# Notice of Final Action To Adopt Revisions to the Bureau of Land Management's Procedures for Managing the NEPA Process, Chapter 11 of the Department of the Interior's Manual Part 516

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URL: https://www.frixlaw.com/law-library/documents/fr%3AE7-15746

## Record

- **Collection:** Federal Register
- **Document type:** Notice
- **Published:** August 14, 2007
- **Citation:** 72 FR 45504

## Text

DEPARTMENT OF THE INTERIOR
Bureau of Land Management
[516 DM 11; WO-210-1610 24 1A]
Notice of Final Action To Adopt Revisions to the Bureau of Land Management's Procedures for Managing the NEPA Process, Chapter 11 of the Department of the Interior's Manual Part 516

AGENCY:

Bureau of Land Management, Interior.

ACTION:

Notice of final action.

SUMMARY:

The Bureau of Land Management (BLM) gives notice of revised policies and procedures for implementing the National Environmental Policy Act (NEPA), as amended, Executive Order (E.O.) 11514, as amended, E.O. 12114, and Council on Environmental Quality (CEQ) regulations implementing NEPA. These final implementing procedures are being issued as Chapter 11 of the Department of the Interior's Departmental Manual Part 516 (516 DM 11) and supersedes previous implementation guidance. These revisions update the procedures used to implement NEPA for actions taken in managing public lands. The BLM's NEPA compliance procedures can be found at the Department of the Interior (DOI) Electronic Library of Interior Policies (ELIPS)
http://elips.doi.gov.

The following sections in 516 DM 11 (dated 5/27/04) are affected by this
Federal Register
notice: Purpose (11.1); NEPA Responsibilities (11.2); External Applicant's Guidance (11.3); General Requirements (11.4), Parts A-G; Plan Conformance (11.5); Existing Documentation (11.6), Parts A-E; Actions Requiring an Environmental Assessment (11.7), Parts A-E; and Actions Eligible for Categorical Exclusions (11.9), categories B-D and G-J. New sub-parts have been added to the Oil, Gas and Geothermal Energy (B), Forestry (C), and Rangeland Management (D) categories. Two new categories have been added: Recreation Management (H) and Emergency Stabilization (I). Transportation category sub-parts G(1), (2), and (3) have been expanded to include trails.

DATES:

Effective Date:
The revised 516 DM 11, including changes and additions to the categorical exclusions (CXs), is effective upon the date of publication of this notice in the
Federal Register
.

ADDRESSES:

The BLM's revisions to 516 DM 11 can be accessed electronically via the Internet at
http://elips.doi.gov.
Hard copies are available by contacting Peg Sorensen, Division of Planning and Science Policy, at 202-452-0364.

FOR FURTHER INFORMATION CONTACT:

Peg Sorensen, Division of Planning and Science Policy, at 202-452-0364.

SUPPLEMENTARY INFORMATION:

Final revised NEPA procedures for the DOI were published in the
Federal Register
(69 FR 10866-10866, March 8, 2004), and (70 FR 32840-32844, June 6, 2005). The DOI bureau and office specific procedures are published as chapters in Part 516 of the Departmental Manual. The 516 DM 11 addresses the BLM policy and procedures to assure compliance with the spirit and intent of NEPA.

A notice of the proposed revisions to the BLM's “National Environmental Policy Act Revised Implementing Procedures” for 516 DM 11 was published in the
Federal Register
(71 FR 4159-4167, January 25, 2006), with additional information available at
http://www.blm.gov/planning/news.html.
A 30-day public comment period followed that publication. Consideration of the comments received resulted in the following modifications to the proposed revised implementing procedures.

11.1. Purpose:
No Change.

11.2. NEPA Responsibilities:
Edited title to emphasize that there are multiple responsibilities.

Parts A-E:
Edited to improve readability.

Parts B-E:
Clarified executive and delegated leadership responsibilities.

Parts E & F:
Moved sub-part E(1) to a new part F.

11.3.

External Applicants' Guidance:
Edited title to clarify that this section only applies to external applicants who are proposing an action. Language was added from the NEPA to clarify text within the section.

Part A. General
, sub-parts A(2)-(4): Edited to improve readability.

Sub-part A(3):
Replaced the “State Director” with “the Responsible Official” to clarify that the authorized activity is not limited to State Directors.

Part B. Regulations, preamble:
Edited to improve readability.

11.4. General Requirements:

Part A-H:
Revised section titles to create parallel structure. Edited and reorganized all sections to clarify requirements and improve readability.

Part A:
Added “integrating NEPA requirements with other environmental review and consultation requirements” (from the former part D) to reduce paperwork and delays.

Part B:
Addressed the elimination of duplicate tribal, State, and local government procedures, and the use of common databases and joint planning processes, meetings, investigations, and NEPA analyses.

Part C:
Addressed consultation and coordination requirements.

Part D, sub-parts (1) & (2):
Addressed public involvement requirements. Eliminated the reference to “consensus-based decision-making” and replaced it with “consensus-based management” to be consistent with direction provided by the DOI. Inserted the DOI's definition of “consensus-based management” and expectations regarding the process.

Part E:
Redefined “adaptive management” to match the DOI definition.

Part F:
Clarified a training requirement for the BLM employees facilitating public and community involvement.

Part G:
Clarified action limits during environmental review.

11.5 Plan Conformance:
Edited to improve readability. Clarified what the Responsible Official's options are when a proposed action does not conform to an approved plan.

11.6 Existing Documentation (Determination of NEPA Adequacy):
Edited the title to create a section header that conforms to a standardized format. This section was rewritten to clarify the BLM's policy regarding the use of existing documentation. Operational information on how to conduct a Determination of NEPA Adequacy (DNA) will be provided in the BLM NEPA Handbook (H-1790-1).

11.7 Actions Requiring an Environmental Assessment (EA):

Part A:
Moved part A information to a new part D. Part A now defines the purpose and need for an EA.

Part B:
Inserted a new requirement to consult 40 CFR 1508.9(b) which outlines “discussion” requirements in an EA.

Part C:
Edited to clarify and enhance general understanding of when an EA is appropriate.

Part D:
Directs the Responsible Official to consider an EA if there are uncertain impacts.

Part E:
This new part directs the Responsible Official to prepare an Environmental Impact Statement (EIS) if it is determined that a CX or an EA is not appropriate. Removed unnecessary text “processed in accordance with 40 CFR 1502.”

11.8 Major Actions Requiring an Environmental Impact Statement (EIS):

Part A(1):
Refined the text to clarify criteria used to consider when determining whether to prepare an EIS level analysis or not. Removed the following statement: “or the impact

analysis of an action is likely to be highly controversial.” This edit was made to clarify the criteria the BLM considers when determining whether an EIS level analysis is needed. Supplementary guidance on how to determine significance when considering whether to prepare an EIS, such as when effects should be considered “highly controversial,” will be placed in the BLM NEPA Handbook (BLM H-1790-1).

Part B:
Dropped the term “Wilderness” from the list of actions typically requiring an EIS. This edit reflects current program policy that there will no longer be proposals to designate Wilderness Areas under Section 603 of FLPMA. Supplementary guidance on how to implement policy regarding preparation of EISs will be placed in the BLM NEPA Handbook (BLM H-1790-1).

Part C:
Removed unnecessary text “processed in accordance with 40 CFR 1501.4(e)(2).”

11.9 Actions Eligible for a Categorical Exclusion:

Preamble: Replaced “exceptions” with “extraordinary circumstances” to reflect a revision to 516 DM 2.3A(3) made by the DOI in June 2005. Added a statement identifying the DOI-wide CX in 516 DM 2, appendix 1, available for the BLM consideration. The BLM reviewed supporting data and conclusions of no significant effect for all proposed CXs based on comments received. Identified below are revisions to final CX language based on this review. Some additional information was added to the administrative file based on the review. In addition, the BLM reviewed the proposed CXs and this final action establishing the final CXs in light of CEQ's proposed guidance, “Establishing, Revising and Using Categorical Exclusions under the National Environmental Policy Act,” (71 FR 54816-54820, September 19, 2006). The BLM believes that the establishment of the new CXs is consistent with CEQ's proposed guidance. Based on discussions, review, and to clarify the intent of the BLM, language has been added indicating the need for all proposed actions and activities to be, at a minimum, consistent with the DOI and the BLM regulations, manuals, handbooks, policies, and applicable Land Use Plans (LUP) regarding design features, Best Management Practices, Terms and Conditions, Conditions of Approval, and Stipulations.

A. Fish and Wildlife:
Fixed a typographical error in sub-category (2) by replacing “value” with “valve.”

B. Oil, Gas, and Geothermal Energy:

Sub-category (6):
Removed text “including the establishment of terms and conditions,” and edited language to more accurately describe the actions covered.

Sub-category (7):
The BLM has decided not to finalize this proposed CX (CX B(7)) for the category of actions described as, “approving the drilling or subsequent operations of a geothermal well within a developed field for which a LUP and/or an environmental document, prepared pursuant to NEPA, analyzed such drilling as within the scope of a reasonably foreseeable future activity.” When these actions are within the scope of the previous NEPA document and sufficiently analyzed therein, and that determination is documented, no further NEPA analysis is required. In consultation with CEQ, the BLM has decided that more focused NEPA documents should be prepared at the outset to support subsequent implementation of the geothermal field development plan or utilization plan, and that this practice, combined with a DNA, would provide a more appropriate method for streamlining the documentation of the evaluation of subsequent infill well proposals than a new CX.

Sub-category (8):
The BLM has decided not to finalize this proposed CX. In consultation with CEQ, it was determined that the action of issuing a geothermal site license or operational permit (CX B(8)) is an administrative/ministerial function subsequent to the approval of a utilization plan. Approval of a utilization plan involves analysis of the environmental effects of constructing and operating the planned facility. The administrative action of issuing the site license and permit to operate does not result in additional environmental effects. Therefore, the BLM will eliminate this additional NEPA review, as unnecessary and redundant.

C. Forestry:

Sub-category (6):
Modified the proposed language and format to eliminate confusion about the sample tree area limitation and restricted activities. Added Lakeview District, Klamath Falls Resource Area to the list of locations where this CX may be used. The Resource Area was mistakenly left out of the proposed limitation and is now included because the effects are comparable to the others previously listed in this section.

Sub-categories (7)-(9):
Modified the proposed format and syntax. Text that defines and limits “temporary road” building activities was added to be consistent with the U.S. Forest Service (FS) standards and regulations. Text that defines and clarifies “a dying tree” was added for purposes of this category of actions.

Sub-category (9):
Modified the example (a) by replacing southern pine beetle with mountain pine beetle to represent a type of beetle that occurs in western Oregon.

D. Rangeland Management:

The National Research Council published
Rangeland Health: New Methods to Classify, Inventory, and Monitor Rangelands
in 1994. The concepts identified in that publication were incorporated in the BLM's grazing regulations and the agency used the term “rangeland health” in much of their initial policy and guidance related to implementing those grazing regulations. Although the term “rangeland health” was first introduced in the grazing regulations, the “rangeland health standards” really apply to the condition of the land itself regardless of the uses that may influence the health of that land. As a result, the BLM has begun using the term “land health” to avoid the misperception that these concepts only apply to the grazing program. For this reason, the term “land health” is used in the description of this proposed CX, even though both terms are likely to be found within this document or in other background material supporting this document. Use of the term “land health” does not represent any substantive change in the original definition, concept or use of the term “rangeland health” and the reader should view these terms as interchangeable. The proposed rangeland management sub-categories (10) and (11) are finalized with the following changes:

Sub-category (10):
Lettered the bullet statements, so the first bullet is criteria (a); moved text (bullets two & three) “shall be conducted consistent with the BLM and Departmental procedures and applicable land and resource management plans (RMP);” from here to the general CX introduction to reflect that text applies more generally and not only to this CX. Modified text of bullet four to exclude use of this CX for otherwise qualifying “vegetation management activities” in Wilderness Study Areas and text becomes new criteria (b). Modified bullet five to become criteria (c) and added text to indicate that the CX cannot be used for biological treatments. Finally, added text to define and limit the use of temporary roads as criteria (d) and (e).

Sub-category (11):
Moved criteria (a) to (b) and modified the phrase “not meeting standards solely due to factors

other than existing livestock grazing” to “not meeting land health standards due to factors that do not include existing livestock grazing.” Changed the text to clarify that the CX requires land health assessments be completed prior to considering the application of the CX. Dropped proposed criteria (b) and replaced it with criteria (a) that limits the leases/permits eligible for the CX to those where the lease/permit is consistent with the use specified in the previous lease/permit, there is no change in the type of livestock, the previously authorized active use is not exceeded, and grazing does not occur more than 14 days earlier or later than specified on the previous lease/permit.

Sub-category (12):
Dropped the proposed CX based on further review of supporting data.

E. Realty:

The proposed revision of sub-category (16) was dropped upon further review.

F. Solid Minerals:
No change was proposed or made.

G. Transportation:

Sub-categories (1), (2), and (3):
The word “existing” which originally was used in (1) and (2) has been eliminated because it was potentially confusing, and the words “and trails” have been approved as proposed.

Sub-category (1) and (2):
Replaced “Incorporating” for “Placing” in sub-category (1), and added “eligible” to modify the language to clarify that only roads and trails meeting criteria developed in a LUP are to be incorporated into the transportation plan, or be subject to the actions specified in sub-category (2).

H. Recreation Management:

Sub-category (1):
The proposed revision of the previous Category “H. Other” to “Recreation Management and sub-category “H(5)” to “H(1)” was approved as revised. Increased the day and overnight use threshold to 14 consecutive nights to be consistent with the practice of Responsible Officials under provisions in Title 43 of the Code of Federal Regulations (CFR) that allow such officials to set allowable length of stay applicable to any casual visitor using public lands (See 43 CFR 8365.1-2 “Occupancy and Use,” and 43 CFR 8365.1-6 “Supplementary Rules”). This change has also been made to provide consistency with the typical length of stay for any casual visitor using public lands (43 CFR 8364). Changed wording from “contiguous acres” to “staging area acres” to better define the limits on area of impact. Replaced “travel management areas or networks that are designated in an approved LUP” with “recreational travel along roads, trails, or in areas authorized in a LUP” because of confusion over what constitutes a travel management area or network. Text was added to include a limitation that this CX cannot be used for the establishment or issuance of Special Recreation Permits (SRP) for “Special Area” management (43 CFR 2932.5). The requirement for Special Area SRPs and the issuance of individual SRPs in “Special Areas” must be directed by specific land use planning decisions and commensurate NEPA analysis.

I. Emergency Stabilization:
This new section was adopted as proposed with the addition of text to define and limit the use of temporary roads. The section included a requirement to treat temporary roads for rehabilitation.

Sub-category (1)(e):
Moved text “shall be conducted consistent with the BLM and the Department procedures, applicable land and RMPs.” to general CX introduction to reflect that text applies more generally and not only to this CX. Renumbered numbered criteria based on the removal of this text.

J. Other:
The previous existing sub-part H was moved to sub-part J and adopted as proposed with one exception. An existing CX was mistakenly left out of the January 25, 2006,
Federal Register
notice. The following existing CX will be placed in sub-part J (12): “Rendering formal classification of lands as to their mineral character and waterpower and water storage values.” There is no change to the language.

Appendix 11.1:
The DNA Worksheet appendix was deleted. Supplemental guidance regarding the use of Existing Documentation remains in section 11.6.

Comments on the Proposal

The BLM received more than 72,000 “comments” during the 30-day comment period (January 25, 2006, to February 24, 2006). A “comment” is a single, whole submission that may take the form of a letter, postcard, email, or fax. These comments came from private citizens, elected officials, and groups and individuals representing businesses, private organizations, and state and federal agencies. All comments received were considered in preparing this final action notice.

Public comment on the proposed revisions addressed a wide range of topics. Many comments support one or more of the proposed revisions or favor broadening the scope of the revision, while many others oppose one or more of the proposed revisions or recommend more narrowly limiting the qualifying criteria for a particular CX. Some comments state that the 30-day comment period provided insufficient time to review and comment on the BLM's proposed revisions. The BLM received extensive and varied comments during the 30-day comment period. Based on this robust response, the BLM determined that it was unnecessary to extend the public comment period. Some general comments state that the BLM is using dated and inadequate scientific information to support management decisions. They recommend that the BLM adopt a specific process to systematically incorporate the best available science in all elements of the BLM public lands management. The BLM Science Strategy (September 2000) discusses the role of science in the BLM management of the public lands, and articulates a conceptual framework for integrating science into the BLM decision-making process. Relevant scientific information is brought to the decision-maker's attention by members of the interdisciplinary team of professionals, and through contract and in-house investigations, science sharing forums, and technical reports. In addition, the public, cooperators and partners bring scientific information forward during the environmental review process. Many comments addressed matters beyond the scope of the proposed revisions to the 516 DM 11. These included requests for the BLM to add policy statements to the 516 DM 11 pertaining to conformance with the Clean Air Act, preserving and honoring valid existing rights, and conducting cost-benefit analyses. Some comments addressed land management activities that were neither proposed nor analyzed. Some comments state that grazing is incompatible with good land stewardship. Other comments suggested that the proposed changes to 516 DM 11 “denied [the public] their constitutional rights” or would “cause unrestricted use” of public lands. Responses to most out-of-scope comments are not provided.

Responses to Specific Comments on Sections 11.1-11.8

11.1 Purpose

Comment:
Some comments ask how to access 516 DM 11 and the DOI's Environmental Statement Memoranda (ESM).

Response: The BLM provided the Web site address to access procedures (516 DM 11) that are being replaced by this
Federal Register
notice in the Summary portion of 71 FR 4159-4167, January 25, 2006. The proposed changes to these procedures were published in full in the same
Federal Register
notice and were

posted on the DOI, ELIPS Web site in the Departmental Manual chapters at
http://elips.doi.gov.
The DOI's ESMs can be accessed through the DOI's Web site at
http://www.doi.gov/oepc
via the descriptions in the left-hand column.

11.3 External Applicants' Guidance

Comment:
Some comments ask for information to guide applicants interested in the BLM program regulations.

Response:
The purpose of this section is to provide guidance to external parties making applications to the BLM. The title has been changed to make this clear. A list of potentially relevant regulations is located in part B. Additional regulations, policies, directives, and guidelines that affect BLM programs may be provided when the applicant contacts a Responsible Official and describes their proposed action(s).

Comment:
A concern was expressed about the absence of NEPA compliance in the “applicants” guidance” section.

Response:
The text has been clarified to address NEPA requirements for private applicants and other non-federal entities as required by 40 CFR 1501.2(d).

11.4 General Requirements

Comment:
Some comments state that local, state, and federal agencies should not be provided “cooperating agency status” because it blurs the lines of NEPA responsibility.

Response:
The NEPA regulations specifically provide for and encourage the use of “cooperating agencies” (40 CFR 1501.6). The participation of other agencies in the BLM's NEPA processes in no way “blurs” the BLM's status as the agency responsible for the NEPA analysis and the associated decision-making affecting public lands.

Comment:
Some comments ask the BLM to revise the language regarding consensus-based decision-making to clarify that only federal managers have decision-making authority.

Response:
The new language in 516 DM 11.4 D(2) has been added to describe consensus-based management (as per ESM 03-7) and to clarify that the BLM has exclusive responsibility for decision-making.

Comment:
Some comments recommend that more detailed guidance be placed in 516 DM 11 to promote consistency between the BLM offices undertaking public involvement.

Response:
The recommended detailed guidance will be considered for placement in the BLM's NEPA Handbook (H-1790-1). The BLM's public involvement guidance in 516 DM 11 is consistent with policies and procedures specified in the NEPA, E.O.s 11514 and 12114, and CEQ regulations. Federal decision-makers have discretion as to how they enable public involvement because of the broad range and variety of potential proposed actions and public interests at stake.

Comment:
Some comments state that the BLM should revise 516 DM 11 to require public notice about “decision documents” and Findings of No Significant Impacts (FONSIs) statements.

Response:
The CEQ regulations implementing the NEPA have specific public notification requirements. The BLM will consider adding more specific guidance regarding public notice of a FONSI in the BLM NEPA Handbook (H-1790-1). Distinct from its obligations under the NEPA, the BLM is required under other statutes to provide public notification regarding management decisions. This notification is done in accordance with program specific regulations and guidance.

Comment:
Some comments state that the public's involvement in the NEPA process should be more limited, while other comments state that the public should be given more involvement opportunities than they are currently provided.

Response:
The CEQ regulations implementing the NEPA require agencies to involve the public in the environmental analysis process. The timing of public involvement for EISs is set by regulation; however, the timing and manner of the subject involvement for EAs and CXs is left to the discretion of the Responsible Official. The BLM is not changing existing public involvement procedures as a part of the process of revising this 516 DM 11.

Comment:
Some comments suggested that the BLM revise 516 DM 11 to provide further guidance regarding facilitating public involvement during NEPA review processes.

Response:
Because the range of activities the BLM undertakes is so broad and varied, and because public involvement can take many forms, specific guidance on facilitating such public involvement is more appropriate for inclusion in the BLM's NEPA Handbook (H-1790-1). The NEPA Handbook provides operational guidance on how to implement the BLM policy regarding public involvement.

Comment:
Some comments state that the BLM should revise the language in section 11.4 to include reference to the Data Quality Act (Pub. L. 106-554).

Response:
Specific reference to the Data Quality Act in 516 DM 11 was not added. The BLM managers are responsible for ensuring compliance with all applicable laws and regulations including the Data Quality Act.

Comment:
Some comments ask the BLM to prevent excessive data collection during the NEPA analysis.

Response:
The BLM uses best available data or collects new data appropriate to the level of the NEPA analysis needed to make an informed decision regarding the proposed action. The provisions described in 516 DM 11.4(A-C) are intended to aid in this effort, provided that the data and analysis compiled by other permitting agencies is complete, available and sufficient to meet the BLM's needs.

Comment:
Some comments express concern that direction for limiting actions during the NEPA analysis process was too narrowly framed and did not adequately reflect regulatory requirements.

Response:
In addition to noting these limits, the BLM revised section 11.4G to refer readers directly to the CEQ regulation regarding the limitation on action during the NEPA analysis as provided in 40 CFR 1506.1, and to provide guidance to aid in fulfilling the regulations.

Comment:
Some comments point out that the
Federal Register
notice failed to use the DOI's most recently adopted definition of adaptive management (AM).

Response:
The BLM revised the AM definition in 516 DM 11.4E to be consistent with the DOI definition found in 516 DM 4.16.

Comment:
Some comments question the use of AM and request more information about when it should be used. There is concern that AM not be used as sole mitigation to justify a FONSI.

Response:
The BLM does not use AM as a sole mitigation to justify a FONSI. Section 11.4E states that the Responsible Official is encouraged to build AM practices into proposed actions and NEPA compliance activities and train personnel in this important environmental concept. The DOI is developing additional guidance for bureaus on the use of an AM approach to management activities.

Comment:
Some comments state that using AM violates the NEPA by (1) allowing the BLM to defer decisions regarding mitigation—and the impacts that might result if the mitigation fails—without addressing those decisions in a NEPA document; (2) removing significant agency decisions about mitigation, and the possible impacts, from public review and comment; (3) removing significant impacts that may be detected during the monitoring process from NEPA analysis; and (4)

relying heavily on monitoring and evaluation, which the BLM is often unable to support.

Response:
(1) Adaptive Management is a planning tool; it does not relieve the BLM of the responsibility of meeting the requirements of the NEPA or other laws. The use of AM does not permit the BLM to defer “decisions on mitigation and impacts if mitigation fails.” In fact, a more vigorous monitoring strategy will help determine if mitigation is working, and if not, it will help speed up the change in management action or mitigation strategy. Mitigation and impacts will still be addressed in the NEPA document as will the AM process itself. Adaptive Management will not be applied to all resource decisions made. (2) Stakeholder involvement is a critical aspect of AM. New DOI policy clearly links stakeholder involvement to implementation of AM from plan development through implementation. Agency decisions on mitigation and impacts will not be removed from public review and comment and it is hoped that there will be an increased level of public involvement. (3) “Significant impacts” that are detected during monitoring will not be removed from the NEPA analysis. Rather, any actions taken to address “significant impacts” that may arise will themselves be subject to appropriate NEPA review, including appropriate public involvement. It is hoped that a more vigorous stakeholder involvement process using AM will improve the BLM's ability to detect impacts earlier and make the necessary resource management changes in partnership with stakeholders. (4) The AM process will only be used when adequate monitoring and evaluation can be assured. Successful AM is dependent on good monitoring and evaluation. If the monitoring strategy goes unfulfilled, the BLM will need to fall back on a more prescriptive approach.

11.5 Plan Conformance

Comment:
Some comments requested that 516 DM 11 direct the BLM offices to reject proposals unless and until their LUPs are updated to thoroughly address potential environmental consequences.

Response:
Section 11.5 clarifies the requirement for conformance with LUPs, including when a proposal may be rejected.

11.6 Existing Documentation (Determination of NEPA Adequacy)

Comment:
Some comments suggest that 516 DM 11 be revised to prescribe a minimum level of interdisciplinary review for completing a DNA.

Response:
Section 11.6 has been revised to provide policy guidance on the use of existing documentation. Operational specifics on how to implement the policy, such as levels of interdisciplinary review, will be provided in the BLM NEPA Handbook (H-1790-1).

Comment:
Some comments state that the BLM DNA Worksheet does not meet the requirements of NEPA compliance.

Response:
In certain situations, the BLM undertakes a DNA process to review whether a proposed action has already been fully analyzed in a NEPA document. Where the proposed action has not already been analyzed or where it has been analyzed, but new circumstances or information has come to light, appropriate NEPA analysis and documentation will be prepared. Operational guidance on how to implement this policy will be provided in the BLM NEPA Handbook (H-1790-1). The DNA Worksheet in appendix 1 and implementation-specific guidance proposed in the January 25, 2006
Federal Register
notice has been deleted from 516 DM 11.

Comment:
Some comments state that using the DNA Worksheet process provides the potential to overlook environmental differences from widely separated projects and to underestimate the cumulative effects of nearby projects.

Response:
In accordance with 40 CFR 1502.9(c), section 11.6D states that if existing NEPA documentation is inadequate to cover the proposed action, an appropriate level NEPA analysis document will be prepared. The BLM NEPA Handbook (H-1790-1) provides guidance regarding consideration of cumulative impacts when determining whether a DNA can be used.

11.7 Actions Requiring an EA

Comment:
Some comments expressed confusion about the differences between actions typically requiring an EA and some of the same actions proposed in the existing and new CXs.

Response:
The January 25, 2006, proposal included several editorial errors in this sub-part. Sub-part 11.7C(1) was revised for the sake of clarity.

11.8 Major Actions Requiring an EIS

Comment:
Some comments requested clarification of the term “highly controversial” with regard to impacts in sub-part 11.8A(1). The concern centered on whether the term referred to matters of public/political controversy versus matters of scientific controversy.

Response:
This sub-part has been revised to remove the term “highly controversial” as criteria for when an EIS is required. Guidance on how to determine significance, including when effects should be considered “highly controversial” is applied in accordance with CEQ regulations and requires agencies to consider the degree to which effects are likely to be controversial when determining whether to prepare an EIS. The BLM applies the “highly controversial” concept to disagreements about the nature of the effects. Additional clarification and examples will be provided in the BLM NEPA Handbook (H-1790-1).

Comment:
Some comments express concern that the lists of actions that typically require an EA or an EIS were prescriptive, rather than discretionary, and did not allow for any flexibility.

Response:
Although 516 DM 11.7C and 11.8A provide lists of actions generally requiring EAs or EISs respectively, 516 DM 11.7D, 11.7E and 11.8B specify the flexibility or discretion allowed regarding the actions on these lists, based on potential impact significance.

11.9 Categorical Exclusions

Responses to section 11.9 comments are divided into two blocks. Comments of a general nature that may or may not apply to more than one of the proposed CXs are summarized and responded to as “general comments.” Comments specific to a proposed CX are summarized and responded to in order of category (e.g., B. Oil, Gas and Geothermal; C. Forestry; D. Rangeland Management; and so forth) as they occur in 516 DM 11.

General Comments on Categorical Exclusions

Comment:
Some comments state that the CX revisions are illegal; could short circuit important safeguards; circumvent existing laws, E.O., and the BLM policies; violate the BLM's multiple use mission; and provide insufficient protection despite the application of “extraordinary circumstances” (516 DM 2.3(A) and appendix 2).

Response:
The BLM disagrees. The CEQ regulations (40 CFR 1508.4 and 1507.3) authorize Federal agencies to establish and apply CXs. The BLM followed CEQ regulations in proposing additional CXs to reduce paperwork and delays (40 CFR 1500.4 and 1500.5) and enable the BLM to concentrate on environmental issues that are associated with proposed actions that require further analysis in an EA or an EIS. Each of the categories of actions in the new CXs were subjected to an administrative review. This review determined whether there is sufficient supporting

evidence, (based on past NEPA analyses) and a review of actions to support the finding that the activity would not cause individually or cumulatively significant environmental impacts (
http://www.blm.gov/planning/news.html
). When the CXs are used for particular proposed actions, those actions are reviewed to ensure that they do not involve “extraordinary circumstances” and are consistent with all applicable laws for protection of the environment. In addition, proposed actions or activities must be, at a minimum, consistent with the DOI and the BLM regulations, manuals, handbooks, policies, and applicable LUPs regarding design features, best management practices, terms and conditions, and conditions of approval, and stipulations. These reviews ensure proper application of the CXs and act as a “safeguard” (516 DM 2.3(A) and appendix 2). Finally, some of the information collected to prepare the CXs was made available for public review and comment available at
http://www.blm.gov/planning/news.html.
Additional information clarifying these reports is now available at the same Web site. The establishment and use of CXs has been upheld in
Heartwood, Inc.
v.
U.S. Forest Service
, 73 F. Supp. 2d 962, 972-73 (S.D. Ill. 1999),
aff'd
230 F.3d 947, 954-55 (7th Cir. 2000).

Comment:
Some comments indicate support for the CX revisions and some comments would like to expand the categories of activities excluded from further review under NEPA.

Response:
The BLM will continue to compile and review evidence to determine if additional categories of actions should be excluded from additional NEPA review. The BLM may propose additional CXs in the future.

Comment:
Some comments state that the BLM erroneously assumes that “the only function of an EA is to determine whether an EIS is needed.” Therefore, “any EA that resulted in a FONSI need never have been prepared.”

Response:
The BLM disagrees. There are three tasks served by completing an EA as identified at 40 CFR 1508.9(a)(1)-(3). The BLM analyzed past environmental documents, including EAs and FONSIs and the underlying activities in establishing the CXs described in this final action. Categories of actions were considered eligible for CXs when the EAs, FONSIs, and subsequent review of these actions showed no individually or cumulatively significant impacts on the environment.

Comment:
Some comments state an opinion that the BLM should ban the use of CXs.

Response:
The BLM disagrees. The BLM establishes CXs in compliance with the CEQ regulations implementing the NEPA, particularly 40 CFR 1508.4 and 1507.3, which require agencies to develop procedures for establishing CXs for categories of actions that do not normally require either an EA or an EIS. The appropriate use of CXs also reduces paperwork and delays (40 CFR 1500.4 and 1500.5), and enables the BLM to concentrate on issues that are truly significant and merit review in an EA or EIS, rather than amassing needless detail for actions demonstrated not to have significant impacts (40 CFR 1500.1(b)).

Comment:
Some comments, while recognizing that the “extraordinary circumstances” review is to occur before an action is determined to be eligible for use of a CX, express concern that the BLM “often ‘defers’ special status species and/or cultural resource inventories on the sites of proposed actions until after the NEPA process and documentation is complete.” The comments go on to question the BLM practice of “add[ing] stipulations saying that before any actual ground disturbance occurs it will conduct the required inventories and avoid any identified resources.”

Response:
The BLM must comply with the NEPA, as well as all applicable environmental and resource protection laws, such as the National Historic Preservation Act, 16 U.S.C. 470 et seq., and the Endangered Species Act, 16 U.S.C. 1531 et seq. (ESA), before any action is taken. Other than the broad mandate of the Federal Land Policy and Management Act, 43 U.S.C. 1701 et seq., which directs the BLM to prepare and maintain an inventory of resource values, there are no required “inventories.” Rather, the BLM has discretion as to when and how to gather information required to comply with these statutes; that is, sufficient information may come in different forms, including but not limited to inventories. In terms of applying the CXs, the NEPA requires that the BLM first determine whether any extraordinary circumstances exist that would preclude use of a CX. Several of the extraordinary circumstances that the BLM must consider directly address resources mentioned in the comments. For example, extraordinary circumstances prohibiting the use of a CX include instances where an individual action may “have significant impacts on such natural resources and unique geographic characteristics as historic or cultural resources” (516 DM 2 appendix 2(2.2)), “have significant impacts on properties listed, or eligible for listing, on the National Register of Historic Places as determined by either the bureau or office” (516 DM 2, appendix 2(2.7)), or “limit access to and ceremonial use of Indian sacred sites on federal lands by Indian religious practitioners or significantly adversely affect the physical integrity of such sacred sites” (516 DM 2, appendix 2(2.11)). This means that the Responsible Official must have sufficient information regarding “cultural resources” to complete the “extraordinary circumstances” review before a CX can be used to comply with the NEPA.

Comment:
Some comments state that the BLM lacks the staff and funding for appropriate monitoring of categorically excluded activities. Some comments express concern that by categorically excluding more activities, there will be insufficient data to analyze the impacts of these activities. Other comments ask the BLM to assure the public that impacts from the implementation of categorically excluded activities be monitored.

Response:
An activity that is subject to a CX by definition is an activity that is within a category of actions that have previously been found not to have significant impacts, either individually or cumulatively. That being said, regardless of whether a proposed activity is reviewed under an EA, EIS or CX, the BLM monitors the effects of these activities to the extent its budget allows. The BLM's program management and associated staffing decisions regarding the monitoring of effects are subject to the appropriations process. (See, Anti-Deficiency Act, 31 U.S.C. 1341).

Comment:
Some comments state that the BLM should increase public notification of CX decisions made.

Response:
The CEQ regulations (40 CFR 1506.6) require public notice about the completion of NEPA analysis under certain circumstances. These regulations do not require public notification of the use of a CX. Some BLM offices currently support Web sites that list the decisions made in their management area, including the NEPA documents associated with those decisions (including applying a CX). For example, see the Utah State Office Environmental Notification Bulletin Board at
https://www.ut.blm.gov/enbb/index.php.

Comment:
Some comments state that the BLM should include the CXs from the Energy Policy Act of 2005 in the 516 DM 11 revisions.

Response:
The CXs included in the Energy Policy Act of 2005 are statutory CXs; therefore, do not need to be listed in 516 DM 11.

Comment:
Some comments ask the BLM to describe how cumulative impacts of the proposed CX activities would be evaluated. Some comments suggest that 516 DM 11 be revised to ensure that the cumulative impacts of projects covered by a CX are analyzed.

Response:
An action can only be categorically excluded from further NEPA analysis when it has been shown that the action fits within a category of actions that has already been determined not to have a significant environmental effect on the human environment, individually or cumulatively (see 40 CFR 1508.4). For all of the categories of actions for which the CXs were proposed, the analysis of the NEPA documents prepared for such actions, as well as subsequent evaluations of the effects of the actions, showed that the actions did not cause significant effects. Further, when considering whether to use a CX, one of the “extraordinary circumstances” that must be evaluated is whether the proposed action may “have a direct relationship to other actions with individually insignificant but cumulatively significant environmental effects” (516 DM 2.3(A)3 and appendix 2 (2.6)). If it might, then an EA or an EIS must be completed for the action, and a CX cannot be applied.

Comment:
Some comments ask the BLM to evaluate the cumulative impacts of the proposed CXs, the revisions to the Northwest Forest Plan's (NWFP) Survey and Management Program and Aquatic Conservation Strategy; the National Forest Management Act Planning regulations; and the National Forest Management Act notices, comment, and appeal regulations.

Response:
The new or modified CXs are specific to a revision of the procedures described in the 516 DM 11 for implementing the NEPA within the BLM. The determination that establishing CXs does not require NEPA analysis and documentation has been upheld in
Heartwood, Inc.
v.
U.S. Forest Service,
73 F. Supp. 2d 962, 972-73 (S.D. Ill. 1999),
aff'd
230 F.3d 947, 954-55 (7th Cir. 2000) (holding creation of CXs to be an establishment of agency procedure for which CEQ regulations do not require preparation of an EA or EIS). The CXs proposed in January 2006 and finalized here are part of the BLM's effort to update internal NEPA implementing procedures. A cumulative effects analysis of the establishment of these CXs, in relation to the NWFP, the National Forest Management Act Planning regulations, and the National Forest Management Act is not appropriate in this context. However, in developing the Forestry CXs, the BLM reviewed past actions and associated NEPA documents. These NEPA documents included analyses of cumulative effects, which in relevant instances, included actions taken by the Forest Service. The BLM's review of these past actions, the NEPA analyses specific to the actions, and anticipated effects, as well as the actions' actual effects, allowed the BLM to determine that the actions had no individual or cumulative significant impacts, and that development of a CX covering such actions was warranted. The final determination whether a specific proposed action will have a significant cumulative effect or not, is completed at the time the specific proposal is reviewed by considering the applicability of any extraordinary circumstances.

Comment:
Some comments state that the BLM needs to ensure that implementation of all the CXs will not cumulatively result in jeopardy to listed endangered species.

Response:
The Responsible Official must ensure that no BLM action will jeopardize a listed species under the ESA. Before a CX can be used, the Responsible Official must determine that no “extraordinary circumstances” apply. If “extraordinary circumstances” (516 DM 2.3(A)3 and appendix 2 (2.8)), which addresses endangered species, applies, a CX may not be used.

Responses to Specific Comments on Section 11.9—Categorical Exclusions

B. Oil, Gas, and Geothermal Energy (Sub-parts B(6)-(8))

B(6)—Comments.

Comment:
Some comments state that the proposed CX 11.9B(6) should not be implemented because geophysical operations were excluded when Congress authorized additional energy development-related CXs under the Energy Policy Act of 2005.

Response:
Section 390 of the Energy Policy Act of 2005 does not provide for a CX for the geophysical activities described in the proposed CXs. The Act does not preclude the appropriate exercise of authority to administratively establish CXs in accordance with the NEPA, the CEQ regulations, and the DOI and the BLM NEPA procedures.

Comment:
Some comments state that the proposed CX 11.9B(6) is a policy change aimed specifically at benefiting the oil and gas industry and that as such, is a “scheme” to make energy exploration companies more money.

Response:
No change to the CX was requested by these comments, no changes were made in response. The BLM proposed CX 11.9B(6) because CEQ implementing regulations (40 CFR 1509.4 and 1507.3) allow federal agencies to identify categories of actions, which normally do not require either an EA or an EIS. The development of this CX was based on generally accepted analytical procedures, which included completion of a census of available data on geophysical exploration. See
http://www.blm.gov/planning/news.html.
One benefit to all stakeholders of adopting new CXs for activities, which have been shown to have no individually or cumulatively significant effects, is additional federal resources can be redirected to analyzing and mitigating activities likely to have significant adverse environmental consequences.

Comment:
Some comments suggest that the proposed CX 11.9B(6) would promote the segmentation of a major project into several categorically excluded small projects, which would prevent appropriate consideration of cumulative impacts.

Response:
The BLM disagrees. Geophysical exploration activities are independent actions and not connected actions as defined in NEPA (40 CFR 1508.25 (a)(1)). Geophysical exploration activities are data collection activities used to gather information that may be used to inform future decision-making regarding oil, gas or geothermal development proposals by providing information on the location of energy resources. It is not a forgone conclusion that the energy resources identified through this data collection will actually be developed. Before a CX can be used, a proposed action must be reviewed to determine whether or not any of the “extraordinary circumstance” (516 DM 2.3(A)3 and appendix 2), applies. In particular, “extraordinary circumstance” 2.6 addresses the potential for significant cumulative impacts; if it does apply, the CX cannot be used.

Comment:
Some comments state that federal court and administrative decisions have either remanded the BLM decisions to approve geophysical exploration or affirmed agency decisions, only after the BLM proposed additional mitigation measures.

Response:
The data analyzed and reviewed by the BLM validate the assertion that the impacts from geophysical operations would not be significant. Specific to the comment related to litigation, the data indicate that out of 244 projects reviewed, the NEPA analyses of eight geophysical exploration projects, supported by EAs, were challenged through administrative appeals or litigation. Only two of the eight were remanded to the BLM. In one

situation, the NEPA document was found inadequate where the BLM failed to consider reasonable alternatives (such as limiting use to existing roads) that had been suggested, and in the other, the BLM failed to provide a comment period that had been promised and that the court found to be appropriate under the circumstances of that case. Neither was due to a finding of significant impacts associated with geophysical exploration. Geophysical exploration (the impacts from those activities and how the BLM field personnel address the approval process) has changed over the last several years. There have been lessons learned from the results of this litigation, from personal observation by field staff associated with the projects, field data collection through monitoring, and systematic evaluation of information received from the proponents. Accumulation of professional knowledge resulted in design features that previously were not part of proponent geophysical proposals, yet are now considered routine. Proponents either with or without the BLM consultation now incorporate best management practices into proposals. Project design features are site specific to the local concerns and resource values. They represent a commonality of best management practices that are integral to the project being authorized. Field personnel that routinely permit these actions know the needs based on accumulated professional knowledge of resource concerns in the area at issue, and either assure these aspects appear in the proponent's proposal or include them as conditions of approval in the authorization. “Conditions of approval” or “terms and conditions” are terms of art that represent the practices and standards that are routinely applied to geophysical projects specific for that particular office. Their application does not require a new analysis each time a project is submitted, but results in a list of measures that the proponent must implement based on local conditions. In all cases, proposed actions or activities must be, at a minimum, consistent with the DOI and the BLM regulations, manuals, handbooks, policies, and applicable LUPs regarding design features, best management practices, terms and conditions, conditions of approval, and stipulations. Also associated with this improved professional knowledge base, of the BLM field experience, has been the steady improvement of geophysical techniques and best management practices by the geophysical industry. Low impact techniques have allowed for substantial reductions in the amount of actual surface disturbance and associated resource impacts. Physical impacts such as road construction are rare and the impacts to soil or vegetation resources are minimal or short-term.

Comment:
Some comments state that geophysical exploration activities cause “disturbance” and related erosion impacts, such as landslides and slumps. Therefore, they recommend that the CX not be adopted.

Response:
Available data supports adoption of the CX. The CX 11.9B(6) was established after careful review of 244 geophysical exploration projects previously approved by the BLM. The data examined for these projects included project-specific information on the location, the type of NEPA review performed, predicted environmental impacts of proposed actions, and actual environmental impacts after the action was completed. No projects were shown to have significant impacts, individually or cumulatively. According to the review of the NEPA analysis completed for these 244 geophysical exploration projects, including review of the effects of the completed projects themselves, predicted significant impacts, including erosion-related impacts as a result of geophysical exploration, did not occur. In addition, with respect to the resources mentioned in the comments, the BLM applies specific “Terms and Conditions”—as indicated in number seven of the BLM Form 3150-4 and requires suspension of operations when unnecessary disturbance to soils may occur. This term and condition is a part of all geophysical Notices of Intent (see the BLM Form 3150-4). In addition, if the required “extraordinary circumstances” review conducted for any proposed action indicated such impacts as “landslides” and “slumps” might be significant, the CX would not be used.

Comment:
Some comments state that the use of the geophysical exploration CX would have negative impacts on non-commercial uses, such as scientific, educational, recreational, aesthetic, and spiritual purposes.

Response:
See response above. The BLM reviewed 244 geophysical exploration projects. None of the projects reviewed during the establishment of this CX resulted in a significant impact, either individually or cumulatively. In addition, the BLM will review all future projects against the DOI's “extraordinary circumstances.” If the review indicates that the action may have a direct relationship to other actions with individually insignificant, but cumulatively significant environmental effects (i.e., to non-commercial uses, such as scientific, educational, recreational, aesthetic and spiritual purposes), the CX cannot be used.

Comment:
Some comments state that geophysical (e.g. seismic) exploration activities have potentially significant impacts to environmental and cultural resources.

Response:
None of the 244 geophysical exploration projects reviewed during the establishment of this CX resulted in a significant impact, either individually or cumulatively. Further, the BLM believes the established permitting process ensures that if there are potential individually or cumulatively significant environmental effects, an EA or EIS, as appropriate, would be done. Included in the permitting process is the requirement to review the DOI list of “extraordinary circumstances” (516 DM 2.3A(3) & appendix 2) for every proposed action. “Cultural resources” are specifically provided for in this list. If the required “extraordinary circumstances” review indicated that significant impacts to environmental or cultural resources might occur, the CX would not be used.

Further, the use of the CX during the NEPA review process does not eliminate the need to comply with Section 106 of the National Historical Preservation Act (Pub. L. 89-665) or the Archeological Resources Protection Act (Pub. L. 96-95), or any other applicable resource protection law.

Comment:
Some comments express concern that geophysical exploration activities can damage roadless areas by creating noticeable vehicle routes, which can attract traffic by “unauthorized” off-highway vehicle drivers.

Response:
Historically, older geophysical exploration operations required the use of some type of road construction. These operations left travelways that would take time to completely reclaim. In the interim, these routes would remain visible and may have encouraged off-highway travel by some members of the public. Best management practices over time have reduced the visibility of noticeable vehicle tracks through project design features so that non-authorized use is discouraged. Further, the proposed CX was specifically limited to geophysical exploration projects that do not involve road construction. The BLM reviewed 244 geophysical exploration projects during the establishment of this CX. None of the projects resulted in a significant impact, either individually or cumulatively. As an additional limitation, the BLM has added a

requirement to this CX that when road construction is involved, the CX would not be used and additional NEPA review would be completed. Further, the proposed geophysical exploration activities can only proceed using this CX where none of the “extraordinary circumstances” apply (516 DM 2.3A(3) & appendix 2).

Comment:
Some comments state that the proposed CX 11.9B(6) would “wrongly exclude” the covered actions from compliance with federal laws protecting wildlife, such as the ESA.

Response:
The use of a CX does not eliminate the need to comply with Section 7 of the ESA or other federal laws. None of the 244 projects reviewed during the establishment of this CX resulted in a significant impact, either individually or cumulatively. Further, if the proposed geophysical exploration activity has the potential to significantly impact listed threatened or endangered species, or their critical habitat, “extraordinary circumstance” 2.8 (516 DM 2 appendix 2.8) applies, and an EA or EIS, as appropriate, is required.

Comment:
Some comments state that weed invasion follows the network of seismic activities across the landscape, which can result in irreversible weed invasions that radically alter fire cycles and endanger wildlife habitat.

Response:
None of the 244 projects reviewed during the establishment of this CX resulted in a significant impact, either individually or cumulatively. In addition, specific to the resource commented on, if the proposed geophysical exploration action may contribute to the introduction, continued existence, or spread of noxious weeds, “extraordinary circumstance” 2.12 (516 DM 2, appendix 2.12) would eliminate the decision-maker's ability to use CX 11.9B(6). An EA or EIS, as appropriate, would be required.

Comment:
Some comments ask the BLM to revise the proposed geophysical exploration CX 11.9B(6) to prohibit seismic activity during migratory bird breeding season.

Response:
None of the 244 projects reviewed during the establishment of this CX resulted in a significant impact, either individually or cumulatively. In addition, the DOI and the BLM use a NEPA review process that ensures that if any of the “extraordinary circumstances,” as defined in 516 DM 2.3A(3) and appendix 2, apply, a CX cannot be used. “Extraordinary circumstance” 2.2 (516 DM 2 appendix 2) affords protection specifically for migratory birds. Therefore, if a project design feature intended to provide protection of migratory bird breeding activities in an area occupied by these birds were to be refused by the applicant, or if its efficacy has not been sufficiently assured, an EA or EIS, as appropriate, would be required. Proposed actions or activities must be, at a minimum, (as is stated in the preamble to this section) consistent with Laws (such as the Migratory Bird Treaty Act (Pub. L. 86-732), DOI and BLM regulations, manuals, handbooks, policies, and applicable LUPs regarding design features, best management practices, terms and conditions, conditions of approval, and stipulations.

Comment:
Some comments ask the BLM to revise the proposed geophysical exploration CX 11.9B(6) to ensure that operations do not result in cumulative impacts.

Response:
An activity that is subject to a CX by definition is an activity that has been found not to have significant impacts, individually or cumulatively. Geophysical exploration activities that would be authorized under the CX have been shown not to have significant impacts, either individually or cumulatively based upon the BLM administrative review of 244 geophysical exploration projects. The analysis report is available at the BLM Web site at
http://www.blm.gov/planning/news.html.
None of the NEPA documentation for the 244 geophysical exploration projects analyzed in the study during the establishment of the CX indicates the occurrence of significant impacts. The BLM also employs a NEPA review process that ensures, if any of the “extraordinary circumstances,” as defined in 516 DM 2.3A(3) and appendix 2, apply, a CX cannot be used. One of these “extraordinary circumstances” that precludes the use of a CX addresses cumulative impacts.

Comment:
Some comments state that establishment of terms and conditions for specific proposed actions depends on the soil, weather, ground cover, and type of machinery to be used in each case; therefore, the proposed CX would not adequately account for these site-specific issues.

Response:
The BLM agrees that the design of each proposed action depends on soil, weather, ground cover, and type of machinery to be used; however, as proposed actions are designed and then reviewed against the CX list, such actions or activities must be, at a minimum, consistent with the DOI and the BLM regulations, manuals, handbooks, policies, and applicable LUPs regarding design features, best management practices, terms and conditions, conditions of approval, and stipulations. The geophysical exploration techniques, impacts resulting from the techniques, and the BLM's field personnel knowledge and experience in reducing impacts from this type of activity have improved over time. The lessons learned based on personal observation by field staff associated with the projects, field data collection through monitoring, and systematic evaluation of information received from the proponents has resulted in accumulation of professional knowledge that has led to development of design features that were not previously part of proponent geophysical proposals. Use of design features to minimize impacts to soil and ground cover are now routinely included based on local conditions. The BLM alerts proponents regarding resource values of concern in a given area, and proponents incorporate best management practices into the proposal so that impacts are now minimal. In addition, the BLM's review of 244 projects determined that there is no significant impact from this activity. Further, each proposed action is reviewed against the DOI's “extraordinary circumstances” as described in 516 DM 2.3A(3) and appendix 2. Any proposed geophysical exploration activity that does not satisfy these requirements must be analyzed through the EA or EIS process, as appropriate.

B(7) & (8)—Comments.

Comment:
Several comments were received related to proposed CXs 11.9 B(7) for permitting infill wells within the [reasonable foreseeable development] RFD for an established geothermal field, and B(8) for the issuance of site licenses to operate geothermal facilities whose construction and operation were included in a utilization plan NEPA document. Comments addressed such concerns as the potential for geothermal activity to affect water-confining soil layers and potentially result in the loss of wetted playa areas; impacts on special-status species and endangered species and their habitats that may result from use of the proposed CXs; and currency of LUPs with respect to the ecological status of lands and waters under discussion. Some commenters sought to expand the use of these CXs beyond the State of Nevada; they felt that Nevada should not be granted special consideration over other states and asserted that projects in other states could meet the same criteria as used in Nevada. Commenters also asked why there was a need for further NEPA analysis, rather than a DNA, where the NEPA document for the field

development or the utilization plan included the activities proposed for Geothermal CX 11.9 B(7). In addition, comments expressed interest in clarification of what actions CX 11.9 B(8) was intended to cover, and what actions would be covered by methods of complying with the NEPA.

Response:
Upon review of the BLM's NEPA compliance procedures, in general, and in consultation with CEQ, the BLM has decided not to finalize proposed CXs 11.9B(7) and 11.9B(8). As explained above in the description of modifications made from the January 2006 proposal, the BLM has determined first that, regarding B(7) (infill wells), a DNA combined with more focused development-stage NEPA documents should normally suffice for NEPA compliance, as some commenters suggested, and second, that a CX (or an EA) for B(8) is redundant and thus unnecessary because no new environmental impacts result from the administrative/ministerial action of issuing a site license where operation of the plant was already covered in the NEPA analysis and documentation prepared for the utilization plan. Both of these solutions are applicable nationwide. To the extent that comments express concern regarding particular resources, the method an agency uses to fulfill its NEPA obligations is distinct from the agency's continuing obligation to comply with other environmental protection statutes such as the Clean Water Act, 33 U.S.C. 1251
et seq.
, the Endangered Species Act, 16 U.S.C. 1531
et seq.
(special status species are addressed as part of the BLM's conservation plans under Section 2 of the Endangered Species Act), and the Federal Land Policy and Management Act, 43 U.S.C. 1701
et seq.
(land use planning). The BLM LUPs are routinely evaluated to determine whether the LUP decisions and NEPA analysis are still valid. All actions, including those categories of actions considered here, must be consistent with an approved LUP. Regardless of the age of the LUP(s) affected, each proposed action would also be evaluated on its own merits, and updated information provided as necessary in the more site- and/or more project-specific NEPA analysis. In most cases, for instance, the initial development plans for the types of actions contemplated here would have already been analyzed in a project-level NEPA document in addition to the LUP.

Responses to Specific Comments on Section 11.9—Categorical Exclusions

C. Forestry (Sub-Parts C(6)-(9))

Broad Concerns That Apply to the New Forestry CXs

Comment:
Some comments state that the proposed Forestry CX parameters are inadequate to protect elements of the environment, specifically predatory bird nesting sites, woodpecker habitat, soils compaction, weed dispersal, small mammal burrows, and surface water quality.

Response:
The BLM analysis available at
http://www.blm.gov/planning/news.html
demonstrates this is not the case. Three of the four proposed Forestry CXs, 11.9C(7)-(9), are based on three U.S. Department of Agriculture Forest Service (FS) CXs, their supporting data, and an analysis by the BLM demonstrating that such proposed actions and their environmental effects are comparable when the action is taken by the BLM. The FS considered the potential for significant effects during the NEPA review process (68 FR 44598-44608, July 29, 2003). Based on assessments of local wildlife habitat conditions after the actions were taken, no significant cumulative effects were observed by the FS. A few of the projects reviewed resulted in minor soil disturbance and compaction, and a few others showed that small numbers of noxious weeds or invasive plants entered the area where the trees had been removed. The FS subject-matter specialists and Responsible Officials found that these impacts were within forest plan standards and were not significant in the NEPA context (40 CFR 1508.27). Based upon the comparison between the FS and the BLM lands, policies, and business practices as outlined in the BLM analysis, the BLM actions are not expected to result in significant introductions, continued existence, or spread of noxious weeds or non-native invasive species. In addition, when applying the CXs to the BLM lands, the BLM only considers use of the CXs when there are no “extraordinary circumstances” (516 DM 2.3A(3) and appendix 2.12), which will cause individually or cumulatively significant impacts on the human environment.

The fourth proposed CX 11.9C(6), which addresses sample tree felling (STF) to gather net timber volume data, is based on a 100 percent census of STF surveys conducted in five BLM management districts in western Oregon from October 1, 2001, through September 30, 2005. These five Districts (Coos Bay, Eugene, Medford, Roseburg, and Salem) wrote EAs for the timber sales that were associated with the 59 STFs performed. The EAs addressed a range of environmental impacts for the five districts including the types mentioned in the comments. The STF business practices and skills of those conducting the action on lands similar to the original five Districts are the same. The BLM believes there are sufficient data to show that no individually or cumulatively significant environmental effects were predicted or occurred as a result of the 59 STF surveys, and therefore the BLM is confident that no individually or cumulatively significant environmental effects will occur due to future STF actions within the Districts identified. The Lakeview District Klamath Field Office was inadvertently left out of the area of coverage of the proposed CX, but has been added to the revised CX proposal. Actions in the Klamath Field Office are the same as those taken in the five Districts identified above and result in the same non-significant environmental effects. In addition, proposed actions in the Klamath Field Office will also be subject to the “extraordinary circumstances” test, and are expected to have no significant environmental effects.

Comment:
Some comments state that the BLM does not disclose that “it is in the process of implementing several internal and administrative regulatory changes that, in addition to the proposed small timber harvest [CXs (11.9C(7)-(9)], will have a cumulative effect on the environment that has not been analyzed as required by law.” The “internal and administrative regulatory changes” the comments refer to are the NWFP, the National Forest Management Act Planning regulations and the National Forest Management Act.

Response:
The BLM disagrees with the comments, and believes that it is following CEQ guidelines by notifying the public on proposed changes to the 516 DM 11 (See 71 FR 4159-4167, January 25, 2006; see also
http://www.blm.gov/planning/news.html
). The new forestry CXs are specific to the DOI's 516 DM 11 for implementing NEPA within the BLM. A cumulative impacts evaluation in relation to the referenced “changes” is not appropriate, since there is no effect on the environment by this administrative change. The proposed CXs are part of the BLM's effort to update internal NEPA implementing procedures. The establishment of CXs, as internal agency procedures for implementing the NEPA, has been held not to require the preparation of an EA or an EIS, under the CEQ regulations, see

Heartwood,

Inc.

v.
U.S. Forest Service,
73 F. Supp. 2d 962, 972-73 (S.D. Ill. 1999), aff'd 230 F.3d 947, 954-55 (7th Cir. 2000). The final determination on whether a specific proposed forestry-related action will have a significant cumulative effect, is completed at the time the proposal is reviewed and evaluated using the “extraordinary circumstances” test, or if necessary, through an EA or EIS.

Comment:
Some comments state that the forestry activities proposed for CX process review are “beyond the intended scope and purpose of the categorical exclusion clause” in NEPA; and by “exempting such activities, the BLM is essentially advocating that actions with significant environmental impacts escape close scrutiny under the requirements of NEPA.”

Response:
The BLM disagrees that using a categorical exclusion allows actions with significant environmental impacts to escape scrutiny. To avoid repetitive documentation of known non-significant effects, the CEQ regulations (40 CFR 1500.4(p), 1507.3 and 1508.4; also see CEQ's testimony before the House Committee on Resources Task Force on Updating the NEPA Lessons Learned Oversight Hearing on November 17, 2005), provide for defining “categories of activities” whose effects do not normally require review in an EA or an EIS. The process of defining these categories is an integral part of the NEPA regulatory framework. In this case, the BLM collected data on the NEPA analyses used for sample tree felling (CX 11.9C(6)). The BLM analyzed the NEPA review activities documented by the FS related to live tree harvests, salvage tree harvesting, and sanitation harvesting projects. The BLM and the FS data and analysis support a determination that (1) the proposed Forestry CX activities do not have significant effect(s) on the human environment, and (2) these CXs meet the intent of the CEQ regulations that govern the establishment of CXs. The BLM is establishing these categories of Forestry activities because the appropriate implementation of the NEPA requires concentrating agency analysis efforts on major federal actions and not expending scarce resources analyzing agency actions where experience has demonstrated the insignificance of predictable effects.

Comment:
Some comments state that the new live tree harvest, salvage tree harvesting, and sanitation harvest CXs 11.9C(7)-(9) will, when combined with new opportunities for energy development, affect available open space and could be “devastating to the environment,” specifically air and water quality, wildlife, and tourism.

Response:
The BLM disagrees that the use of CXs 11.9C(7)-(9) will affect available open space, or be “devastating” to the environment and tourism. As discussed above, the BLM analyzed the FS information and determined the BLM forestry activities included in the CXs and their effects are comparable. The FS reviewed activities related to live tree harvests, salvage tree harvesting, and sanitation harvesting projects, and determined that the proposed CXs do not have significant effects on the human environment, including air and water quality and wildlife. Further, if there are “extraordinary circumstances” listed in 516 DM 2, appendix 2 that apply, the Responsible Official cannot use the new forestry CXs. The use of the CX does not eliminate the need to comply with other applicable resource protection laws. The BLM will determine whether a specific proposed Forestry-related action will have a significant cumulative effect on the environment, including wildlife and tourism values, at the time the proposal is reviewed using the extraordinary circumstances test. If the proposal does not pass the extraordinary circumstances review, an EA or an EIS will be completed.

Comment:
Some comments state that tree harvesting is “never completely uncontroversial, and it often imposes significant impacts on the terrestrial and aquatic ecosystems of the area.” The comments further state that a CX that enables tree harvesting for any reason provides insufficient opportunity for public review.

Response:
Based on the BLM's reviews of the FS tree harvesting projects, the BLM determined that similar projects would have similar effects on the BLM land, and would have no significant effects on the terrestrial and aquatic ecosystems in the area of the projects. In the development of the three harvesting and salvaging CXs, the FS reviewed the effects of 154 tree harvesting projects across the country, with actions similar to those allowed in the three categories (See
http://www.fs.fed.us/emc/nepa/library/20030108_fr_notice.pdf
). Prior to implementation, none of the projects reviewed predicted significant effects on the human environment. After implementation, on-site reviews of environmental effects of these projects were conducted by interdisciplinary teams of resource specialists. The reviews by the BLM concluded that none of the projects had a significant effect on the human environment. In addition, the BLM applies the review of extraordinary circumstances to projects, including whether an action has highly controversial environmental effects or involves unresolved conflicts concerning alternative uses of available resources. If one or more of the extraordinary circumstances listed in 516 DM 2, appendix 2.3 apply, the Responsible Official cannot use the new forestry CXs. Applying a CX to a proposed action does not preclude public involvement with the proposal. Interested publics will be involved as appropriate throughout the decision-making process. The type and level of public involvement should be commensurate with the decision at hand. Forest management decisions, including those where a CX is applied, are protestable under 43 CFR 5003.3.

Comment:
Some comments state that using the FS data to justify the proposed BLM live tree harvest, salvage tree harvesting, and sanitation harvesting activities CXs 11.9C(7)-(9) is inappropriate because the FS lands and projects in “different regions may not be comparable for a variety of reasons.”

Response:
The data is applicable to the BLM lands because forestry related projects and their predictable environmental impacts are substantially the same on the BLM and the FS administered public lands as demonstrated by the comparability analysis conducted by the BLM (
http://www.blm.gov/planning/handouts/CX_Report-Forestry-FS_CXs.pdf
). Laws governing forest management for the BLM and the FS are very similar. While the agencies have separate enabling legislation, both require that forest lands be managed according to sustained-yield and multiple-use principles. As part of land management, the agencies are further mandated to meet the requirements of environmental laws including the Clean Water Act, Clean Air Act, Endangered Species Act, and the National Historic Preservation Act when making decisions. Finally, the proposed actions designed and reviewed for application of a CX must be, at a minimum, consistent with DOI and BLM regulations, manuals, handbooks, policies, and applicable LUPs regarding design features, best management practices, terms and conditions, conditions of approval, and stipulations.

Comment:
Some comments state that standing dead trees (snags) and dying trees “play an important ecosystem role” that is “highly valued” and “under represented.” Some comments state that the BLM and the FS policies for conserving snags do not reflect an adequate appreciation of the current state of knowledge about their ecological value. Still other comments want the BLM to develop “snag

retention guidelines for each physiographic province * * *” They state that until this is done, the BLM should not allow any snag larger than 20 inches diameter at breast height (dbh) to be removed based on a report prepared for the DOI Final Draft Recovery Plan for the Northern Spotted Owl issued in1992.

Response:
The BLM agrees that standing dead and down woody material is an important component of a healthy forest ecosystem. The BLM's LUPs in the Pacific Northwest are based on the
Record of Decision for Amendments to Forest Service and Bureau of Land Management Planning Documents Within the Range of the Northern Spotted Owl
(ROD) and
Standards and Guidelines for Management of Habitat for Late-Successional and Old-Growth Forest Related Species Within the Range of the Northern Spotted Owl
(S&G), April 1994. The Final Draft Recovery Plan for the Northern Spotted Owl (1992), referenced by the commenters, was considered when writing the Final Supplemental EIS and Record of Decision (ROD) (page 17). The S&G addressed physiographic provinces (Introduction page A-3) and both the retention and removal of snags (S&G, pages C-14, 15). The ROD and S&G do not set a diameter limit on snag retention. Since the BLM LUPs are based on the ROD and S&G, the BLM rejects setting an arbitrary limit of 20 inches dbh on snag retention.

Comment:
Some comments express preference for a 100 or 250-acre upper size limit on the new forestry CXs 11.9C(7)-(9) while others ask that the upper limit be reduced to 10 acres for all potentially eligible harvest activities. Some comments state that establishing “a higher [acres] limit for salvage and insect/disease timber sales makes absolutely no sense” and that “allowing commercial projects to be included heightens [environmental] risk * * *.”

Response:
The BLM is finalizing the proposed CX language as written. The BLM analyzed the FS data, and determined that the FS size acres limits, which are based on their data, are appropriate for the CXs. Having the BLM and the FS using the same size limits for similar treatments will help maintain consistency between the agencies. The BLM would need to gather new data to support using a CX for larger treatment areas. The BLM's CXs 11.9C(7)-(9) are similar to three FS forestry CXs formally adopted in 2003 (68 FR 44598-44608, July 29, 2003). The FS instituted their forestry CXs (Forest Service Handbook (FSH) 1909.15, Ch. 31.2(12-14)) based on 154 completed FS projects that had sufficient NEPA analysis documentation. The FS data show that no individually or cumulatively significant effects resulted when the activities described in the three FS forestry CXs were used. Since no significant effects occurred at the current size limits, there is no logical reason to arbitrarily reduce the size limits. For additional information on the FS data collection and analysis process and the method used to determine reasonable project area limits, refer to 68 FR 44598-44608, July 29, 2003, and supporting documents and the BLM analysis at
http://www.blm.gov/planning/handouts/CX_Report-Forestry-FS_CXs.pdf
. The BLM also rejects the notion that allowing commercial use of the harvest material increases environmental risks. The effects on the ground of a project would be the same regardless of whether or not someone is likely to profit from the venture.

Comment:
CXs 11.9C(7)-(9) provide for “temporary road construction.” Some comments ask the BLM to define “temporary road” and other comments ask the BLM to clearly define what constitutes temporary road construction to “minimize impacts.” Some comments state that limiting temporary road construction to “no more than 0.5 mile[s]” is too constraining, while others state that any road building causes significant environmental impacts.

Response:
The BLM agrees that it needs a definition for temporary roads. For use of the specific forestry CXs 11.9C(7)-(9) the BLM has rewritten the CXs to define temporary roads based on the definitions in the FS regulations, which will meet the BLM needs and ensure compatibility between agencies for these specific CXs. The BLM rejects the notion that any road construction causes significant environmental impacts. The BLM reviewed the FS data where 35 of the 154 timber sales reviewed by the FS required temporary road construction. The FS found no significant effects in reviewing these projects. The average length of temporary road construction for the 35 sales was 0.5 mile. Based upon its analysis, the BLM determined that temporary road construction when the CX criteria are met will be non-significant. Therefore, it is appropriate to use the 0.5-mile maximum length limit for temporary road construction for these CXs, to maintain consistency between agencies.

Comment:
Some comments state that the BLM should conduct an in-depth cost-benefit analysis of the proposed forestry CXs: 11.9C(6)-(9).

Response:
A forestry cost-benefit analysis of each CX is not necessary because the BLM determined that the cumulative economic impact of the proposed changes to 516 DM 11, including adoption of CXs 11.9C(7)-(9) would not have an annual effect of $100 million or more on the economy or adversely affect productivity, competition, jobs, the environment, public health or safety, or state, tribal or local governments. This determination was reported in the 71 FR 4161, January 25, 2006. The expected economic result from instituting the new forestry CXs in 516 DM 11.9C is efficient reallocation of resources needed to complete NEPA review from actions, which do not have a significant effect to those, which may have a significant effect.

Comment:
Some comments question the amount of money the BLM charges for permits and timber.

Response:
This question is not relevant to the proposed revisions in 516 DM 11 regarding CXs for permits. Market values are a local issue, and values for resources are set by the BLM Districts based on local economies.

Comment:
Some comments noted that three of the “proposed new CXs 11.9(7)-(9) mirror new CXs developed by the Forest Service.” They “by reference” reiterate their concerns about these FS-based Forestry activities published in the 68 FR 1026, January 8, 2003, in their comments on the BLM proposal to adopt CXs 11.9(7)-(9).

Response:
The concerns expressed in the comment are addressed in this notice of final action where relevant, and in the case of other concerns, the relevant FS responses to comments received and published in 68 FR 44598-44608, July 29, 2003, are by reference included in this notice of final action. The FS
Federal Register
notice may be obtained electronically at
http://www.fs.fed.us/emc/lth/notice.pdf.

C(6)—Comments.

Comment:
Some comments ask the BLM to provide a “sufficient explanation” for why the proposed Sample Tree Felling (STF) CX 11.9C(6) is limited to certain areas within Oregon. Some comments suggest that the STF CX 11.9C(6) be expanded to all of Oregon, other Western States, or BLM-wide.

Response:
While the STF survey method has been used elsewhere, the BLM reviewed NEPA analysis specifically to consider the environmental effects of the STF timber volume survey method within the western Oregon lands managed under the Oregon and California Lands Act (Pub. L. 75-405, August 28, 1937, as

amended by Pub. L. 426, June 24, 1954). The BLM's Lakeview District, Klamath Falls Resource Area has been added to the BLM management units that are eligible to use CX 11.9C(6), since it is part of the Oregon and California Lands Act area where the NEPA analysis and implementation and effects data are available. Omission of the Klamath Falls Resource Area in CX 11.9C(6) was unintentional. Therefore, Lakeview District, Klamath Falls Resource Area is added to the CX as finalized for these areas. The Prineville District is not located within the Oregon and California Lands Act area reviewed, and has not been included in the CX.

Comment:
Some comments state that the STF CX 11.9C(6) violates the agreement that the BLM made in a federal court (
Umpqua Watersheds, et al.
, v.
BLM,
No. 00-1750-BR, U.S.D.C. Or., Stipulation for Dismissal and Order, 13 January 2003). These comments point out that the new CX will eliminate a court settlement requiring the BLM to restrict STF to trees under 20″ dbh.

Response:
The CX 11.9C(6) was proposed to address the terms of the agreement which states that: “Unless or until there is legislative, regulatory, or other authority adopting a NEPA procedure for sample tree felling or exempting such actions from NEPA procedures, sample tree felling for timber sale cruising will not occur prior to the BLM issuing any final decision document on any BLM District in western Oregon * * * of any trees over 80 years old * * * of any Douglas-fir trees 20.0 inches diameter at breast height (dbh) or greater.” Thus, rather than constituting a violation of this agreement, this change in the NEPA procedures for STF was specifically provided for and anticipated in the stipulated order resulting from the settlement agreement. CEQ regulations at 40 CFR 1507.3 and 1508.4 give the BLM the authority for adopting a NEPA procedure to categorically exclude proposed actions, and based on the analysis referred to in previous responses and the analysis available at
http://www.blm.gov/planning/handouts/CX_Report-Sample_Tree_Falling.pdf,
the BLM determined that a CX was appropriate for STF. CEQ's testimony before the House Committee on Resources Task Force on Updating the NEPA Lessons Learned Oversight Hearing on November 17, 2005, reemphasized the responsibility of federal agencies to establish appropriate new CXs to promote efficient NEPA compliance.

Comment:
Some comments state that the proposed STF activities in CX 11.9C(6) could have significant impacts on the environment. Other comments state that the STF CX 11.9C(6) analysis report (
http://www.doi.gov/oepc/cx_analysis.html
or
http://www.blm.gov/planning/news.html
) is flawed because none of the NEPA processing documents specifically identified STF as the proposed action category that could be tied to a finding of no individually or cumulatively significant impacts.

Response:
Based on the comment received, the BLM revisited the 2001 through 2005 timber sale EA data used for the proposed STF CX, which came from five BLM Districts in western Oregon (Coos Bay, Eugene, Medford, Roseburg, and Salem) that have historically used STF extensively. In the timber sale EAs analyzed, four of the five Districts' data (Coos Bay, Eugene, Medford, and Salem) did not specifically address the impacts of STF. The Roseburg District EAs did specifically address cumulative effects of STF as the proposed action category in their 14 project EAs between October 1, 2001, and September 30, 2005. Based on the comments received, the BLM conducted a further review of six District-wide programmatic STF EAs (Coos Bay, Eugene, Medford, Roseburg, Salem, and Lakeview District—Klamath Falls Resource Area) completed prior to the 2003 Court Stipulation for Dismissal and Order (
Umpqua Watersheds, et al.
, v.
BLM,
No. 00-1750-BR, U.S.D.C. Or., Stipulation for Dismissal and Order, 13 January 2003). The six District-wide programmatic EAs were written specifically to analyze STF in the six western Oregon districts. Each programmatic EA analyzed STF effects, and none were found to be significant. Analysis from both data sets support the conclusion that performing STF activities will cause no individually or cumulatively significant impacts on the human environment when the STF activities are as described in CX 11.9C(6) and when no “extraordinary circumstances” (516 DM 2.3A(3) and appendix 2) apply. In all cases where STF was implemented on the ground, the actual impacts of STF were the same as the predicted impacts, and caused no individual or cumulative significant impacts.

Comment:
Some comments state that STF is a connected action not subject to categorical exclusion. They posit that a proposed STF action is “always connected to a commercial timber sale” so categorically excluding an STF is a “segmenting action” which could prevent appropriate consideration of cumulative impacts.

Response:
The BLM position is that STF and timber sales are not connected actions under the NEPA. There are numerous administrative and information gathering activities that occur on forested BLM lands that may or may not be within proposed timber sale areas. Many of these activities, e.g., stand exams, prescription inventory plots, wildlife surveys, property line and boundary surveys, are typically performed through a basic data collection CX. These activities are separate actions that are carried out in different time periods to provide the BLM with information to expand the knowledge of resource values. Collecting inventory data through stand exams, conducting wildlife surveys, or felling sample trees to ascertain volumes is not directly connected to proposed actions, and does not make a resource use allocation decision. If a subsequent timber sale project is proposed, the BLM is mandated by regulation (40 CFR 1507 and 1508.4) and the DOI (516 DM 2) to determine the scope of the proposed timber sale, consider alternative actions, and assess the affected environment through an EA or EIS, as warranted, including potential cumulative impacts.

Comment:
Some comments state that the proposed STF CX 11.9C(6) violates a NEPA requirement that actions not be taken to implement a decision before a decision is made (e.g., cutting down sample trees in units that are or could potentially be allocated in a LUP for a timber sale). They state that the BLM is committing resources prejudicing the ultimate decision.

Response:
The BLM disagrees. Sampling the potential timber yield of an area to obtain basic resource inventory data is not equivalent to making a decision regarding resource use allocation. There are instances where for various reasons proposed timber units or sales have not been offered, even though sample trees were cut to gather information on stand harvest potential. Cutting individual sample trees at an average density of less than one tree per acre does not constitute an irrevocable commitment to sell the timber stand measured by this method.

Comment:
Some comments state the BLM should use the NWFP standards for exempting thinning projects in stands less than 80 years old from Regional Ecosystem Office (REO) review. They state that this action would help prevent the BLM “abuse of discretion in thinning in young stands to restore old-growth conditions in Late Successional Reserves (LSR).” The comments suggest that the REO exemption criteria are based on credible science that will help to build public trust/support.

Response:
No changes to the NWFP are proposed with this CX, and the BLM will continue to follow the standards of the NWFP when implementing the CX. The BLM will continue to follow the guidance contained in the REO Memorandum of April 20, 1995, “Criteria to Exempt Specific Silvicultural Activities in LSRs and MLSAs from REO Review.” By following the NWFP standards and the REO guidance when using the CX, the BLM concludes that no additional constraints need be applied, no “abuse in discretion in thinning” will occur, and no significant impacts will result.

Comment:
Some comments state that the number of trees to be sampled on average per acre is too small while others state the sample size is too large.

Response:
The numbers of trees sampled is not a randomly chosen number that is easily or arbitrarily increased or decreased. The numbers of trees to be sampled are determined by a statistical equation (refer to the current the BLM Timber Cruising Handbook, H-5310-1) and reflect past and projected future BLM practices. The total number of sample trees required is less than one tree per acre on average as shown by the data and ongoing BLM forestry management activities.

Comment:
Some comments state that using data from small tree STF to conclude that there are no impacts to old-growth STF is not logical. In addition, these data fail to reveal the real and cumulative environmental impacts of cutting old-growth STF. A related comment made is that if the tree is older it will be larger, and therefore, more likely to be included in the STF sample.

Response:
Based on the comments received, the BLM conducted a further review, which included six pre-2001 District-wide programmatic EAs for STF in Coos Bay, Eugene, Medford, Roseburg, Salem, and Lakeview District, Klamath Falls Resource Area. These EAs analyzed the effects of STF on trees of all ages, including older stands with timber greater than 80 years of age. Even with a greater number of large trees sampled, the environmental impacts are not significant. Based on the additional review of the STF Programmatic EAs and the findings published in the 71 FR 4159-4167, January 25, 2006, the BLM concludes that when there are no “extraordinary circumstances” (516 DM 2.3A(3) and appendix 2), the 11.9C(6) CX will not cause individually or cumulatively significant impacts, regardless of the age of the stand. The comment that a larger tree may be more likely to be included in the sample is not relevant to the use of a CX, since it does not change the conclusion that the sample size would average less than one tree per acre, and there would be no significant impacts from this level of action.

Comment:
Some comments state the BLM should correct the date on the “CX Project—Sample Tree Felling” analysis report (dated January 3, 2005), when the actual date was January 3, 2006.

Response:
The typographic error in the date of the analysis report has been corrected. The STF data analyzed were compiled in November 2005. The NEPA review process findings discussed in the analysis report came from STF projects performed between October 1, 2001, and September 30, 2005. The BLM subsequently examined pre-2001 programmatic EAs which resulted in the same finding—no individually or cumulatively significant effects occurred as a result of STF activities (see last comment and response).

Comment:
Some comments state that the “CX Project—Sample Tree Felling” analysis report should have documented the high costs associated with preparation of EAs.

Response:
The requested cost-benefit analysis is not required for this CX.

Comment:
Some comments state that STF sampling should be limited to young timber stands.

Response:
The BLM disagrees. The STF is used to obtain volume estimates based on generally accepted survey methods regardless of the age of the stand, which requires cutting representative trees, whether young or old. STF has been determined to be a more accurate method of determining tree volume in large trees because it is superior to other methods in detecting defect and measuring tree taper.

Comment:
The number of data analysis “flaws” is a concern. For example, failure to consider impacts on old-growth and reserve land allocations, flawed data collection methods, and analyzing STF data for only young trees to justify STF in old-growth forests. The BLM's assumptions and conclusion that STF does not constitute a significant action as defined by NEPA, could be wrong.

Response:
Based on the comments received, the BLM revisited the data used to prepare the “CX Report—Sample Tree Felling” posted at
http://www.doi.gov/oepc/cx_analysis.html
and
http://www.blm.gov/planning/news.html.
The BLM then conducted a further review of six pre-2001 District-wide programmatic EAs for STF (Coos Bay, Eugene, Medford, Roseburg, Salem, and Lakeview District, Klamath Falls Resource Area). These EAs included an analysis of the effects of STF on trees of all ages. The data analyzed by the BLM supports the conclusion that performing STF activities as described in the CX 11.9C(6), regardless of the timber age, and when there are no “extraordinary circumstances” (516 DM 2.3A(3) and appendix 2), will cause no individually or cumulatively significant impacts on the human environment.

Comment:
Some comments state that hundreds of old-growth trees will be removed if the STF CX 11.9C(6) is instituted.

Response:
By its own terms, the STF CX 11.9C(6) limits felling, bucking, and scaling sample trees to an average of one tree per acre or fewer. The CX does not include yarding and removal (harvesting) of trees; therefore, generally, the trees felled will remain in situ.

Comment:
Some comments state the BLM should clarify the language used in CX 11.9C(6). There was concern about: (a) Interpretation of the qualifier “approximately one [tree] per acre;” (b) the purpose of the reference to “use of ground-based equipment;” (c) whether “temporary” roads are considered roads in this context; and (d) what is meant by the timber yarding text. Some comments state that the CX language seems to “be a bit open-ended.”

Response:
The CX language for 11.9C(6) has been revised to clarify that the allowable action or activity is “less than one tree per acre on average” and the only tools permitted are “gas-powered chainsaws and handtools.” Road and trail construction (of any type) and “timber yarding” are expressly prohibited. The modifications tighten the language.

C(7)—Comments

Comment:
Some comments state that the 70-acre size threshold is excessively large for a “small” timber sale. They state that a 10-acre limit would be more appropriate based on “interim policy” issued in the 52 FR 30935, August 10, 1987, and reissued in the 53 FR 29505, August 5, 1988, and again revised in the 57 FR 43180, September 18, 1992.

Response:
The BLM disagrees. The FS updated its “interim policies” to set the 70-acre limit based on a relatively recent analysis of relevant data (68 FR 44598—44608, July 29, 2003). The BLM reviewed the FS changes in acreages over the 15-year period from 1987 to 2003, which resulted in a different position from past interim policies, and concluded that the data supported a FS size limit change from 10 acres in 1987 to 70 acres in 2003. The BLM determined that the 70-acre limit is appropriate to meet the BLM's needs, based on its review and comparability

analysis of the FS data, which was found to have no individually or cumulatively significant environmental effects. Using a 70-acre limit for both the BLM and the FS will help maintain consistency between the agencies when applying CXs. The BLM concluded from this review that there would be no significant effect, individually or cumulatively, from the 70-acre size limit for these actions on public lands.

Comment:
Some comments support the “even-aged regeneration” limitation, while others ask that it be stricken from the 70-acre live tree harvest CX 11.9C(7) language.

Response:
The BLM is not changing the even-aged regeneration harvest limitation. Even-aged regeneration harvests involve a different scope of environmental effects, which exceed the supporting data for the live tree harvesting CX. Uneven-aged harvest systems (individual tree selection and group selection) maintain the canopy of a forest stand; and therefore, have relatively little effect on the structural and aesthetic properties of stands. Even-aged regeneration harvests, such as clearcutting, seed tree, and shelterwoods, were excluded from use in CX 11.9C(7). The limitation was derived from the FS data that showed the action described in the CX to have no individually or cumulatively significant environmental effects, and which the BLM review and analysis concluded would cause no significant effects on the BLM lands. In addition, the BLM will apply the “extraordinary circumstances” test to individual actions covered by the CXs.

Comment:
Some comments ask the BLM to be more “inclusive of a greater range of possible live-tree cutting activities, whether to accomplish fuel reduction, forest health, wildlife, pre-commercial thinning, or commercial timber sale objectives.”

Response:
The CX 11.9C(7) language includes several examples of when it may be employed correctly; however, this is not an exhaustive list of potentially suitable applications. The live tree harvest CX focuses on small timber harvests of 70 acres or less regardless of the reasons for the harvest and specifically states the examples “may include” and “but are not limited to” those examples given in the CX. Therefore, the activities listed above could be covered by this CX if they meet all the CX qualifying criteria and none of the “extraordinary circumstances” as defined in 516 DM 2.3A(3) and appendix 2, apply.

C(8)—Comments.

Comment:
Some comments ask the BLM to define “dying tree” because “most mature trees are in some state of decadence.”

Response:
In the context of proposed CX 11.9C(8), a dying tree is a standing tree that has been severely damaged by forces such as fire, wind, ice, insects, or disease, and that in the judgment of an experienced forest professional or someone technically trained for the work, is likely to die within a few years.

Comment:
Some comments reference scientific findings that salvage tree harvesting will increase soil erosion and sedimentation through multiple mechanisms. Other comments ask the BLM to consider the scientific evidence that salvage tree harvesting is harmful to the environment and increases wildfire risk.

Response:
The BLM reviewed the FS data and practices, and determined that none of the sampled FS projects resulted in individually or cumulatively significant environmental effects. This indicates that agency practices and guidelines are effective at mitigating environmental impacts, including soil erosion, sedimentation, and fire risk. The BLM's salvage tree harvesting practices, guidelines and project effects are similar to the FS (
http://www.blm.gov/planning/handouts/CX_Report-Forestry-FS_CXs.pdf
). Therefore, the BLM concludes that by implementing similar salvage tree harvesting practices and guidelines, the BLM's salvage tree harvesting projects that use CX 11.9C(8), will have no significant impacts on environmental conditions including soil erosion, sedimentation, or increased fire risk. If one or more of the extraordinary circumstances listed in 516 DM 2, appendix 2 apply, the Responsible Official cannot use the new forestry CXs.

Comment:
Some comments posit that there is sufficient scientific evidence available that contradicts the “finding that no significant impacts” occur when the salvage tree harvesting CX 11.9C(8) criteria are used. They reference several scientific publications that support a conclusion that salvage tree harvesting is damaging to the human environment.

Response:
The BLM concludes that salvage tree harvesting will not have significant effects on the environment based on the review of the FS data where none of the FS sampled projects showed significant environmental impacts. As some scientific publications point out, salvage activities can have negative environmental impacts, depending on the condition of the site, the harvesting system, time of the year, and other factors. However, both the FS and the BLM practices and guidelines have been developed with regard to soil and water protection on appropriate sites that will lead to no significant effects. This indicates that agency practices and guidelines are effective at mitigating environmental impacts, including soil erosion, sedimentation, and fire risk. When designing salvage projects, the BLM uses an extensive array of guidelines and procedures to prevent and mitigate negative environmental impacts during these activities. The BLM's salvage tree harvesting practices and guidelines are similar to the FS (
http://www.blm.gov/planning/handouts/CX_Report-Forestry-FS_CXs.pdf
). Therefore, the BLM concludes that by implementing salvage tree harvesting practices and guidelines similar to those implemented by the FS; the BLM's salvage tree harvesting projects that use CX 11.9C(8), will have no significant impacts on environmental conditions including soil erosion, sedimentation, or increased fire risk. The Responsible Official must consider the “extraordinary circumstances” (516 DM 2.3A(3) and appendix 2) before deciding if a proposed action qualifies for using the CX. If one or more of the “extraordinary circumstances” listed in 516 DM 2 appendix 2 apply, the Responsible Official cannot use the new forestry CXs.

Comment:
Some comments ask the BLM to provide the scientific information necessary to justify an implied assumption that salvage tree harvesting has less environmental impacts than other types of tree harvesting.

Response:
Implied assumptions have not been used, nor has the BLM stated whether salvage tree harvesting has more or less environmental impacts than other types of tree harvesting. The purpose of the CX is not to compare the environmental effects of different types of tree harvesting, but to determine whether a CX for salvage tree harvesting is appropriate. The salvage tree harvesting CX 11.9C(8) is proposed based on the BLM's review of the FS conclusion that implementing the CX criteria will ensure that no individually or cumulatively significant impacts on the human environment will occur (68 FR 44598-44608, July 29, 2003). Where significant effects may occur, the FS concluded that their consideration of the FS “extraordinary circumstances” (FSH 1909.15, Ch. 30, Sec. 30.3, para. 2) would not allow the use of the CX. The BLM has completed a comparison and finds the FS CX to easily compare with the BLM CX; and therefore, will consider using this CX only when the CX qualifiers apply in full and when none of the DOI “extraordinary circumstances” apply (516 DM 2.3A(3)

and appendix 2). The harvest activity acreage limits were established by the FS based on review and analysis of the data used to establish the CXs (
http://www.fs.fed.us/emc/lth/1998_details.pdf
). The BLM concurs with the conclusions drawn by the FS, based on similar management practices and resulting environmental effects. The BLM concludes that with the acreage limitation and other criteria in place, the actions covered under the salvage tree harvesting CX will have no significant effect on the environment, individually or cumulatively.

Comment:
Some comments state that salvage tree harvesting harms species protected by the ESA, that the CX fails to acknowledge that large snags provide valuable habitat and contribute little to fire hazard, or that salvage tree harvesting has significant impacts on woodpeckers.

Response:
The BLM must ensure that any action authorized, funded, or carried out by its Responsible Officials is not likely to jeopardize the continued existence of any endangered, threatened, or proposed species (such as the woodpecker mentioned in the comment above), or result in the destruction or adverse modification of designated critical habitat. The BLM is required to comply with Section 7 of the Endangered Species Act, regardless of the type of NEPA document completed. The Responsible Official cannot use the salvage tree harvesting CX 11.9C(8) if any of the “extraordinary circumstances” in 516 DM 2.3A(3) and appendix 2 apply. Extraordinary circumstance 2.8 (516 DM 2 appendix 2) specifically prohibits the application of a CX review process if there is the potential to have a significant impact on listed species or their critical habitat.

Comment:
Some comments ask the BLM not to salvage log and gave the following reasons: Some forested areas are designated as “Late Successional Reserves” or “Critical Habitat Units” where the management goals are incompatible with salvage tree harvesting; salvage tree harvesting eliminates important stand history data, structure, variability, and complexity; large, decay resistant snags and logs are important ecologically; and the large pulse of dead wood created by disturbance (such as fire and disease) is significant for an ecosystem's recovery over the long-term.

Response:
Management goals in LSRs and salvage tree harvesting are compatible. For example, the 1994 NWFP and the six 1995 Western Oregon RMPs provide guidance for management of federal forest lands in western Oregon. The NWFP ROD identified specific conditions in which salvage tree harvesting could take place without negatively affecting the attainment of LSR goals (NWFP ROD,
Standards and Guidelines for Management of Habitat for Late Successional and Old-Growth Forest Related Species Within the Range of the Northern Spotted Owl,
Guidelines for Salvage pp. C13-C16). Salvage activities can have negative environmental impacts, depending on the condition of the site, the harvesting system, time of the year, and many other factors. However, both the FS and the BLM practices and guidelines have been developed with regard to soil and water protection on appropriate sites that will lead to no significant effects. For example, in the area covered by the NWFP, the ROD identified specific conditions in which salvage tree harvesting could take place without negatively affecting Late Successional habitat goals. All actions must conform to the LUP management guidelines regardless of the level of NEPA analysis completed (43 CFR 1610.5-3).

Comment:
Some comments state, “salvage tree harvesting is not compatible with contemporary ecosystem-based management.”

Response:
Salvage tree harvesting is one of many methods used to achieve a goal on the landscape, and is compatible with ecosystem-based management. The BLM uses ecosystem management to look at the big picture, beyond federal agency boundaries, and to work closely with other land managers, both public and private. When analyzing effects, the BLM addresses the long-term consequences of today's decisions, analyzing effects to various resources as interrelating parts of systems rather than as individual components to be managed separately. When implementing decisions, the BLM uses many tools. Salvage tree harvesting is one of the tools used to achieve on-the-ground goals.

Comment:
Some comments state that there is an increased risk that a “commercial” salvage tree harvesting project will “escape” sufficient environmental analysis to prevent significant environmental impacts.

Response:
The BLM disagrees. The FS data were reviewed for this activity, and demonstrate that no individually and cumulatively significant environmental impacts are likely to occur if the salvage tree harvesting CX criteria apply and if a determination is made that none of the “extraordinary circumstances” (516 DM 2.3A(3) and appendix 2) apply. The BLM determined that establishing the CX is appropriate. The analytical findings did not differentiate between commercial and non-commercial activities. The effects on the ground of a project would be the same regardless of whether someone is likely to profit from the venture.

Comment:
Some comments state that there are increased fire risks associated with salvage tree harvesting which will be overlooked in the CX review process.

Response:
Based on the BLM review and analysis of the data, the BLM concludes that actions qualifying for the CX will not cause a significant increase in fire risk or fire hazard.

Comment:
Some comments ask the BLM to consider the effects of salvage tree harvesting by preparing a “new programmatic EIS for young complex forests” because the FS and the BLM “have [not] fully disclosed and considered current scientific understandings about the role of fire in forest development.”

Response:
The role of fire in forest development is beyond the scope of the proposed action.

C(9)—Comments.

Comment:
Some comments state that the phrase “and adjacent live uninfested/infected trees as determined necessary” should either be eliminated or quantified to show that a state licensed, responsible FS or BLM consultant, employee, or expert in the field, has validated and documented the need to harvest adjacent trees.

Response:
Federal agency specialists are qualified to make determinations necessary in order to carry out their work in support of the federal government, and are not required to have state licenses. A forester or trained person determines if a tree adjacent to an infected tree should be removed to reduce the chance of spreading insects or disease to the rest of the timber stand. Typically trees are harvested that are expected to die within a year and have indicators such as: No new growth, lack of leaves during the growing season, yellowing needles, loss of needles or leaves in the tree crown, or are immediately adjacent to dead trees recently killed by root rot. Sanitation tree harvesting would not remove all defective trees as many are left for wildlife and other resource values.

Comment:
Some comments state that the BLM overestimates the negative effects of insects and disease and fails to consider beneficial effects.

Response:
The BLM agrees that there are both negative and positive effects from insect-infested and diseased trees. However, the BLM is not placing value judgments on the positive or negative effects, but is premising this CX on its judgment that a FS analysis effort correctly found that the effects of sanitation harvesting up to 250 acres

when specific criteria are met will have no significant effect, individually or cumulatively. The harvest activity acreage limits were determined by the FS based on review and analysis of the data used to establish the CXs (
http://www.fs.fed.us/emc/lth/1998_details.pdf
). The BLM concurs with the conclusions drawn by the FS and concludes that for BLM actions, due to similar management practices in similar ecosystems, the resulting environmental effects on public lands will be not significant, individually or cumulatively. Further, the BLM will review each proposed action against the DOI “extraordinary circumstances” (516 DM 2.3A(3)). If any apply, the CX cannot be used.

Responses to Specific Comments on Section 11.9—Categorical Exclusions

D. Rangeland Management (sub-part (10)-(12))

D(10)—Comments
.

Comment:
Some comments ask the BLM to explain the relationship between the proposed vegetation management CX 11.9D(10) and the “Draft Vegetation Treatments Using Herbicides on Bureau of Land Management Lands in 17 Western States Programmatic Environmental Impact Statement; Volumes 1 & 2” (DVPEIS). Some comments are concerned that the proposed vegetation management CX will “be abused” to meet a threefold annual increase in treated acres proposed in the DVPEIS.

Response:
The November 2005 DVPEIS (
http://www.blm.gov/weeds/VegEIS/index.htm
) analyzed the potential effects of one of the BLM's vegetation management tools (application of herbicides). The CX 11.9D(10) is established because the BLM has reviewed the environmental effects of site-specific routine vegetation management activities and determined that those activities, absent extraordinary circumstances, do not have individual or cumulative significant effects and the activities can proceed without being analyzed in an EA or EIS. By its own terms, this CX does not allow its use with respect to any proposed chemical herbicide action.

Comment:
Some comments state that the justification for the proposed vegetation management CX 11.9D(10) is inadequately substantiated. They point to the fact that the BLM has based its justification on data from post-fire restoration efforts and “no data specific to the myriad other vegetative manipulation projects.”

Response:
Though the purpose of treating hazardous fuels and applying post-fire emergency rehabilitation is different from “routine management of vegetation,” the actions and resulting effects are judged to be the same by professionals in the BLM. Therefore, the BLM has determined that it is appropriate to establish this CX based on these on-the-ground similarities. Data on routine vegetation manipulation activities designed to reduce hazardous fuels and mitigate post-wildfire environmental impacts were collected in September 2002 and analyzed in June 2003 to determine whether two CXs proposed under the Healthy Forest Initiative (HFI) (68 FR 33813-33824, June 5, 2003), were appropriate on DOI and FS lands. These same types of routine vegetation manipulation activities, and their effects on the same lands and resources analyzed in that context, would be addressed by the CX under consideration here. In the HFI context, information on 30 variables for 2,558 projects representing a range of conditions across the United States was analyzed. These data included project-specific information on the location, size, vegetation type, NEPA review processes used, pr

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3AE7-15746. Public record. Not legal advice.