM has also used compensatory mitigation, particularly to reduce residual impacts to threatened and endangered species, cultural resources, air, and water. The BLM does not have a centralized tracking system for mitigation payments at this time. Mitigation measures are often incorporated into lease stipulations, permit conditions of approval, best management practices, or reclamation measures; avoidance and minimization measures are also commonly built into the proposed action as design features to avoid known sensitive resources. Mitigation, including compensation, is a particularly useful tool for the BLM because it can help to facilitate compliance with a variety of applicable laws where an action might not otherwise comply, i The Permian Basin Agreement is an example of a voluntary program offered i Mitigation can play an important role under the Clean Water Act, for example, when restoration can help achieve the no net loss of wetlands standard; under the Clean Air Act, to comply with Implementation Plans for non attainment areas or to prevent/reduce air quality degradation; under the Endangered Species Act, as incorporated in 1 as an alternative set of procedures to meet Section 106 responsibilities. The program provides for a company to choose to contribute the cost of the required archaeological survey (required under Section 106 of the NHPA), into a mitigation pool. The pooled fund allows for effective management of the area's archaeological resources and provides industry more predictability and control over schedules and budgets needed to operate efficiently. In addition to aiding compliance with various laws and regulations, use of mitigation in appropriate circumstances may also increase the defensibility of BLM's decisions. For example, in 2008, when BLM authorized natural gas development in the Pinedale Anticline in western Wyoming, the Record of Decision was challenged on the grounds that it violated FLPMA's direction to prevent unnecessary or undue degradation of the public lands. The D.C. Circuit Court of Appeals, however, found that BLM's authorization complied with FLPMA, citing BLM's reliance on mitigation measures to reduce project impacts (Theodore Roosevelt Conservation Partnership v. Salazar, 661 F.3d 66, 76-77 (D.C. Cir. 2011)). BLM began working on formal mitigation policy in the early 2000s to provide clarity and guidance for the field and increase consistency in the implementation of mitigation, in particular, identifying, considering, and, as appropriate, requiring, mitigation to address impacts to sensitive, important, or rare resources from public land uses. BLM has also focused on proactive and regional approaches that consider mitigation in the planning process, and encourages the use of mitigation banks, exchanges and similar mechanisms. This approach has provided more certainty to applicants on the types of mitigation likely to be considered for a project and has helped to streamline the permitting process. RECENT BLM MITIGATION ACTIONS The BLM has adopted or is in the process of developing the following actions relating to (1) Secretary's Order 3330, dated October 31, 2013, "Improving Mitigation Policies and Practices of the Department of the Interior;" and the associated report dated April 2014, "A Strategy for Improving the Mitigation Policies and Practices of the Department of the Interior;" and (2) the Presidential Memorandum dated November 3, 2015, "Mitigating Impacts on Natural Resources from Development and Encouraging Related Private Investment." 1. BLM IB No. 2017-015, Availability of Model Compensatory Mitigation MOU (December 2016). This IB announces the availability of a model memorandum of understanding (MOU) for use by BLM State Offices when collaborating with state governments regarding state-based compensatory mitigation programs for the Greater sage-grouse and its habitat. This model provides language that makes the strongest commitment the BLM can make within our legal constraints to coordinate our project review processes with the states' compensatory mitigation programs. The model MOU reasonable and prudent alternatives to avoid jeopardizing the continued existence of a listed species under section 7 or as a component of a Habitat Conservation Plan under section 10; under the National Historic Preservation Act, since BLM must consult with states, tribes, and other parties to seek to resolve an undertaking's adverse impacts on historic properties, and seek to minimize harm on National Historic Landmarks; and under the Federal Land Policy and Management Act (FLPMA), to prevent unnecessary or undue degradation of public lands. 2 can be adapted for other resources and circumstances where state compensatory mitigation programs may assist the BLM in achieving its mission. To date, BLM has developed MOUs supporting the use of state-based tools for sage-grouse mitigation with the states of Nevada, Wyoming, and Colorado, and is in discussions with the states of Oregon, Idaho, California, Montana, and Utah. 2. BLM Mitigation Manual, MS-1794 (December 2016). This manual section and the Mitigation Handbook, H-1794-1 (listed below), were issued under BLM IM No. 2017 021. This policy includes principles for mitigation that, "effective mitigation is durable, defined by outcomes, implemented and monitored for effectiveness, considered within an adaptive management framework, reported upon, managed by a responsible party, guided by the best available science, and developed through effective, early, and frequent communication with public land users, cooperating agencies, and other stakeholders, including the public." 3. BLM Mitigation Handbook, H-1794-1 (December 2016). Description included above under MS-1794. 4. BLM New Mexico IM No. NM-F010-2016-004, Bureau of Land Management (BLM) Sensitive Species - Brack's Cactus Management (September 7, 2016). This IM is specific to the Farmington District and provides guidance to conserve habitat and protect Brack's cactus, a BLM Sensitive Species and a species included on the State of New Mexico's list of endangered plant species, from ground-disturbing projects by (1) requiring surveys to identify Brack's cactus locations; and (2) implementing management guidance to mitigate impacts to Brack's cactus by avoiding and minimizing impacts, and then compensating for impacts that cannot be avoided. 5. BLM California IM No. CA-2015-009, Renewal of IM Implementing Provisions within the Consolidated Appropriations Act, 2012 (Public Law 112-74) Related to Livestock Grazing Authorizations in the California Desert Conservation Area (December 17,2014). This IM reiterates and provides direction on implementing the livestock grazing provisions in P.L. 112-74, which states that BLM shall accept the donation of valid existing grazing allotments and make the land available for mitigation by allocating the forage to wildlife use consistent with any applicable Habitat Conservation Plan. F.ndanuerod Snecios Art spotion 10 normit or hinlnmVnl nnininn 3 (b)(5) In addition, the Western Governors Association Greater sage-grouse Task Force requested that a team of state and Federal agencies, including BLM, discuss the implementation of mitigation requirements contained in the sage-grouse plans. The team produced the "Report to the SageGrouse Task Force: Greater Sage-Grouse Compensatory Mitigation (December 2016)" which identifies key principles and approaches to mitigation commonly agreed to by the state and Federal agencies and provides an overview of each state's approach to compensatory mitigation. PREVIOUS BLM MITIGATION ACTIONS Prior to issuance of Secretarial Order 3330 and the 2015 Presidential Memorandum, the BLM took the following actions of note related to mitigation: 1. BLM IM No. 2013-142, Interim Policy, Draft Regional Mitigation Manual Section (MS-1794) (June 2013). This interim policy directed resource programs to move from case-by-case application of mitigation to a regional approach that involves anticipating future mitigation needs and strategically identifies mitigation sites and measures that can help the BLM achieve its resource objectives while improving permitting efficiencies and providing greater certainty to permit applicants, partners, stakeholders, and the public. The 2013 interim policy covered all resource programs and was the precursor to the current Mitigation Policy. In response to this policy, the BLM began developing regional mitigation strategies in several areas to provide a clear path forward for potential mitigation actions, including in the Solar Energy Zones, sagebrush-steppe and Greater sage-grouse habitat, and the National Petroleum Reserve - Alaska. 2. BLM Arizona IM No. AZ-2012-031, Desert Tortoise Conservation Agreement Implementation (June 2012). This IM articulates a consistent mitigation policy for District and Field Offices in Arizona, including off-site compensation for the desert tortoise and its habitat on public lands managed by the BLM in Arizona. 3. BLM Special Status Species Manual (M 6840) (December 2008). This Manual identifies and interprets BLM's responsibilities under the Endangered Species Act, establishes policy for other sensitive species, and includes off-site compensatory mitigation as a means to further the conservation of federally listed species. 4. BLM IM No. 2009-011, Assessment and Mitigation of Potential Impacts to Paleontological Resources (October 10, 2008). The IM provides guidelines for assessing potential impacts to paleontological resources in order to determine mitigation steps for Federal actions on public lands under the Federal Land Policy and Management Act and the National Environmental Policy Act. These guidelines also apply where a Federal action impacts split-estate lands, and provides field survey and monitoring procedures to help minimize impacts to paleontological resources determined to be significant that are expected to be adversely affected by a Federal action. 5. BLM IM No. 2008-204, Offsite Mitigation (September 30, 2008). This IM outlines policy for the use of offsite mitigation for all authorizations not just those related to energy. Issued by the BLM and replaced IM WO-2005-069 Interim Offsite Compensatory Mitigation for Oil, Gas, Geothermal and Energy Rights-of-way 4 Authorizations (February 1, 2005). It was replaced by BLM IM no. 2013-142 (see #1 above). 6. BLM National Environmental Policy Act Handbook, H-1790-1 (January 2008). Consistent with the CEQ regulations at 40 CFR 1508.20, this Handbook defines mitigation to include avoidance, minimization, and compensation. It also describes how mitigation can be used to reduce the effects of an action below the threshold of significance, thereby avoiding the need to prepare an EIS (i.e., to arrive at a "mitigated Finding of No Significant Impact (FONSI)"). It also provides guidance relating to BLM's description of any effects that remain after mitigation measures have been applied, incorporation of mitigation measures into decision documents, and discussions of monitoring to ensure implementation of adopted measures. 7. BLM IM No. 2008-050, Migratory Bird Treaty Act - Interim Management Guidance (December 2007). This IM provides direction to avoid, reduce, or mitigate adverse impacts to the habitats of migratory bird species of conservation concern to the extent feasible, and in a manner consistent with regional or statewide bird conservation priorities. 8. BLM IM No. 2005-069, Offsite Mitigation, Interim Offsite Compensatory Mitigation for Oil, Gas, Geothermal and Energy Rights-of-way Authorizations (February 1, 2005). This IM outlines interim policy for the use of compensatory (offsite) mitigation for oil, gas, geothermal, and energy rights-of-way on an "as appropriate" basis where it can be performed onsite and on a voluntary basis. It was replaced by BLM IM no. 2008 204 (see #5 above). 9. BLM land use planning regulations, 43 CFR 1610 and Land Use Planning Handbook H-1601-1 (2005). BLM's land use planning regulations and handbook provide broad guidance on the development of land use plans. The handbook guidance includes the consideration of mitigation measures, as appropriate, to address resource, social, and economic impacts. 10. BLM Protecting Cultural Resources Manual (MS-8140) (December 2004). This Manual provides general guidance for protecting cultural resources from inadvertent adverse effects associated with BLM land use decisions, pursuant to the National Historic Preservation Act, the National Environmental Policy Act, Executive Order 11593, and the National Programmatic Agreement regarding the manner in which the BLM will meet its responsibilities under the National Historic Preservation Act. 11. BLM hardrock mining regulations, 43 CFR 3809. Among the general performance standards for surface management within a mining plan of operations is the requirement to "take mitigation measures specified by BLM to protect public lands" (43 CFR 3809.420(a)(4)). 12. BLM FLPMA right of way regulations, 43 CFR 2800. These regulations require holders to "restore, revegetate, and curtail erosion or conduct any other rehabilitation measures BLM determines necessary" including conditioning agreements on compensatory mitigation (43 CFR 2805.12(i)). 13. BLM easement regulations, 43 CFR 2920. These regulations "direct BLM to include terms and conditions that... `minimize damage'" and "require the use to be located in an area which shall cause the least damage to the environment" (43 CFR 2920.7(b)). 5 BACKGROUND ON CLIMATE CHANGE For many years, primarily through NEPA analyses for land use planning and project authorizations, the BLM has considered climate change, its effects on public lands and public land users, and how BLM decisions contribute to climate change. BLM began working on formal climate change policy in 2008 through issuance of an Instruction Memorandum (IM) transmitting draft guidance for state and field office comments on incorporating climate change considerations into land use planning and NEPA documents. In 2010, the CEQ released a document entitled, "Draft NEPA Guidance on Consideration of the Effects of Climate Change and Greenhouse Gas Emission" for review by the public and agencies. The CEQ issued revised draft guidance in December of 2014 for review and comment. Final CEQ guidance was issued in August of 2016. RECENT BLM CLIMATE CHANGE ACTIONS The BLM has adopted or is in the process of developing the following list of actions relating to the Presidential actions, reports, and guidance that are rescinded by the March 28, 2017 EO identified in SO 3349 and the 2016 CEQ "Final Guidance for Federal Departments and Agencies on Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in National Environmental Policy Act Reviews." L BLM Permanent IM No. 2017-003, The Council on Environmental Quality Guidance on Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in National Environmental Policy Act Reviews (December 2016). The IM transmits CEQ guidance on considering climate change in NEPA analysis. It also provides specific step-down guidance for how to calculate the "downstream" or indirect greenhouse gas emissions associated with fossil fuel actions (coal, oil, and gas), when production estimates are reasonably foreseeable. 3. BLM IM 2016-029: Environmental Management System 2016 National Objectives and Targets. This IM Identifies the BLM's Fiscal Year 2016 Environmental Management System (EMS) objectives and targets. It references Executive Order 13693, Planning for Federal Sustainability in the Next Decade, which directs agencies and bureaus to reduce air emissions, water use, energy use, and enhance their green procurement. 4. BLM IM 2015-020: Guidance (sic) Use of Air Emissions Estimating Tools. This IM provides national guidance for the BLM on the use of air emissions estimating tools. 6 Specifically, it describes three toolkits available for BLM staff to use when estimating emissions for NEPA or other purposes. 5. BLM IM 2017-037: Waste Mine Methane Policy. This 1M establishes national policies and processes to foster voluntary activities by operators to capture waste mine methane from underground coal or other solid mineral mines. These policies allow waste mine methane to be put to productive use, where economical, and reduce environmental impacts, while ensuring continued safe underground mining operations on Federal lands 6. BLM Waste Prevention, Production Subject to Royalties, and Resource Conservation regulation. 81 Fed. Reg. 83008 (January 17, 2017). This new rule provided guidance on managing methane. Please see response to Section 5(c) for more information on this rule. PREVIOUS BLM CLIMATE CHANGE ACTIONS Prior to issuance of the documents listed in SO 3349, the BLM took the following actions of note related to climate change: 1. BLM New Mexico IM No. NM-2013-022, Availability of Updated Air Resources Technical Report (ARTR); Use of Environmental Assessment (EA) Template Air Quality and Climate Change Language for Applications for Permit to Drill (APDs) and Lease Sales (June 2013). This IM instructed District and Field Offices to use the latest version of the BLM New Mexico Air Resources Technical Report, and provided template language for use in NEPA environmental analysis documents to address air quality and climate change impacts. 2. BLM Oregon/Washington IM No. OR-2010-012, Analysis of Greenhouse Gas Emissions and Consideration of Climate Change in National Environmental Policy Act Documents (January 2010). This IM provided guidance on analyzing greenhouse gas emissions and addressing changing climate conditions in NEPA documents. The IM expired in October 2011. 3. BLM IM No. 2008-171, Guidance on Incorporating Climate Change into Planning and NEPA Documents (August 2008). This IM transmitted draft guidance on incorporating climate change considerations into the Land Use Planning/NEPA analysis process, and requested feedback from the BLM states on their experience with incorporating climate change into NEPA documents. 4. BLM Land Use Planning Handbook II-1601-1 (2005). BLM's land use planning regulations and handbook provide broad guidance on the development of land use plans. The handbook guidance includes the consideration of climate change. BLM has also developed tools and a report to assist in assessing emissions, including the following: 1. Tool: BLM Emissions Inventory Toolkit. The BLM Washington Office is developing an Emissions Inventory Toolkit, scheduled for completion in September 2017, which would consolidate and enhance existing emissions inventory tools that have been 7 developed in recent years to address requirements from the Clean Air Act. The Emissions Inventory Toolkit would be a web-based application for calculating emissions from criteria pollutants, hazardous air pollutants and greenhouse gases. It would store emissions inventories from various projects to assess cumulative emissions, and would include a modeling component for near-field impacts analysis. The toolkit would include a library to store documents and reports, and would be useful in streamlining air analyses forNEPA and General Conformity requirements and showing whether air quality standards or management goals would be met. 2. Tool: BLM Colorado Emissions Inventory Calculator. The BLM Colorado emissions calculator estimates air resources emissions, including greenhouse gases, with the goal of providing technical consistency and efficiency in gathering data on emissions-generating activities for use in NEPA analyses. The ability of the tool to gather information from external sources to be compiled for analysis has led to faster processing times for projects requiring air analysis. This tool would be consolidated into the BLM Emissions Inventory Toolkit mentioned above. 3. Tool: BLM Oregon/Washington carbon calculators. Four of the BLM western Oregon Districts have developed carbon storage and greenhouse gas calculators to support environmental analyses, primarily timber sales. Key features of these tools would be consolidated into the BLM Emissions Inventory Toolkit mentioned above. 4. Tool: BLM New Mexico emissions calculators. In New Mexico, the BLM has three calculators available to estimate air resources emissions, including greenhouse gases, for use in NEPA environmental analysis documents associated with applications for permit to drill and oil and gas lease sales. Key features of these tools would be consolidated into the BLM Emissions Inventory Toolkit mentioned above. 5. Report: Greenhouse Gas & Climate Change Report. The Greenhouse Gas and Climate Change Report provides a database and air emissions tool to calculate greenhouse gas emissions for the base year database and the out-year projections for 10 western states. The report includes emissions associated with production and consumption activities, separated by Federal and non-Federal lands for coal, oil, natural gas, and natural gas liquids, for incorporation by reference into NEPA analyses. The reports would be housed in the library section of the BLM Emissions Inventory Toolkit mentioned above. In addition to the policies and tools listed above, the BLM has taken a wide variety of actions over the years to assess and address the risks associated with wildland fire, invasive plants and animals, drought and other environmental changes that may be caused, in part, by climate change. Wildland fire, invasive plants, drought, and other issues are included in EO 13653 and the President's Climate Action Plan. Because addressing these issues is an inherent part of BLM's land management responsibilities, related policies and actions are pervasive throughout the BLM. Most of these policies and actions began before the EO and associated documents were issued. In the Department's Adaptation Strategy in response to the Climate Action Plan, the BLM is tasked with continuing landscape-level planning efforts and conducting vulnerability assessments, both of which the BLM does when assessing resource conditions and planning for land uses. The Strategy also called for the BLM to consider climate change when modifying 8 agency facilities, which we do by considering opportunities to make buildings more "green" when completing audits and conducting building upgrades; to include climate change considerations in outreach programs; to develop native seed that is adapted to local conditions; and to support the National Cohesive Wildland Fire Management Strategy. BLM has taken actions in all of these areas, as well as others to address fire, invasive species, drought and other threats impacting the public lands. Examples of such adaptation actions include the following: helping develop and implement the National Cohesive Wildland Fire Management Strategy; participating in the work of the National Invasive Species Council; working with the State of Montana and the National Drought Resilience Partnership to build drought resilience in the Upper Missouri River Basin; synthesizing and considering ecoregional information related to impacts of climate change on the resources BLM manages in land use planning; and partnering with individual livestock permittees to adapt their operations to be more resilient to wildland fire and drought. NEXT STEPS In responding to SO 3349, the BLM has focused primarily on policies that have been adopted since the date of the documents specified in the Order. However, we have included certain earlier policies to provide content and a history of how these policies have evolved over time. The BLM has applied mitigation and considered climate change in its decision-making and use authorizations for years, encompassing thousands of individual actions and decisions. As noted previously, several laws, such as the National Historic Preservation Act and the National Environmental Policy Act, require the BLM to consider mitigation and/or climate change in its decision-making processes. Courts have also weighed in on the need for the BLM to consider both mitigation and climate change, including greenhouse gas emissions. The BLM recommends T (b) (5) When the Deputy Secretary informs the Assistant Secretary for Land and Minerals, in accordance with Section 5(a)(ii) of SO 3349, about how to proceed in modifying the BLM's mitigation policy, the BLM requestd (b) (5) When the Deputy Secretary informs the Assistant Secretary for Land and Minerals, in accordance with Section 5(b)(ii) of SO 3349, about how to proceed in modifying the BLM's climate change policy, the BLM requestsl (b) (5) 9 10