Volume 5, Number 13 - June 23, 2005
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Final grazing EIS released
Last week, the Bureau of Land Management announced the availability of its national final environmental impact statement on livestock grazing. The FEIS concludes upcoming grazing regulation changes will produce long-term benefits for public rangelands.
"This environmental impact analysis underscores grazing's role as a vital use of public lands in the rural West," said Rebecca Watson, assistant secretary of the Interior for Land and Minerals. "The revisions will improve BLM's management of public lands ranching, an activity that not only supports rural economies, but also preserves open space and wildlife habitat in the rapidly growing West."
The BLM received more than 18,000 comments on the draft EIS and a proposed set of regulations, which preceded the agency's work on the final version of those documents.
The new grazing regulations, to be published next month in the Federal Register, are aimed at improving BLM's working relationships with public lands ranchers. The revisions also reflect the agency's commitment to managing public lands for multiple uses, including grazing, while ensuring the health and productivity of these lands.
The revisions will retain key elements of the "Rangeland Reform" initiative that revised grazing regulations nearly a decade ago. Specifically, the regulations will continue the role of BLM's Resource Advisory Councils, composed of citizens across the West who advise and make recommendations to the agency on public-land issues. The revised regulations will also leave intact the rangeland health standards and guidelines developed by the RACs.
The BLM's proposed action would:
• Require BLM to follow a consistent approach in analyzing and documenting the relevant social, economic and cultural effects of proposed changes in grazing preference and incorporate such analyses into appropriate National Environmental Policy Act documents.
• Require a phase-in of changes in grazing use of more than 10 percent over a five-year period, consistent with relevant law.
• Provide prospectively for joint ownership of range improvements - changes would allow the BLM and a grazing permittee, or other co-operator, to share title to certain permanent structural range improvements, such as fences, wells or pipelines, which are constructed under a Cooperative Range Improvement Agreement.
• Require BLM to cooperate with Tribal, state, county and local government-established grazing boards in reviewing range improvements and allotment management plans on public lands.
• Remove the three-consecutive-year limit on temporary non-use of a grazing permit but continue to require the BLM to review non-use annually to make sure it is still necessary, whether for resource conservation, enhancement, protection or for personal or business purposes.
• Require standards assessments and monitoring of resource conditions to support BLM determinations of whether existing grazing management practices or levels of grazing use on public lands are significant factors in failing to achieve standards and conform with guidelines.
• After a determination that grazing practices or levels of use are significant factors in failing to achieve standards and conform to guidelines, provide additional time for BLM to formulate, propose and analyze actions; to comply with all applicable laws; and to complete all consultation, cooperation and coordination requirements before reaching a final decision on appropriate actions.
• Eliminate the "conservation use" permit regulatory provisions to comply with the 10th Circuit Court of Appeals decision in Public Lands Council v. Babbitt.
• Expand the definition of "grazing preference" to include an amount of forage on public lands attached to a rancher's private base property, which can be land or water. This expanded definition, similar to one that existed from 1978 to 1995, makes clear that grazing preference has a quantitative meaning (forage amounts, measured in animal unit months) as well as a qualitative one (priority of position "in line" for grazing privileges).
• Modify the definition of "interested public" to ensure that only those individuals and organizations that actually participate in the process are maintained on the list of interested publics. The regulations with respect to the interested public are also revised to improve efficiency in the BLM's management of public lands grazing by reducing the occasions on which the BLM is required to involve the interested public. Under the regulatory changes, the BLM could involve the public in such matters as day-to-day grazing administration but would no longer be required to do so. The BLM would continue to require consultation, cooperation and coordination with the interested public in grazing planning activities such as allotment management planning or range improvement project planning.
• Provide flexibility to the federal government in decisions relating to livestock water rights by removing the requirement that the BLM acquire, perfect, maintain and administer water rights in the name of the United States to the extent allowed by state law.
• Clarify that an applicant for a new permit or lease will be deemed to have a record of satisfactory performance when the applicant has not had any federal or state grazing permit or lease canceled, in whole or in part, for violation of the permit or lease within the 36 calendar months immediately preceding the date of application, and a court of competent jurisdiction has not barred the applicant or an affiliate from holding a federal grazing permit or lease.
• Clarify what is meant by "temporary changes in grazing use within the terms and conditions of the permit or lease." Under the 1995 regulations, BLM can approve temporary changes in grazing use within the terms and conditions of a permit or lease. The final rule clarifies that "temporary changes in grazing use within the terms and conditions" means temporary changes to livestock number, period of use, or both, that would result in non-use or in grazing use where forage removal does not exceed the amount of active use specified in the permit or lease and such grazing use occurs not earlier than 14 days before the begin date specified on the permit or lease and not later than 14 days after the end date specified on the permit or lease.
• Increase certain service charges to reflect more accurately the cost of grazing administration.
• Clarify that if a grazing permittee or lessee is convicted of violating a federal, state or other law, and if the violation occurs while he is engaged in grazing-related activities, the BLM may take action against his grazing permit or lease only if the violation occurred on the BLM-managed allotment where the permittee or lessee is authorized to graze.
• Provide the authority for the BLM to issue an immediately effective decision on non-renewable grazing permits or leases or on applications for grazing use on designated ephemeral or annual rangelands. Also, clarify how the BLM's grazing decision is affected if a decision on non-renewable permits or leases or a decision on applications for grazing use on ephemeral or annual rangelands is "stayed" pending administrative appeal.
Under the final rule, if a stay on an appeal of such a decision is granted, the decision would be inoperative and, if appropriate, considering the specific stay, the livestock may have to be removed from the allotment.
• Clarify how BLM will authorize grazing when Office of Hearing Appeals stays all or part of a BLM grazing decision affecting a permit or lease. Such decisions may cancel, suspend or change terms and conditions of a permit or lease during its current term; renew a permit or lease; or grant or deny a permit or lease to a preference transferee. Under the final rule, if OHA stays all or part of such a decision, then the BLM will, with respect to any stayed portions of the decision, authorize grazing use on the allotment(s) or portions of the allotment(s) in question pursuant to terms or conditions that are the same as the permit or lease that immediately preceded BLM's decision, subject to any other provisions of the stay order.
• Clarify that a biological assessment or biological evaluation, prepared in compliance with the Endangered Species Act, is not a decision and therefore is not subject to protest or appeal.
The FEIS also includes a modified alternative that contains revisions similar to those of the proposed action, with the following exceptions:
• Makes the provision that requires phase-in of grazing decreases (and increases) of more than 10 percent over a five-year period discretionary rather than mandatory.
• Extends the present three-consecutive-year limit on temporary nonuse of a grazing permit to a five-consecutive-year limit rather than unlimited consecutive years as proposed.
• Allows for discretion by the BLM manager in deciding what data are necessary to support evaluations of whether an allotment is meeting standards and conforming to guidelines and to make a determination as to whether existing grazing management practices or levels of factors in failure to achieve standards and conform with guidelines.
• Eliminates several federal or state laws and regulations from the list of prohibited acts identified in the existing regulations, including laws and regulations regarding placement of poisonous bait or hazardous devices; application or storage of pesticides, herbicides or other hazardous materials; alteration or destruction of natural stream courses; pollution of water sources; illegal take, destruction or harassment of wildlife and illegal removal or destruction of archaeological or cultural resources. The consequence would be that a permittee or lessee who is convicted and penalized for violating these state or federal laws would not be subject to having his permit or lease withheld from issuance, suspended or cancelled.
• Adds as a prohibited act, failure to use certified weed seed-free forage, grain, straw or mulch when required by the authorized officer.
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