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Examples of Decision Records

Last Page Update: July 29, 2010

Right of the Way Example 

Santa Clara Pipeline and City of St. George Wells
DOI-BLM-UT-C010-2009-0089
UTU-66666
It is my decision to authorize a FLPMA right-of-way to the Washington County Water Conservancy District for the Santa Clara Project pressurized pipeline. This decision is contingent on the Conservancy District fulfilling applicable environmental commitments, including certain monitoring commitments described in the Proposed Action of the EA.
It is my decision to authorize a FLPMA right-of-way to the City of St. George for two well sites and associated delivery water lines, pumping facilities, and a power distribution line. This decision is contingent the City fulfilling applicable environmental commitments, including certain monitoring commitments described in the Proposed Action of the EA.
 
Authorities: FLPMA
 
Terms, Compliance and Monitoring:
Potential resource conflicts were resolved through environmental commitments integral to the Proposed Action and monitoring stipulations. These are fully described in the subject EA, which is incorporated by reference in the FONSI/DR. These commitments and stipulations were developed during project planning involving all participants in the Virgin River Recovery Program and during ongoing consultations with the Shivwits Band.
The City has also committed to provide monthly data collected from wells in the Gunlock well field, including the three new wells permitted pursuant to the Settlement Act, to the Virgin River Program, the Shivwits, Band, BLM, and BIA. These data will be provided within 10 working days of the end of each month and will include total withdrawals from each source and the corresponding water right number for that source, as assigned by the State Engineer.
 
Alternatives Considered:
The EA considered two alternatives: the No Action Alternative and the Proposed Action, which is the alternative recommended by the cooperating parties.
The No Action Alternative was not selected because it would not conserve water within the Santa Clara River system to settle water rights claims for the Shivwits Band and other non-Indian water users and to enhance aquatic habitat for the Virgin Spinedace and other sensitive native species.
 
Alternatives considered but eliminated from detailed study:
Other alternatives that were considered but eliminated from detailed study in the EA included:
·         An alternative pipeline location within the Santa Clara River channel for a distance of 2 miles downstream of Gunlock Reservoir.
The above alternative would have created unacceptably high impact levels on sensitive riparian values and, therefore, was not carried forward for detailed analysis.
·         An alternative engineering design that would have reduced the length of the proposed pipeline between Winsor Diversion and Ivins Reservoir.
This option was evaluated but determined not to meet the purpose and need for the Proposed Action, since it would not conserve sufficient water to meet certain resource objectives. It was also eliminated from detailed study in the EA.
 
Rationale for Decision:
The environmentally preferred alternative is determined by evaluation against the national environmental policy, articulated in Section 101 of NEPA and implemented through regulations, policies and guidelines issued by the Council on Environmental Quality at 40 CFR 1500.
Among other factors, the environmentally preferred alternative helps to:
·         Preserve important historic, cultural, and natural aspects of our national heritage and maintain, whenever possible, an environment that supports diversity and variety of individual choices;
·         Attain the widest range of beneficial uses of the environment without degradation, risk of health or safety, or other undesirable and unintended consequences.
The decision to grant rights-of-way to the Conservancy District and the City has been made in consideration of the enhancements to native species habitats and populations, as well as the riparian corridor along the Santa Clara River to be realized through the construction and operation of the Pipeline Project. The Pipeline Project will also result in socio-economic benefits to the Shivwits Band, the City, and non-Indian water users of the Santa Clara River system (e.g., irrigation companies, municipalities, and private land owners) by assuring their water rights and delivering water through the pressurized pipeline. The Well Project will ensure that the City can satisfy current water user demands in dry years and meet future water needs for a period of time. Supplemental project water, as defined by the Settlement Act, will also be provided to the Shivwits Band through the Well Project. The Proposed Action will benefit the Shivwits Band by ensuring a sustainable water resource that could encourage long-term economic stability, growth, and community development on the Shivwits Reservation.
 
Protest/Appeal Language:

This decision shall take effect immediately upon the date it is signed by the Authorized Officer, January10, 2006, and shall remain in effect while any appeal is pending unless the Interior Board of Land Appeals issues a stay (43 CFR 2801.10(b)). Any appeal of this decision must follow the procedures set forth in 43 CFR Part 4. Within 30 days of the decision, a notice of appeal must be filed in the office of the Authorized Officer at St. George Field Office, 345 East Riverside Drive, St. George, Utah 84770. If a statement of reasons for the appeal is not included with the notice, it must be filed with the Interior Board of Land Appeals, Office of Hearings and Appeals, U.S. Department of the Interior, 801 North Quincy St., Suite 300, Arlington, VA 22203 within 30 days after the notice of appeal is filed with the Authorized Officer.

 

Grazing Example

United States Department of the Interior
Bureau of Land Management
_____________ Field Office
Address
(Phone number)
Certified Mail No.____________
Return Receipt Requested
 
4160
(OFFICE CODE)
 
DATE
 
XYZ Ranch, PERMITTEE OR LESSEE
c/o AUTHORIZED REPRESENTATIVE
P.O. Box xxxx
Outback, NV xxxxx
 
NOTICE OF FINAL DECISION
 
INTRODUCTION
 The Outback Allotment is located in Washoe County, Nevada, and is approximately 30 miles northeast of Sparks, Nevada, and 4 miles northwest of Wadsworth, Nevada. Administered by the Outback District Office (ODO), Nevada, the allotment consists of 35,000 acres of public land and 3,000 acres of private lands. The Outback Allotment is part of the Australian Range, with elevations ranging from slightly under 4,000 feet to almost 8,000 feet. The south boundary fenceline borders the Kangaroo Allotment; the Australian Range makes up the western side, which is unfenced; and the Melbourne Indian Reservation borders the allotment on the east and north. The allotment boundary is fenced except for the western side and a little over a mile stretch on the southwest boundary.
 
The Allotment has two permittees with grazing permits, and they consist of the following:
1) Mr. John Smith is authorized to graze 10 cattle from April 1st through November 1st for a total of 75 Animal Unit Months (AUM’s). He mainly uses the far western side of the allotment, west of the ridgeline along the Australian Range.
 
2) The Melbourne Tribe is authorized to graze 150 cattle from April 1st through November 1st for a total of 1,000 AUM’s. This use occurs mainly on the eastern side of the allotment, where elevations are lower and water sources are more accessible. It has been common for different tribal members to use the Outback Allotment from year to year. This makes effective range management difficult since the allotment is often unfamiliar to both the cattle and the operator.
 
The Record of Decision for the Major Land Use Decision Summary and Environmental Impact Statement, Melbourne Planning Area was issued in 1985. These documents established the multiple use goals and objectives which guide management of the public lands contained in the Allotment. The Rangeland Program Summary (RPS) for the Melbourne Resource Area was issued in 1985 and updated in 1989, which further identified the allotment specific objectives for this area of public lands.
 
The ODO established the 2001 Consolidated Resource Management Plan (CRMP), which incorporates decisions from eight major field office planning documents and five amendments to these plans.
 
As identified in the RPS, monitoring was established on the allotment to determine if existing multiple uses were consistent with the attainment of the objectives established by the Resource Management Plans (RMPs). Monitoring data has been collected, and this data has been analyzed, through a Standards and Guidelines (S&G) assessment, to determine progress in meeting multiple use objectives and determine if changes in existing management are required in order to meet specific objectives for the allotment.
 
BACKGROUND
The ODO is in the process of renewing all of its active grazing permits under the requirements of recent regulations. Monitoring has been carried out on this allotment, a S&G Determination completed, and an Environmental Assessment (EA-NV-123-09-01) that analyzed a proposed action and alternatives was prepared. The Proposed Action, as put forth in this Decision, is a result of those activities.
 
In July 2007, a S&G Assessment was conducted on the allotment in order to document current conditions and determine if the allotment is currently achieving applicable Rangeland Health Standards and conforming to the applicable Guidelines for Livestock Grazing Management. As a result of the riparian assessments, it was determined that the Standard for riparian/wetlands is not being met and that cattle grazing has been the major cause of the declining condition of the springs and creeks within the King exclosure, as well as in the adjacent riparian area outside the fence.
 
The King exclosure, located at T. 30 N., R. 30 E., Section 36, with parts of it overlapping into Sections 35 and 34, was built in 2001 to protect the riparian areas from trampling and overgrazing, as well as to improve the condition of the springs and creeks. From 2001 to the present, this exclosure has been officially closed to grazing, due to the fact that the riparian areas have not been in proper functioning condition (PFC); however, cattle have either been allowed into the exclosure by the permittee(s) or the general public, or recreationists have left gates open, resulting in unauthorized cattle use. This has resulted in severe use of the riparian areas within the exclosure, to include grazing and trampling. Since the riparian areas were rated functional-at- risk with a downward trend, almost to the point of being nonfunctional, livestock grazing practices will need to be adjusted and the changes specified in the new Term Grazing Permits.
 
All other standards and guidelines are being met.
 
A Notice of Proposed Decision regarding the reissuance of two Term Grazing Permits for the Outback Allotment was mailed to all interested parties on July 29, 2008. A timely Protest to this Proposed Decision was received from John Smith on August 5, 2008. I have carefully considered the Protest’s statements of reasons as to why the Proposed Decision was in error, and have responded below.
 
Point
“What are the high quality riparian plants missing? Is this environment capable of supporting them?” Mr. Smith also submitted seven photos taken of the riparian and upland vegetation inside the King exclosure in July 2008 “that show a totally different perspective than that found in the proposed decision.”
 
Response
In two of Mr. Smith’s photos, one looking west towards lower King Creek and the other looking east, it is evident that there are mature and decadent willows (Salix species) present, with substantial dead woody material in the canopy layer. In these photos, as well as those in the ODO allotment files, young willow plants are absent.
 
In July 2007 riparian assessments were conducted on the King Spring, the North Fork King Creek System, and the South Fork King Creek System using the Lentic Standard Checklist from A User Guide to Assessing Proper Functioning Condition and the Supporting Science for Lentic Areas, a technical reference provided by the Natural Resources Conservation Service (NRCS).
 
According to the NRCS Washoe County Soil Survey-South Part, issued in 1983, a wet meadow site, where elevations are 5,000 to 7,000 feet and the annual precipitation averages 10 – 14 inches, Nevada bluegrass (Poa nevadensis) and sedge (Carex species) should be dominant. This plant community also consists of meadow barley (Hordeum brachyantherum), rush (Juncus species), cinquefoil (Potentilla species), groundsel (Senecio species), wild iris (Iris missouriensis), common yarrow (Achillea millefolium), willow (Salix species), rose (Rosa species), and other minor grass, forb and shrub species.
 
The following species lists were compiled by the ODO botanist for each of the riparian assessments:
King Spring
Carex douglasii
Juncus balticus
Juncus ensifolius
 
North Fork King Creek System
Juncus balticus
Rosa woodsii
 
South Fork King Creek System
Carex nebrascensis
Juncus balticus
Juncus ensifolius
Rosa woodsii
Salix exigua
 
The ODO hydrologist, soil scientist, and botanist determined that the soil and vegetative potential were present, but the riparian vegetation did not meet the functional criteria. The functional-at-risk with a downward trend rating was given based on the potential of the riparian vegetation to occur.
 
Willow should be present at all three sites, but it was only found at the South Fork King Creek System’s assessment location. Sedges, rushes, and bluegrasses were also very limited in their occurrence.
 
Hydrology, vegetation, and erosion/deposition were all assessed as part of the rating process. Below are some of the observations and concerns:
1) On all three sites, it was found that the riparian-wetland areas are shrinking. Areas that should be wet meadow are dry due to cattle trailing, entrenchment, and punched out soil from trampling, all causing drainage of the available water;
2) Natural surface/subsurface flow patterns are being altered by hoof action;
3) There is not a diverse age-class distribution for maintenance or recovery of the riparian systems although those species present indicate that the environment is capable of this diverse age-class. It was noted that cattle were eating the seed heads from the grasses and willows, as well as removing a large amount of the foliage, reducing the recruitment and the development of those plants; and
 
4) There is not a diverse composition of riparian-wetland vegetation for maintenance or recovery although those species present indicate that the environment is capable. It was noted that there is a lack of willows present, especially seedlings.
 
Point
“A definition of a permanent closure is lacking.” The closure refers to the King exclosure.
 
Response
The permanent closure of the King exclosure means that cattle cannot use this area, except every four years when temporary nonrenewable use (TNR) will be authorized for one month of high intensity grazing, as described in EA-NV-123-09-01. Permittees will be restricted from using the exclosure, to include grazing, herding, trailing or gathering their cattle. The permanent closure will remain in place for the duration of the two new term grazing permits, or 10 years, to allow the riparian areas in the King exclosure an opportunity to achieve their potential. Before the grazing permits have expired, a ODO interdisciplinary (ID) team will assess the condition of the riparian areas. If they are in Proper Functioning Condition (PFC) at that time, management of the King exclosure may be modified, depending on the professional recommendations of the ID team. Any modifications made in the management of the exclosure, must be able to sustain the desired condition of PFC for the riparian-wetland area.
 
FINAL DECISION
After careful consideration of the Protest received, all further information received through consultation, communication and coordination with the interested public, and reconsideration of all information contained in the EA prepared for this action, my Final Decision is to implement the Proposed Action as described in Environmental Assessment EA- NV-123-09-01 for authorization of livestock grazing use on the Outback Allotment.
 
Implementation of the Proposed Action will authorize the following:
(1) a new ten year grazing permit to Mr. John Smith which would allow 10 cattle to graze on the Outback Allotment from April 1st until November 1st for a total of 75 AUM’s;
 
(2) a new ten year grazing permit to the Melbourne Tribe which would allow 150 cattle to graze on the Outback Allotment from April 1st until November 1st for a total of 1,000 AUM’s;
 
(3) the permanent closure of the King exclosure, except for one month of high intensity grazing every four years to the 60 – 70% utilization level;
 
(4) the construction of fencing to replace gate numbers 1, 3, and 4, as well as the installation of a cattle guard at the south end of the King exclosure to replace gate #2 (refer to EA- NV-123-09-01 for gate locations);
 
(5) the closure of the north fork of King Creek road as it nears the riparian area with the placement of large boulders (exact location of boulders to be determined by the interdisciplinary team).
 
(6) installation of a sign along the north fork of King Creek road just past King Spring to warn the public that the road is closed ahead for riparian and vegetative rehabilitation.
 
RATIONALE
Current grazing management on the Outback Allotment is not meeting the following Standard: Riparian/Wetlands. Riparian assessments have shown that the riparian areas are functional-at-risk, with a downward trend, almost to the point of being nonfunctional, due to heavy cattle utilization and trampling. EA- NV-123-09-01 describes a Proposed Action that would improve the vegetative, riparian, and wildlife habitat conditions.
 
Riparian/Wetlands
Based largely on the 2001 assessments, grazing was restricted in the King exclosure that encompasses a large part of the King Creek watershed. Following three years of rest, the riparian areas showed marked improvement during the 2004 assessments, with all areas still functional-at-risk, but in an upward trend. Vegetation was able to begin recovery, trapping sediment and making more efficient use of water onsite rather than allowing rapid runoff to occur.
 
Between 2004 and 2007, unauthorized use of the exclosure occurred. Conditions degraded back to a state similar to those observed in 2001. All of the areas assessed received a functional-at-risk rating with a downward trend, almost being nonfunctional. Cow trailing and heavy use of vegetation cover resulted in lentic areas drying and shrinking in size. In 2007, species composition and cover were insufficient to rate any areas as properly functioning or even an upward trend.
 
Relying on people to close the gates in the exclosure has not worked to control the cattle and keep them out of the riparian areas since it is not known for sure who is opening them and then leaving them open. Using the gate at the south end of the road in order to utilize the southern portion of the Outback Allotment has been the most convenient method to herd the cattle to that area; however, cattle have been allowed to remain in the exclosure for extended periods of time instead of being moved quickly through to the other side.
 
It has been determined that livestock grazing practices need to be adjusted and the changes specified in the new Term Grazing Permits.
 
The Proposed Action would permanently close the King exclosure, except for one month of high intensity grazing every four years, allowing cattle to graze the crested wheatgrass to the 60 – 70% level, which is considered to be heavy utilization. In an attempt to keep the cattle from being inside the King exclosure and furthering degradation of the riparian areas, it will be necessary to eliminate the problem of leaving the gates open, to include the permittees, recreationists, and other members of the public. This will entail building fence to replace three of the four gates and installing a cattle guard at the south end of the exclosure to replace the other gate. This will allow the general public easy access through the exclosure without having to ensure gate closures. Besides replacing the gates with wire, the fence will need to be repaired in at least seven locations, with either additional wire, clips, or whatever may be needed. These locations have been identified in EA- NV-123-09-01.
 
The permittees will be required to herd their livestock around the King exclosure if they wish to graze their cattle on areas usually accessed by the roads inside the exclosure. This will help ensure that cows are not trapped or allowed into the exclosure, either willfully or nonwillfully.
 
Other changes recommended under the Proposed Action include closing the north fork of King Creek road as it nears the riparian area and the installation of an interpretive sign to inform the public that the road is closed ahead for riparian and vegetative rehabilitation. The road closure will be done by placing large boulders across the road (exact location of boulders to be determined by the interdisciplinary team).
 
AUTHORITY
The following citations come from 43 CFR, Subpart 4100:
 
{§4100.0-8} states that “The authorized officer shall manage livestock grazing on public lands under the principle of multiple use and sustained yield, and in accordance with applicable land use plans. Land use plans shall establish allowable resource uses (either singly or in combination), related levels of production or use to be maintained, areas of use, and resource condition goals and objectives to be obtained. The plans also set forth program constraints and general management practices needed to achieve management objectives. Livestock grazing activities and management actions approved by the authorized officer shall be in conformance with the land use plan as defined at 43 CFR 1601.0-5(b).”
 
{§4110.3} states that “The authorized officer shall periodically review the permitted use specified in a grazing permit or lease and make changes in the permitted use specified in a grazing permit or lease and shall make changes in the permitted use as needed to manage, maintain or improve rangeland productivity, to assist in restoring ecosystems to properly functioning condition, to conform with land use plans or activity plans, or to comply with the provisions of subpart 4180 of this part. These changes must be supported by monitoring, field observations, ecological site inventory or other data acceptable to the authorized officer.”
 
{§4130.3} states that “Livestock grazing permits and leases shall contain terms and conditions determined by the authorized officer to be appropriate to achieve management and resource condition objectives for the public lands and other lands administered by the Bureau of Land Management, and to ensure conformance with the provisions of subpart 4180 of this part.”
 
{§4130.3-1} states that “(a) The authorized officer shall specify the kind and number of livestock, the period(s) of use, the allotment(s) to be used, and the amount of use, in animal unit months, for every grazing permit or lease. The authorized livestock grazing use shall not exceed the livestock carrying capacity of the allotment.” “(b) All permits or leases shall be made subject to cancellation, suspension, or modification for any violation of these regulations or of any term or condition of the permit or lease.” “(c) Permits and leases shall incorporate terms and conditions that ensure conformance with subpart 4180 of this part.”
 
{§4160.3(b)} states that “Upon the timely filing of a protest, the authorized officer shall reconsider her/his proposed decision in light of the protestant’s statement of reasons for protest and in light of other information pertinent to the case. At the conclusion to her/his review of the protest, the authorized officer shall serve her/his final decision on the protestant, or her/his agent, or both, and the interested public.
 
{§4180.1} states in part that “(a) Watersheds are in, or are making significant progress toward, properly functioning condition, including their upland, riparian-wetland, and aquatic components; soil and plant conditions support infiltration, soil moisture storage, and the release of water that are in balance with climate and landform and maintain or improve water quality, water quantity, and timing and duration of flow.” “(b) Ecological processes, including the hydrologic cycle, nutrient cycle, and energy flow, are maintained, or there is significant progress toward their attainment, in order to support healthy biotic populations and communities.” “(c) Water quality complies with State water quality standards and achieves, or is making significant progress toward achieving, established BLM management objectives such as meeting wildlife needs.” “(d) Habitats are, or are making significant progress toward being restored or maintained for Federal threatened and endangered species, Federal proposed or candidate threatened and endangered species, and other special status species.”
 
RIGHT OF PROTEST AND/OR APPEAL
In accordance with 43 CFR 4.470, 4160.3 (c) and 4160.4, any person whose interest is adversely affected by a final decision of the authorized officer may appeal the decision for the purpose of a hearing before an administrative law judge. The appeal must be filed within 30 days after the date the proposed decision becomes final or 30 days after receipt of the final decision. In accordance with 43 CFR 4.470, the appeal shall state clearly and concisely the reason(s) why the appellant thinks the final decision of the authorized officer is wrong.
 
Pursuant to 43 CFR 4.471 and 4160.3(c), an appellant also may petition for a stay of the final decision pending appeal by filing a petition for stay along with the appeal within 30 days after the date the proposed decision becomes final or 30 days after receipt of the final decision.
The appeal and any petition for stay must be filed at the office of the authorized officer, Authorized Officer, Outback District Office, P.O. Box xxxx, Outback, NV xxxxx. At this time, the BLM will not accept protests or appeals sent by electronic mail. Within 15 days of filing the appeal and any petition for stay, the appellant also must serve a copy of the appeal, and any petition for stay, on any person named in the decision and listed at the end of the decision, and on the Office of the Solicitor, Regional Solicitor, P.O. Box xxxx, Reno, Nevada xxxxx.
 
Pursuant to 43 CFR 4.471(c), a petition for stay, if filed, must show sufficient justification based on the following standards:
(1) The relative harm to the parties if the stay is granted or denied;
(2) The likelihood of the appellant’s success on the merits;
(3) The likelihood of immediate and irreparable harm if the stay is not granted; and,
(4) Whether the public interest favors granting the stay.
 
43 CFR 4.471(d) provides that the appellant requesting a stay bears the burden of proof to demonstrate that a stay should be granted.
 
Any person named in the decision from which an appeal is taken (other than the appellant) who wishes to file a response to the petition for a stay may file with the Hearings Division in Salt Lake City, Utah, a motion to intervene in the appeal, together with the response, within 10 days after receiving the petition. Within 15 days after filing the motion to intervene and response, the person must serve copies on the appellant, the Office of the Solicitor and any other person named in the decision (43 CFR 4,472(b)).
 
At the conclusion of any document that a party must serve, the party or it's representative must sign a written statement certifying that service has been or will be made in accordance with the applicable rules and specifying the date and manner of such service (43 CFR 4.422(c)(2)).
 
 
 
___________________________________                                      ___________________
Authorized Officer                                                                             Date
Outback District Office
 
 
Enclosures:
cc (by certified mail):
(As applicable ....)
Affected Applicants, permittee(s) and lessee(s)
Agent(s) of record
Lienholder(s) of record
Interested public (specific to allotments for which they have been granted interested public status)