May 25, 2016
Ms. Leah Baker
Acting Branch Chief, Planning and NEPA
Bureau of Land Management
U.S. Department of the Interior
1849 C Street N.W., Room 2134 LM
Washington, DC 20240
Dear Ms. Baker:
The Western Governors’ Association (WGA) appreciates the opportunity to comment on the Bureau of Land Management’s (BLM) proposed rule, Resource Management Planning (81 FR 9673, February 25, 2016) (Proposal).
STATEMENT OF INTEREST
WGA represents the Governors of 19 western states and three U.S.-flag islands. The Association is an instrument of the Governors for bipartisan policy development, information exchange and collective action on issues of critical importance to the western United States.
Western Governors have shared responsibility for managing land (WGA Policy Resolution 2014-09) within state borders. Western Governors support early, meaningful and substantial state involvement in the development, prioritization and implementation of federal environmental statutes, policies, rules, programs, reviews, budget proposals, budget processes and strategic planning. Western Governors sent a letter and questions to the BLM on November 14, 2014, requesting additional information and clarification on BLM’s Planning 2.0 Initiative.
The BLM has proposed changes in an attempt to clarify existing language, address landscape-scale issues, and more effectively involve the public and other governmental entities. This attempt at clarity has failed – the Proposal creates more confusion than clarity and reduces transparency.
SPECIFIC CONCERNS OF WESTERN STATES
- The Western Governors’ Association is concerned about a landscape-level approach to land and resource management and the Planning 2.0 Initiative presents challenges. WGA believes BLM Resource Management Plans (RMPs) should be developed and amended in coordination with Governors in those states where public land is situated.
- BLM has used the terms “responsible official” and “deciding official” in the Proposal, but has not clarified which BLM representatives will fill these roles or identified their specific responsibilities.
- BLM has not described the process for the “responsible official” and “deciding official” to interact if multiple officials are involved; for instance, if planning areas extend beyond field office boundaries or state boundaries.
- The Proposal does not clarify how multiple Governors’ consistency reviews will be conducted. This is particularly concerning with regard to threatened or endangered species that have vast western ranges encompassing multiple BLM planning areas. Additionally, different states may have different regulations and/or policies to be addressed through the Governors’ consistency review.
- Several western states are home to conservation districts and counties with plans in place for the various resources they manage. The Proposal does not state how these plans will be considered and incorporated in RMPs or a Governor’s consistency review.
UNDERLYING PROCESS CONCERNS OF WESTERN GOVERNORS
WGA Policy Resolution 2014-09 addresses federal agency consultation and states that federal agencies should consult with states in a meaningful way and on a timely basis through predicate involvement, pre-publication/federal decision making, post-publication/prefinalization and rule/policy implementation.
Western Governors appreciate the September 30, 2014, BLM status briefing for WGA’s Staff Advisory Council and Secretary Jewell’s February 20, 2015 response to the November 14, 2014 letter and related questions. However, a central element of Western Governors’ position is that federal/state consultation should be substantive, take place on an early – and ongoing – basis and involve both Governors and state regulators. (1)
BLM noted in the Proposal that it had consulted with WGA during rule development. The preliminary communications referenced above, however, constitute the last interactions between BLM/DOI and WGA regarding the Planning 2.0 Initiative. These communications do not constitute consultation as described in WGA Policy Resolution 2014-09. Several concerns remain with regard to the Proposal, some of which may have been avoided or addressed by BLM’s substantive consultation with western states prior to publication. These concerns are outlined below.
The Proposal also states BLM will revise the agency’s Land Use Planning Handbook (H-1601-1) as part of Planning 2.0. Western states request BLM consult with Governors and state regulators in the manner contemplated above before release of the revised BLM Land Use Planning Handbook.
Table 1 in section 1610.2 of the Proposal shows that BLM proposes to shorten public comment periods in two steps of the RMP construction and review process. Any process that reduces BLM’s responsibility to actively inform the public of its actions represents a retreat from openness and transparency. Western states are most concerned that:
- BLM proposes to shorten the mandatory public comment periods for a draft RMP and draft environmental impact statement (EIS) incident to RMP development from 90 days to 60 days; and (2)
- When requesting comments on an EIS-level amendment, BLM proposes a new 45 day minimum for comment, a reduction from the current 90-day minimum. (3)
RMPs are lengthy documents and contain nuanced information that is resource-specific and necessitates a detailed review. These plans are utilized by BLM for up to several decades or longer. Such foundational documents deserve significant consultation with Governors and state regulators before they are released for public comment. The level of pre-planning consultations in the Proposal lack important detail and are not a replacement for adequate evaluation of proposed RMPs.
Reduced timelines in the Proposal will increase burdens on states, local governments and the public, some of which struggle to provide meaningful input on complex RMP and EIS-level documents within the current 90-day public comment periods. Reductions in review time will reduce valuable stakeholder input. Significant changes may occur between drafts of RMPs and supporting documents, as well as between draft and finalization of these documents. BLM should retain the existing minimum public comment period timeframes to allow states and the public to fully understand and provide feedback on these foundational land management decisions.
Changes to BLM Communication Protocol
BLM proposes to remove requirements that several RMP planning actions be published in the Federal Register. These actions would be published on the BLM website and at BLM offices within the planning area for an RMP, and stakeholders could elect to receive notices of action directly from the BLM. (4) Governors are concerned with this proposed shift in BLM policy. Given the breadth of BLM lands in the West, this change would be significant for constituents and states.
Similarly, BLM proposes to eliminate the current requirement to publish a Federal Register notice at the start of every planning effort and to remove the current requirement that BLM publish a Notice of Intent (NOI) to prepare an environmental assessment as part of an RMP amendment. (5)
When BLM undertakes new or amended land management planning processes, such as construction of RMPs, Governors and state regulators typically engage through the only process available to them – the public participation process. Accordingly, Governors have a substantial interest in any changes BLM may make to its public participation procedures.
The additional means of communication contemplated in the Proposal have value and could be utilized by BLM. They do not serve as an adequate substitute for publication of notices at each point of public comment opportunity.
Governor’s Consistency Review
The Proposal states that BLM RMPs must be consistent with officially approved or adopted land use plans of other federal agencies, state governments, local governments, and tribal governments “to the maximum extent BLM finds practical and consistent with the purposes of the Federal Land Policy & Management Act.” (6) Proposed changes to section 1610.3-2(b)(1) provide a Governor of a state within the planning area only 60 days to submit a written record of inconsistencies between a draft RMP and the adopted policy of that state and recommendations to remedy inconsistencies. Additional time should be provided at this stage, particularly given BLM’s proposed shift to landscape-scale resource management. Proposed changes to section 1610.3-2(a) narrow Governor’s Consistency Reviews by removing the words “policies, programs, and processes” from the definition of officially approved and adopted land use plans. This change could exclude the consideration of various kinds of state endorsed land use plans (e.g.: State Wildlife Action Plans), as well as multi-state agreements. Any change to the definition of land use plan should provide reassurance that BLM does not intend to interpret “land use plans” overly narrowly.
BLM would be required to take into account only the inconsistencies raised by Governors and would not be required to take into account comments from a Governor on other aspects of an RMP document at this stage. This limits Governors’ participation in RMP review and is especially problematic for states engaged in management of threatened or endangered species with vast ranges spanning multiple BLM planning areas. Governors have primary decision-making authority for management of state resources and therefore must be afforded an opportunity to raise any concerns that arise, not only those concerns that result from federal/state plan inconsistencies.
The Proposal also states BLM may consider whether to adjust the timeline or appeal process for the Governor’s consistency review. It would not be appropriate to shorten the timeline or appeals process for Governors’ consistency reviews.
BLM proposes to establish a new Planning Assessment step in the RMP development process to, “combine and revise existing steps for inventory data and information collection and the analysis of the management situation.” (7) The new Planning Assessment step would take place during the scoping process, before BLM commences action (i.e., development or amendment) on an RMP. State data and information would benefit the development of these assessments.
Western Governors request additional information on the process to collect this data and information, the process for substantive involvement, and how this data and information would be publicly cited. This information would allow Governors to assess the consistency and transparency of this step in RMP decision making.
Finally, please ensure that the standard for consistency in the Planning 2.0 rule matches the requirement of FLPMA at § 1712(c)(9): “Land use plans of the Secretary under this section shall be consistent with State and local plans to the maximum extent [the Secretary] finds consistent with Federal law and the purposes of this Act.” FLPMA does not permit BLM to limit the consistency requirement merely because the agency thinks consistency would be impractical. The proposed § 1610.3-2(a) and other similar language should be changed to eliminate the phrase “to the maximum extent the BLM finds practical.”
Western Governors do not believe the Proposal presents positive changes in preparation, revision or amendment of land use plans. The BLM did not accomplish its goal and did not provide clarity. Meaningful consultation with Western Governors could remedy the problems with the Governor’s Consistency Review process, cooperating agency engagement, and public engagement. Western Governors request additional information on specific concerns listed above. Western Governors are concerned by a lack of ongoing consultation by BLM prior to rule publication, as well as by provisions in the Proposal that would: restrict public comment timelines; change public notice from the Federal Register; and restrict the Governor’s consistency review process. Western Governors request early and ongoing consultation with Governors and state regulators as BLM revises the Land Use Planning Handbook. Western Governors also request additional information on the proposed Planning Assessment phase, including state engagement, how state data and information will be used, and public citation of information on state data.
Matthew H. Mead
Governor of Wyoming
Governor of Montana
Vice Chair, WGA
cc: Neil Kornze, Director, U.S. Bureau of Land Management
(1) See § B(4)(b) of WGA Policy Resolution 2014-09.
(2) See § 1610.2 (page 9695) of the Proposal.
(4) See section 1610.2-1 (page 9696) of the Proposal.
(6) See section 1610.3-2(a) (page 9703) of the Proposal.
(7) See Section 1610.4 (page 9705) of the Proposal.