UNITED STATES DEPARTMENT OF THE INTERIOR
BUREAU OF LAND MANAGEMENT
WASHINGTON, D.C. 20240
http://www.blm.gov/

  
March 5, 2010
In Reply Refer To:
1110 (230/300) P
 
EMS TRANSMISSION 03/05/2010
Instruction Memorandum No. 2010-071
Expires: 09/30/2011
 
To:             All Field Officials
 
From:         Director
 
Subject:     Gunnison and Greater Sage-grouse Management Considerations for Energy Development (Supplement to National Sage-Grouse Habitat Conservation Strategy)
 
Program Areas: Oil and Gas, Oil Shale, Geothermal, Wind, Solar, and Associated Rights-of-Way, Wildlife, Land Use Planning, National Environmental Policy Act.

Purpose: This Instruction Memorandum (IM) supplements the Bureau of Land Management’s (BLM) 2004 National Sage-Grouse Habitat Conservation Strategy (BLM National Strategy). The BLM is issuing this IM in light of—

  • recent peer-reviewed scientific studies addressing the impacts of oil and gas development on sage-grouse;
  • the currently limited information available concerning the impacts of wind energy development on sage-grouse; and
  • the increasing land use pressures on the public lands, including the BLM’s authorization of renewable energy projects. 
This IM identifies management actions necessary at some sites to ensure environmentally responsible exploration, authorization, leasing, and development of renewable and non-renewable energy resources within the ranges of the Gunnison sage-grouse and greater sage-grouse. 
 
On March 5, 2010, the U.S. Fish and Wildlife Service announced that listing of the greater sage-grouse as an endangered species under the Endangered Species Act (ESA) is warranted, but listing is precluded by the need to complete other listing actions of higher priority.  In view of this finding, it is of even greater importance that the BLM continue to work to improve the BLM National Strategy.  This IM, focusing on energy development, is another step in that direction.  When a range-wide “priority” or “core” sage-grouse habitat map is developed and as additional research on threats to sage-grouse other than energy development becomes available, the BLM will issue a more comprehensive Bureau-wide policy directive.  The BLM will continue to work with its partners—the Western Association of Fish and Wildlife Agencies (WAFWA), U.S. Fish and Wildlife Service, U.S. Geological Survey, Natural Resources Conservation Service, U.S. Forest Service, and the Farm Service Agency—within the framework of the partners’ Sagebrush Memorandum of Understanding (2008) (Sagebrush MOU) and the Greater Sage-Grouse Comprehensive Conservation Strategy (2006) (Multiagency Strategy).
 
Policy/Action: The Gunnison sage-grouse and greater sage-grouse are BLM sensitive species that are to be managed to promote their conservation and to minimize the need for listing under the ESA, in accordance with the BLM’s special status species policy (BLM Manual 6840).  Therefore, when necessary to maintain sustainable sage-grouse populations across the broader landscape within the state, field managers will implement an appropriate combination of the following actions in “priority habitat.” 
 
Generally speaking, “priority habitat” is the habitat of highest conservation value relative to maintaining sustainable sage-grouse populations range-wide. Priority habitat will be areas of high quality habitat supporting important sage-grouse populations, including those populations that are vulnerable to localized extirpation but necessary to maintain range-wide connectivity and genetic diversity.
 
I.          Actions Available for Protection of Sage-grouse Populations

Oil and Gas/Geothermal:

  • Withhold from sale or defer the sale of parcels, in whole or in part, that industry has proposed for oil and gas or geothermal leasing in priority habitat as supported by analysis under the National Environmental Policy Act (NEPA) of the impacts of leasing on sage-grouse.
  • If parcels are offered for sale in sage-grouse priority habitat, attach a lease notice to new leases alerting the lessee that additional conditions will be applied to approvals to develop to the lease, including Applications for Permit to Drill (APDs), sundry notices and associated rights-of-way, if future sage-grouse conservation efforts are appropriate.
  • In priority habitat and where supported by NEPA analysis, attach conditions to the approval of APDs that are more protective than the stipulations or restrictions identified in the applicable Resource Management Plan (RMP), as appropriate.
Oil Shale:
  • Screen new oil shale lease applications to identify whether the proposed leasing area includes priority habitat.  If so, alert the applicant as early as possible that, pending NEPA analysis, the application may be delayed or denied or that lease stipulations and project conditions of approval may be imposed that designate avoidance areas or include No Surface Occupancy restrictions, for example.

Wind and Solar Energy Development and Associated Site Testing:

  • Screen new right-of-way applications to identify whether the wind or solar energy development or site testing and project area includes priority habitat.  If so, alert the applicant as early as possible that the application may be denied or that terms and conditions may be imposed on the right-of-way grant to protect priority habitat as supported by NEPA analysis.

Transmission:

  • Re-route proposed transmission projects to avoid priority habitat.

RMP Revisions/Amendments:

  • In RMP revisions and amendments, analyze one or more alternatives that would exclude priority habitat from energy development and transmission projects.
The BLM will consider how projects can avoid, minimize, and mitigate impacts onsite. However, the BLM may condition approval of a project proposal upon additional onsite modification or additional mitigation, including offsite mitigation. 
 
Both the BLM and the state fish and wildlife agencies recognize that priority habitat has not been identified range-wide utilizing a consistent methodology.  Until the BLM has fully engaged its state fish and wildlife agency counterparts in the mapping of priority habitat, the BLM will identify priority habitat using RMPs, state-led and Local Working Group sage-grouse plans, peer-reviewed literature, conservation plans or agreements, and professional judgment.
 
II.        Future Actions for the Protection of Sage-grouse Populations

Further action that will help to develop a comprehensive Bureau-wide policy for the protection of sage-grouse populations and the conservation of habitat on a landscape scale will be pursued in the near future.  These efforts will be undertaken within the collaborative framework established by the Sagebrush MOU and the Multiagency Strategy. Specifically, the following steps will be taken after issuance of this IM:

  • The BLM will continue to work with the state fish and wildlife agencies, using a consistent protocol, to delineate and map areas of high priority habitat across the ranges of Gunnison sage-grouse and greater sage-grouse.  This map will serve as a platform for a more directed Bureau-wide sage-grouse policy, similar to the approach already taken in Wyoming.
  • Upon completion of a range-wide priority habitat map described above, each BLM State Office, working in coordination with the respective state fish and wildlife agency, will identify state-specific management actions (not limited to energy development) on a landscape level that will be undertaken both inside and outside of identified  priority habitat in order to maintain sustainable sage-grouse populations. 
Protection of sage-grouse populations and habitat is of critical importance, and several BLM State Offices have extensive sage-grouse conservation plans that were developed cooperatively with state fish and wildlife directors and stakeholder groups. In taking the steps listed above, the BLM will work diligently to ensure that it addresses local efforts or situations. 
 
Timeframe:  This IM is effective immediately.
 
Budget Impact:  This IM will result in additional costs for mapping, coordination, NEPA review, and monitoring.
 
Background:  It is imperative that fragmentation and degradation of Gunnison sage-grouse and greater sage-grouse habitat not continue to the point that sustainable sage-grouse populations can no longer be supported.  In November 2004, the BLM published the BLM National Strategy.  The BLM National Strategy set goals and objectives and assembled guidance and resource materials. It also provided comprehensive management direction for the BLM’s contributions to the ongoing multi-state sage-grouse conservation effort, in cooperation with WAFWA.  This IM reflects continued implementation of the goals set forth in the BLM National Strategy.
 
Although the focus of this IM is energy development, energy development is not the only or necessarily the most significant threat to Gunnison or greater sage-grouse.  The purpose of this IM is to highlight management actions affecting sage-grouse habitat that will be necessary to sustain sage-grouse populations in light of new information and the Department of the Interior’s energy-related priorities.
 
Since completion of the BLM National Strategy, additional peer-reviewed research analyzing the impacts of oil and gas development on greater sage-grouse has become available. Some aspects of oil and gas development affecting sage-grouse use of an area (e.g., construction of facilities, road networks, and resulting habitat fragmentation) also occur in other types of energy development.  In addition, while not specific to Gunnison sage-grouse or greater sage-grouse, other research has been completed on the impacts of wind energy development on prairie chickens that is applicable to closely related species such as Gunnison and greater sage-grouse.  The BLM will consider this body of research in the context of all energy development activities on the public lands. 
 
The Mineral Leasing Act (Act or MLA) provides that all lands subject to the Act “which are known or believed to contain oil or gas deposits may be leased by the Secretary [of the Interior].”  30 U.S.C. 226(a) (2009).  The Supreme Court held that the Act gives the Secretary broad discretion not to offer an oil and gas tract for leasing.  Udall v. Tallman, 380 U.S. 1, 4 (1965).  The U.S. Court of Appeals for the Ninth Circuit held that refusing to issue leases is a legitimate exercise of the Secretary’s discretion under the MLA (see Burglin v. Morton, 527 F.2d 486, 488 (9th Cir. 1975) (citing Tallman, 380 U.S. at 4)).   The Interior Board of Land Appeals has expressly held that lands identified for oil and gas leasing in an RMP are open for permissible uses, and the BLM has no duty to offer them for lease, even when the BLM has received a pre-sale non-competitive offer to lease (Richard D. Sawyer, 160 IBLA 158, 163 (2003)) or a nomination for competitive lease (Marathon Oil Co., 139 IBLA 347 (1997)).  The BLM may also decline to lease even after the BLM has received bids and bonus monies at a competitive lease sale (Continental Land Resources, 162 IBLA 1, 14-15 (2004)).  The IBLA has also upheld the BLM’s authority to impose more stringent protection measures on approval of development plans or permits than provided for in lease stipulations when supported by current science and analyzed through the NEPA process (see William P. Maycock, 177 IBLA 1 (2009); Yates Petroleum Corp., 176 IBLA 144 (2008)).
 
Title V of the Federal Land Policy and Management Act, 43 U.S.C. 1761-1771, authorizes the Secretary to grant rights-of-way over, upon, under, or through the public lands for a variety of purposes, such as roads, water pipelines, systems for generation of electric energy, and communication systems.  The IBLA has held that a decision to issue a right-of-way is discretionary. (Mark Patrick Heath, 161 IBLA 381, 388 (2004)).  The discretionary nature of a right-of-way grant is underscored by BLM regulations at 43 CFR 2804.26, which provide that an application for a right-of-way may be denied if the proposed use would not be in the public interest.
 
Coordination:  This IM was coordinated with the Assistant Director, Renewable Resources and Planning (WO-200), the Assistant Director, Minerals and Realty Management (WO-300), and BLM Deputy State Directors. 

Contact:  State Directors may direct any questions or concerns to Michael D. Nedd, Assistant Director, Minerals and Realty Management (WO-300), at 202-208-4201 or mike_nedd@blm.gov, and Edwin Roberson, Assistant Director, Renewable Resources and Planning (WO-200), at 202- 208-4896 or edwin_roberson@blm.gov.  

Signed by:                                                                   Authenticated by:
Robert V. Abbey                                                          Robert M. Williams
Director                                                                       Division of IRM Governance,WO-560