On March 14, 2024, the Bureau of Land Management (BLM) published a draft Environmental Impact Statement (“EIS”) and Resource Management Plan (“RMP”) Amendment laying out six different potential approaches to managing federal public lands that contain greater sage-grouse (“sage-grouse”) habitat. BLM is considering amendments to 77 RMPs, potentially changing the way that up to 69 million acres of federal lands are managed in a large swath of the West including in areas of California, Colorado, Idaho, Montana, Nevada, North Dakota, Oregon, South Dakota, Utah and Wyoming. Although sweeping in its scope, this alert highlights several of the more important provisions with implications for projects on federal lands.
Sage-grouse protections have a fraught history in the West. The sage-grouse, best known for its stark appearance and iconic mating dance, makes its habitat in the open sagebrush plains of many Western states. This habitat is contentious, however, because it often overlaps with the most conducive areas to drill for oil and gas, mine, and construct renewable generation and transmission facilities. BLM’s multiple use mandate brings a level of uncertainty to decision-making involving natural resource development on those federal lands.
In 2015, the federal government adopted more than 70 management plans protecting sage-grouse habitat. Following the 2015 RMP, the U.S. Fish and Wildlife Service declined to list the sage-grouse as threatened or endangered under the Endangered Species Act, which would have significantly restricted development projects in sage-grouse habitat. In 2019, the federal government revised the 2015 RMP, largely by incorporating state-specific wildlife management laws and policies to the federal management scheme. On October 16, 2019, a federal court preliminarily enjoined the BLM from implementing the 2019 revisions. Since then, BLM has been managing sage-grouse habitat according to the plans adopted in 2015.
BLM’s proposed preferred alternative (Alternative 5) attempts to balance sage-grouse protections that were included in the 2015 RMP with the flexibility states clamored for in the 2019 revisions. The proposal thus far has garnered a mixed reaction from environmental groups and project proponents. Some regulated entities have cautioned that the plan improperly proposes a one-size-fits-all solution to what is recognized as a highly variable, state-specific issue. Meanwhile, some environmental groups have said the plan does not go far enough. Potentially of interest, BLM’s preferred alternative includes:
- Designation of 34,803,000 acres of BLM-administered land as priority habitat management areas that would mandate setbacks, development density or disturbance caps.
- Consideration of options with fewer restrictions on resource uses and greater opportunities for using compensatory mitigation to offset impacts from development.
- Certain limitations and buffer areas for certain types of federal land development in the proximity of priority habitat management areas or in some cases, active leks (For example, priority habitat management areas would generally be avoidance areas for utility scale wind and solar development subject to exceptions and major transmission rights of way. No surface occupancy stipulations would be included in priority habitat management areas for fluid minerals and within a certain distance of leks in Wyoming specifically. Saleable minerals in priority habitat areas would be generally closed to saleable mineral extraction, except in Wyoming, which would be open subject to occupancy, seasonal limitations, disturbance and density.).
- Under the preferred alternative, sagebrush focal areas as created in the 2015 RMP would instead be managed as priority habitat management areas, and as such, would not include a recommendation for withdrawal from mineral location and entry under the Mining Law of 1872 and prioritization for various other activities related to vegetation treatments, livestock grazing and wild horses and burros. This is discussed as Alternative 1 in the draft EIS.
- While the preferred alternative does not propose any areas of critical environmental concern (“ACEC”), two other alternatives would designate more than 11 million acres as ACEC, including nearly 840,000 acres in Wyoming. Such designations would require additional special management and would significantly limit development by, among other things, potentially prohibiting or severely limiting rights of way, future mineral leasing and disposition of locatable minerals.
- Certain leasing stipulations that vary by state and specific subsurface mineral type.
Given the breadth of BLM’s proposal and the significant potential impacts to project development across the West, it will be critical for entities with projects or proposed projects on federal lands to review and comment on the draft EIS. BLM is currently soliciting comments on the draft EIS by June 13, 2024, and comments on ACECs by May 14, 2024, and will hold 13 public meetings in the interim. The Brownstein Natural Resources team has extensive experience advising clients in the federal public land leasing and permitting issues and developing comment letters in federal rulemaking. For more information, please contact the Brownstein Natural Resources team.
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