[Federal Register Volume 89, Number 91 (Thursday, May 9, 2024)]
[Rules and Regulations]
[Pages 40308-40349]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-08821]



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Vol. 89

Thursday,

No. 91

May 9, 2024

Part VI





Department of the Interior





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Bureau of Land Management





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43 CFR Parts 1600 and 6100





Conservation and Landscape Health; Final Rule

  Federal Register / Vol. 89, No. 91 / Thursday, May 9, 2024 / Rules 
and Regulations  

[[Page 40308]]


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DEPARTMENT OF THE INTERIOR

Bureau of Land Management

43 CFR Parts 1600 and 6100

[BLM_HQ_FRN_MO450017935]
RIN 1004-AE92


Conservation and Landscape Health

AGENCY: Bureau of Land Management, Interior.

ACTION: Final rule.

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SUMMARY: The Bureau of Land Management (BLM) promulgates this final 
rule, pursuant to the Federal Land Policy and Management Act of 1976 
(FLPMA), as amended, and other relevant authorities, to advance the 
BLM's multiple use and sustained yield mission by prioritizing the 
health and resilience of ecosystems across public lands. To support 
ecosystem health and resilience, the rule provides that the BLM will 
protect intact landscapes, restore degraded habitat, and make informed 
management decisions based on science and data. To support these 
activities, the rule applies land health standards to all BLM-managed 
public lands and uses, codifies conservation tools to be used within 
FLPMA's multiple-use framework, and revises existing regulations to 
better meet FLPMA's requirement that the BLM prioritize designating and 
protecting areas of critical environmental concern (ACECs). The rule 
also provides an overarching framework for multiple BLM programs to 
facilitate ecosystem resilience on public lands.

DATES: The final rule is effective on June 10, 2024.

FOR FURTHER INFORMATION CONTACT: Patricia Johnston, Project Manager for 
the Conservation and Landscape Health Rule, at 541-600-9693, for 
information relating to the substance of the final rule. Individuals in 
the United States who are deaf, deafblind, or hard of hearing, or who 
have a speech disability, may dial 711 (TTY, TDD, or TeleBraille) to 
access telecommunications relay services. Individuals outside the 
United States should use the relay services offered within their 
country to make international calls to the point-of-contact in the 
United States.

SUPPLEMENTARY INFORMATION:
I. Executive Summary
II. Background
III. Section-by-Section Discussion of the Final Rule and Revisions 
From the Proposed Rule
IV. Response to Public Comments
V. Procedural Matters

I. Executive Summary

    Under FLPMA, the principles of multiple use and sustained yield 
govern the BLM's stewardship of public lands, unless otherwise provided 
by law. The BLM's ability to manage for multiple use and sustained 
yield of public lands depends on the resilience of ecosystems across 
those lands--that is, the ability of the ecosystems to withstand 
disturbance. Ecosystems that collapse due to disturbance cannot deliver 
ecosystem services, such as clean air and water, food and fiber, 
wildlife habitat, natural carbon storage, and more. Establishing and 
safeguarding resilient ecosystems has become imperative as the public 
lands experience adverse impacts from climate change and as the BLM 
works to ensure public lands and ecosystem services benefit human 
communities. The Conservation and Landscape Health Rule establishes the 
policy for the BLM to build and maintain the resilience of ecosystems 
on public lands in three primary ways: (1) protecting the most intact, 
functioning landscapes; \1\ (2) restoring degraded habitat and 
ecosystems; and (3) using science and data as the foundation for 
management decisions across all plans and programs.
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    \1\ This rule defines ``intact landscape'' to mean ``a 
relatively unfragmented landscape free of local conditions that 
could permanently or significantly disrupt, impair, or degrade the 
landscape's composition, structure, or function. Intact landscapes 
are large enough to maintain native biological diversity, including 
viable populations of wide-ranging species. Intact landscapes 
provide critical ecosystem services and are resilient to disturbance 
and environmental change and thus may be prioritized for 
conservation action. For example, an intact landscape would have 
minimal fragmentation from roads, fences, and dams; low densities of 
agricultural, urban, and industrial development; and minimal 
pollution levels.''
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    The rule establishes a definition of ``conservation'' that 
encompasses both protection and restoration actions,\2\ recognizing 
that the BLM must protect intact natural landscapes and restore 
degraded landscapes to achieve ecosystem resilience. To support efforts 
to protect and restore public lands, the rule clarifies that 
conservation is a use on par with other uses of the public lands under 
FLPMA's multiple-use and sustained-yield mandate. Recognizing that 
public land conservation is incompatible with a ``one size fits all'' 
approach, the rule identifies multiple conservation tools to be used 
where appropriate, including protection of intact landscapes, 
restoration and mitigation planning, and ACEC designation. Consistent 
with how the BLM promotes and administers other uses, the rule 
establishes a durable mechanism--mitigation and restoration leasing--to 
facilitate both mitigation and restoration on the public lands, while 
providing opportunities to engage the public in the management of 
public lands for this purpose. Achieving ecosystem resilience will 
require, to some extent, the protection of intact landscapes. The goal 
of the rule is to provide a decision support and prioritization 
framework for the BLM as it seeks to identify where such protection is 
appropriate. The rule does not prioritize conservation above other 
uses; instead, it provides for considering and, where appropriate, 
implementing or authorizing conservation as one of the many uses 
managed under FLPMA, consistent with the statute's plain language.
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    \2\ In this rule, conservation is a use; protection and 
restoration are tools to achieve conservation. Protection is not 
synonymous with preservation; rather, it allows for active 
management or other uses consistent with multiple use and sustained 
yield principles.
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    The final rule also clarifies throughout that its provisions should 
be implemented in a manner that supports land use planning decisions 
and objectives that emphasize specific uses in specific areas. The 
Desert Renewable Energy Conservation Plan, for example, identifies 
Development Focus Areas and conservation areas, as well as conservation 
and management actions to mitigate the effects of renewable energy 
development. The 2015 Greater Sage-grouse Plans provide more 
protections for the most valuable Priority Habitat Management Areas 
while permitting more activities and related impacts in General Habitat 
Management Areas. The West-wide Energy Corridors designated by the BLM 
are identified as areas that are suitable for large transmission lines 
or pipelines, subject to site-specific analysis of proposed projects 
and required conditions to avoid or minimize adverse impacts. This 
preamble and the rule text raise as an example throughout areas that 
are managed for recreation or degraded lands prioritized for 
development. The use of this example is not meant to imply that the 
Bureau permits development only on degraded land.
    This final rule does not alter the manner in which the BLM makes or 
implements these types of land use planning decisions and recognizes 
how managing for ecosystem resilience across a landscape can 
incorporate conservation and development, as well as other uses. This 
recognition is reflected in the rule's approach to identifying and 
managing areas for landscape intactness, prioritizing areas for 
restoration, and evaluating land health to inform decision-making.

[[Page 40309]]

    The BLM's efforts to protect and restore landscapes and ecosystems 
and make informed planning, permitting, and program decisions rest on 
the agency's ability to assess land health conditions and consider 
those conditions when making decisions. The rule therefore modifies 
existing BLM practice by applying the fundamentals of land health and 
related standards and guidelines to all BLM-managed public lands and 
uses, not just grazing (see Sec.  6103.1(a)). This broad application 
includes uses, such as oil and gas development and renewable energy 
generation, that are likely to result in at least local impacts to land 
health. This rule requires the BLM to take ``appropriate action'' where 
a specific land use is a factor in failing to achieve land health, but 
what constitutes ``appropriate action'' may be constrained in a given 
case both by law and the applicable resource management plan (RMP). For 
example, where lands are available for solar development under the RMP, 
options for taking ``appropriate action'' to address land health would 
not include prohibiting solar development, but may include measures to 
avoid, minimize, or compensate for impacts from solar development. In 
general, assessments of land health are intended to inform how uses are 
managed, rather than if they occur, by providing accurate data on 
current conditions. In implementing the fundamentals of land health, 
the rule codifies the need across BLM programs to use high-quality 
information to prepare land health assessments and evaluations and make 
determinations about land health condition.
    The rule reiterates the importance of meaningful consultation 
during decision-making processes with Tribes and Alaska Native 
Corporations on issues that affect their interests, as determined by 
the Tribes. It requires the BLM to respect and incorporate Indigenous 
Knowledge into management decisions for ecosystem resilience and 
directs the BLM to seek opportunities for Tribal co-stewardship of 
intact landscapes and other lands and ecosystems, consistent with 
agency and departmental guidance.
    Finally, the rule amends the existing ACEC regulations to better 
assist the BLM in carrying out FLPMA's requirement to give priority to 
the designation and protection of ACECs. The regulatory changes 
elaborate on the role of ACECs as the principal administrative 
designation for protecting important natural, cultural, and scenic 
resources, and they establish a more comprehensive framework for the 
BLM to identify, evaluate, and consider special management attention 
for ACECs in land use planning. The rule emphasizes the role of ACECs 
in contributing to ecosystem resilience by clarifying that ACEC 
designation can be used to protect landscape intactness and habitat 
connectivity.

II. Background

A. The Need for Resilient Public Lands To Achieve Multiple Use and 
Sustained Yield

    The BLM manages approximately 245 million acres of public lands, 
roughly one-tenth of the land area of the United States. These lands 
have become increasingly degraded in recent decades through the 
appearance of invasive species, extreme wildfire events, prolonged 
drought, and increased habitat fragmentation.\3\ Degradation of the 
health of public lands threatens the BLM's ability to manage public 
lands as directed by FLPMA.
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    \3\ See, e.g., Long-Term Trends in Vegetation on Bureau of Land 
Management Rangelands in the Western United States (https://www.sciencedirect.com/science/article/pii/S1550742422001075); 
Greater Sage-grouse Plan Implementation: Range-wide Monitoring 
Report 2015-2020 (https://eplanning.blm.gov/public_projects/2016719/200502020/20050224/250056407/Greater%20Sage-Grouse%20Five-year%20Monitoring%20Report%202020.pdf).
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    FLPMA requires that unless ``public land has been dedicated to 
specific uses according to any other provisions of law,'' the 
Secretary, through the BLM, must ``manage the public lands under 
principles of multiple use and sustained yield, in accordance with the 
land use plans developed by [the Secretary] under section 202 of this 
Act when they are available'' (43 U.S.C. 1732(a)). The term ``sustained 
yield'' means ``the achievement and maintenance in perpetuity of a 
high-level annual or regular periodic output of the various renewable 
resources of the public lands consistent with multiple use'' (43 U.S.C. 
1702(h)).
    The term ``multiple use'' means ``the management of the public 
lands and their various resource values so that they are utilized in 
the combination that will best meet the present and future needs of the 
American people; making the most judicious use of the land for some or 
all of these resources or related services over areas large enough to 
provide sufficient latitude for periodic adjustments in use to conform 
to changing needs and conditions; the use of some land for less than 
all of the resources; a combination of balanced and diverse resource 
uses that takes into account the long-term needs of future generations 
for renewable and nonrenewable resources, including, but not limited 
to, recreation, range, timber, minerals, watershed, wildlife and fish, 
and natural scenic, scientific and historical values; and harmonious 
and coordinated management of the various resources without permanent 
impairment of the productivity of the land and the quality of the 
environment with consideration being given to the relative values of 
the resources and not necessarily to the combination of uses that will 
give the greatest economic return or the greatest unit output.'' (43 
U.S.C. 1702(c)).
    FLPMA also directs the BLM to ``take any action necessary to 
prevent unnecessary or undue degradation of the lands.'' (43 U.S.C. 
1732(b)). Additionally, section 102(a)(8) of FLPMA declares that it is 
the policy of the United States that ``the public lands be managed in a 
manner that will protect the quality of scientific, scenic, historical, 
ecological, environmental, air and atmospheric, water resource, and 
archeological values; that, where appropriate, will preserve and 
protect certain public lands in their natural condition; that will 
provide food and habitat for fish and wildlife and domestic animals; 
and that will provide for outdoor recreation and human occupancy and 
use'' (43 U.S.C. 1701(a)(8)). Many of these resources and values that 
FLPMA authorizes the BLM to safeguard emanate from functioning and 
productive native ecosystems that supply food, water, habitat, and 
other ecological necessities.
    Taken together, FLPMA's mandate to manage public lands for multiple 
use and sustained yield and its requirement to protect certain 
resources and values requires balanced management that maintains the 
availability of such resources and values for future generations. (See 
43 U.S.C. 1702(c)) Widespread degradation of land health significantly 
limits the ability of public lands and their ecosystems to provide such 
resources and values and is inconsistent with the management direction 
and responsibility conferred to the BLM through FLPMA. The general 
resilience of public lands will determine the BLM's ability to 
effectively manage for multiple use and sustained yield over the long 
term. Resilience is a critical ecosystem trait that allows ecosystems 
to maintain or regain their composition, structure, and function 
following disturbances, including those resulting from changing 
environmental conditions. For example, maintaining habitat connectivity 
allows organisms to adapt to a changing climate from the North Slope of 
Alaska to the Rio Grande Valley of Colorado and New Mexico. To ensure 
the resilience of public lands,

[[Page 40310]]

FLPMA provides the BLM with ample authority and direction to conserve 
ecosystems and other resources and values across the public lands.
    The BLM recognizes this need for public lands to continue to 
provide resources and values when declaring its mission ``to sustain 
the health, diversity, and productivity of public lands for the use and 
enjoyment of present and future generations.'' (blm.gov; see also 43 
U.S.C. 1702(c)) Without ensuring that public lands and their component 
ecosystems can maintain their function and be resilient to future 
change, the agency risks failing on its statutory mandate and its 
commitment to future generations.
    To assist the BLM in carrying out its mission and statutory 
mandate, this rule provides direction and tools to protect and restore 
landscapes and ecosystems and make decisions supported by science and 
data, assisting the agency in managing for resilient landscapes that 
support multiple uses and sustained yield of resources and preventing 
unnecessary or undue degradation of the lands and their resources. As 
intact landscapes play a central role in maintaining the resilience of 
an ecosystem, the rule emphasizes protecting those public lands with 
intact, functioning landscapes and restoring others. This rule is 
designed to support sustained yield such that the nation's public lands 
can continue to supply food, water, habitat, and other ecological 
necessities that can resist and recover from drought, wildfire, and 
other disturbances, and continue to provide energy, forage, timber, 
recreational opportunities, and safe and reliable access to minerals.

B. Conservation Use for Resilient Public Lands

    Conservation is a key strategy for supporting resilient public 
lands, now and into the future. Conservation takes many forms on public 
lands, including in the ways grazing, recreation, forestry, wildlife 
and fisheries management, and many other uses are carried out. 
Conservation is both a land use and also an investment in the landscape 
intended to increase the yield of certain other benefits elsewhere or 
later in time. This rule focuses on conservation as a land use within 
the multiple use framework, including in decision-making, 
authorization, and planning processes. The rule develops the toolbox 
for conservation use--defined here as encompassing both protection and 
restoration actions--enabling some of the many conservation strategies 
the agency employs to steward the public lands for multiple use and 
sustained yield.
    FLPMA has always encompassed conservation as a land use. As 
described above, FLPMA authorizes and obligates the BLM to, within the 
multiple use framework, protect natural resources, preserve public 
lands, and provide habitat for fish and wildlife, among other 
conservation measures. The BLM has been practicing conservation of the 
public lands throughout the agency's history. The change this rule aims 
to achieve is providing clear, consistent, and informed direction, 
vetted and shaped by public input, for conservation use to be 
implemented on the public lands in support of ecosystem resilience.
    The rule does not prioritize conservation above other multiple 
uses. It also does not preclude other uses where conservation use is 
occurring. Many uses are compatible with different types of 
conservation use, such as sustainable recreation, grazing, and habitat 
management. The rule also does not enable conservation use to occur in 
places where an existing, authorized, and incompatible use is 
occurring.
    One of the primary tools for conservation use that is established 
in this rule is restoration and mitigation leasing (called conservation 
leasing in the proposed rule). Restoration or mitigation leases can 
help facilitate dynamic landscape management over time by allowing an 
area to recover and be available for other uses after the termination 
of the lease. For example, a restoration lessee may collaborate with an 
existing grazing permittee to restore degraded rangeland with the 
ultimate goal of resuming sustainable grazing. These leases are not the 
only way to conduct restoration and mitigation on the public lands; 
these types of conservation activities occur in many ways. The leases 
provide a clear and consistent tool for those actions when appropriate 
and useful. Like all conservation uses included in the rule, 
restoration and mitigation leases will not be used where existing 
rights and authorized uses are in place that would conflict with the 
conservation use.
    The BLM has, over the years, developed and revised regulations for 
many multiple uses, whereas a placeholder has remained in Title 43 of 
the CFR for the agency to develop regulations broadly pertaining to 
conservation. With this rule, the BLM provides necessary regulations 
for using conservation to support ecosystem resilience and landscape 
health.

C. Management Decisions To Build Resilient Public Lands

    The rule recognizes that the BLM has three primary ways of applying 
conservation actions to manage for resilient public lands that inform 
one another and potentially overlap: (1) protection of intact, 
functioning landscapes; (2) restoration of degraded habitats and 
ecosystems; and (3) making decisions informed by appropriate 
conservation considerations identified through the development and 
execution of plans, programs, and permits. The organization of the rule 
text emanates from this structure, with principal sections on (1) 
protection of landscape intactness and guidance on the identification 
and designation of ACECs; (2) direction to plan for and restore 
degraded habitats; and (3) instruction for management actions to 
facilitate conservation, including application of mitigation, all based 
on the use of high-quality information and adherence to land health 
standards for all BLM programs.
1. Protection
    As intact landscapes play a central role in maintaining the 
resilience of ecosystems, the rule provides direction for the 
protection of intact, functioning landscapes. The final rule directs 
the BLM to maintain an inventory of landscape intactness as a resource 
value and identify intact landscapes in land use plans and to protect 
the intactness of certain landscapes by, for example, implementing 
conservation actions that maintain ecosystem resilience and conserving 
landscape intactness when managing compatible uses. Inventories of 
landscape intactness focus on an estimate of naturalness measured 
against human-caused disturbance and influence. The BLM intends to 
assess intactness through use of watershed condition assessments 
consistent with peer-reviewed methods developed jointly with the U.S. 
Geological Survey.\4\ One of the principal administrative tools the BLM 
has available to protect public land resources is the designation of 
ACECs. ACECs are areas where special management attention is needed to 
protect important historical, cultural, and scenic values or fish and 
wildlife or other natural resources; ACECs can also be designated to 
protect human life and safety from natural hazards. The rule clarifies 
and expands existing ACEC regulations to better support the BLM in 
carrying out FLPMA's direction to give

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priority to the designation and protection of these important areas.
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    \4\ See, for instance, this collaborative effort between the BLM 
and the USGS: A Multiscale Index of Landscape Intactness for the 
Western U.S. [verbar] U.S. Geological Survey (usgs.gov).
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    Pursuant to Executive Order 14072, Strengthening the Nation's 
Forests, Communities, and Local Economies, 87 FR 24851 (Apr. 22, 2022), 
and consistent with managing for multiple use and sustained yield and 
other applicable law, the BLM is working to ensure that forests and 
woodlands on public lands, including old and mature forests and 
woodlands, are managed to: promote their continued health and 
resilience, retain and enhance carbon storage, recruit old-growth 
forests and characteristics, conserve biodiversity, mitigate the risk 
of wildfires, enhance climate resilience, enable subsistence and 
cultural uses, provide outdoor recreation opportunities, and promote 
sustainable local economic development. Older forests and woodlands, 
including pinyon and juniper woodlands, which are the BLM's most 
abundant old forest type, have characteristics that contribute to 
ecosystem resilience and further the objectives of this rule. The 
characteristics include providing important wildlife habitat, 
maintaining intact landscapes, contributing ecosystem services, and 
harboring significant social and cultural values for human communities. 
As such, these resources will be considered and evaluated for 
protection and expansion under multiple provisions of the rule.
2. Restoration
    To promote consistency in its application, the final rule 
establishes principles for the design and implementation of BLM 
restoration actions on public lands. To direct restoration efforts, the 
rule also requires that resource management plans identify restoration 
outcomes and that the BLM identify priority landscapes for restoration, 
develop restoration plans, and track implementation of restoration 
actions.
    The rule offers new tools in the form of restoration leases and 
mitigation leases that allow qualified entities to directly support 
efforts to build and maintain resilient public lands. These leases will 
be available to entities seeking to restore public lands or mitigate 
reasonably foreseeable impacts from an authorized activity. Leases will 
not override valid existing rights or preclude other, subsequent 
authorizations so long as those authorizations are compatible with the 
restoration or mitigation use. The rule establishes the process for 
applying for and granting leases, terminating or suspending them, 
determining noncompliance, and setting bonding obligations. The rule 
expresses a preference for lease applications that are derived from 
collaboration with existing permittees, lease holders, or adjacent land 
managers or owners, or that include other specific factors enumerated 
in 6102.4(d) that will make lease issuance more likely. Restoration and 
mitigation leases will be issued for a term consistent with the time 
required to achieve their objectives. Restoration leases will be issued 
for a maximum of 10 years but can be renewed if necessary to serve the 
purposes for which the lease was first issued. Once these purposes have 
been achieved, the lease will not warrant renewal. Any mitigation lease 
will require a term commensurate with the impact(s) it is offsetting. 
Restoration and mitigation leases may also provide opportunities for 
co-stewardship with federally recognized Tribes.
3. Management Actions for Decision-Making
    The final rule delineates how its goals can be achieved when 
implementing programs, establishing land use plans, and authorizing 
use. In doing so, the rule requires the BLM to use high-quality 
information, including Indigenous Knowledge. To ensure the BLM does not 
limit its ability to build resilient public lands when authorizing use, 
the rule requires the BLM to apply a mitigation hierarchy (i.e., take 
actions to avoid, minimize, and compensate for certain residual 
impacts, generally in that order). (See Sec.  6102.5.1(a)).\5\ For 
important, scarce, or sensitive resources, the BLM must apply the 
mitigation hierarchy with particular care, with the goal of 
eliminating, reducing, and/or offsetting impact on the resource. The 
rule also establishes regulations to govern the BLM's approval of a 
third-party mitigation fund holder.
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    \5\ The BLM's final rule adopts the definition of ``mitigation'' 
used by the Council on Environmental Quality's regulations 
implementing the procedural requirements of NEPA, 40 CFR 1508.1(s), 
including for compensatory mitigation: ``Compensating for the effect 
by replacing or providing substitute resources or environments.'' 
Id. Sec.  1508.1(s)(5). This definition also aligns with existing 
BLM policy, including its Mitigation Manual Section, MS-1794, and 
its Mitigation Handbook, H-1794-1.
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    The final rule highlights the importance of environmental justice 
in decision-making, including advancing environmental justice through 
restoration and mitigation actions as one of the rule's objectives. The 
BLM is implementing Executive Order 14008 on Tackling the Climate 
Crisis at Home and Abroad, 86 FR 7619 (Jan. 27, 2021) and Executive 
Order 14096 on Revitalizing Our Nation's Commitment to Environmental 
Justice for All, 88 FR 25251 (Apr. 26, 2023), which establish 
environmental justice initiatives and policy goals.\6\ The BLM issued 
guidance in September 2022 clarifying minimum requirements for 
incorporating environmental justice considerations in environmental 
reviews (Instruction Memorandum 2022-059, ``Environmental Justice 
Implementation''). This rule builds on the agency's current commitments 
and direction by highlighting opportunities to address impacts to 
disadvantaged communities that are marginalized by underinvestment and 
overburdened by pollution and to advance environmental justice. In 
planning for and prioritizing landscapes for restoration, the rule 
requires consideration of where restoration can address impacts on 
communities' environmental justice concerns, as well as other social 
and economic benefits. Environmental justice considerations are also 
identified as a factor in evaluating proposals for restoration and 
mitigation lease applications.
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    \6\ These efforts build on prior Executive Orders, such as 
Executive Order 12898 on Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations, 59 FR 
7629 (Feb. 11, 1994).
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    To support conservation actions and decision-making, the rule 
extends the application of the fundamentals of land health (taken 
verbatim from the existing fundamentals of rangeland health at 43 CFR 
4180.1 (2005)) and related standards and guidelines to all lands 
managed by the BLM and across all program areas. The fundamentals are 
general descriptions of conditions that maintain the health and 
functionality of watersheds, ecological processes, water quality, and 
threatened, endangered, and special-status species habitat. The 
standards measure the level of physical and biological conditions 
required for healthy lands and sustainable uses of public lands, 
essentially identifying trends toward achieving or not achieving 
desired conditions. Assessment and evaluation of the standards informs 
decision-making at all levels of the BLM, including decisions made in 
resource management plans. However, it is the evaluation of multiple 
lines of evidence to conclude whether or not each land health standard 
is being achieved that is most relevant to a decision maker. Multiple 
lines of evidence that may be used to evaluate land health include, but 
are not limited to, standardized quantitative monitoring data, remote 
sensing-derived maps and data, qualitative assessments, photos, water 
quality data, habitat assessments, disturbance and land use

[[Page 40312]]

history, and weather and climate data relevant to each land health 
standard. Determining if a standard is being achieved, or not achieved, 
can inform how a land use may be modified or adapted to improve land 
health conditions consistent with the fundamentals. The rule does not 
require, however, that individual actions ``comply'' with the 
fundamentals of land health, nor does it require achievement of those 
fundamentals (as measured by the land health standards) as a 
precondition for any BLM decision.
    Currently, the fundamentals of land health and related standards 
apply only to rangeland systems where the BLM authorizes grazing.\7\ 
Existing land health standards vary across regions and states creating 
a complex, but locally adapted system of rangeland evaluation. The rule 
includes a process for developing and adopting consistent national land 
health standards and amending or supplementing them to apply them more 
effectively to habitats managed by the BLM other than rangelands (e.g., 
forests, deserts, shrublands, wetlands). Until the BLM has developed a 
consistent set of national standards, existing standards and indicators 
will be applied according to the process described within this rule. 
However, broadening the applicability of existing land health standards 
ensures the BLM will more formally and consistently consider the 
condition of public lands in decision-making. The rule includes 
instruction, largely consistent with the existing framework at 43 CFR 
4180.1, on how the BLM must assess, evaluate, and determine if public 
lands are meeting land health standards. At a critical moment in the 
health and history of our public lands, the rule directs the BLM to 
perform such assessments and evaluations at broad spatial and temporal 
scales, thereby creating efficiencies in the land health process and 
opportunities to streamline permit renewals and authorizations.
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    \7\ The BLM currently maintains inventory, assessment and 
monitoring data from its implementation of the grazing regulations 
related to rangeland health through the agency's Assessment, 
Inventory, and Monitoring (AIM) program, and makes this data 
available to the public. https://www.blm.gov/aim.
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D. Tribal Engagement and Co-Stewardship

    The final rule reflects the U.S. Government's special relationship 
with Indian Tribes by incorporating updated requirements for 
government-to-government consultation, provisions for respecting 
Indigenous Knowledge, and direction to seek opportunities for Tribal 
co-stewardship.
    The BLM is committed to working with Tribes in the management of 
the public lands, which are the ancestral homelands of many American 
Indian and Alaska Native Tribes. The BLM is the country's largest land 
manager, and it is vital that the BLM respect the nation-to-nation 
relationship that exists with American Indian and Alaska Native Tribes 
while incorporating co-stewardship where possible. Engaging with Tribes 
through co-stewardship opportunities is a priority for the BLM as 
identified in: Joint Secretarial Order 3403 on Fulfilling the Trust 
Responsibility to Indian Tribes in the Stewardship of Federal Lands and 
Waters (Nov. 15, 2021); BLM Permanent Instruction Memorandum No. 2022-
011, Co-Stewardship with Federally Recognized Indian and Alaska Native 
Tribes Pursuant to Secretary's Order 3403 (Sept. 13, 2022); and the 
Department of the Interior Departmental Manual Part 502, Collaborative 
and Cooperative Stewardship with Tribes and the Native Hawaiian 
Community.
    In response to comments and consultation on the proposed rule,\8\ 
the BLM made several updates to the final rule to better embrace its 
commitment to working with Tribes in managing the public lands for 
ecosystem resilience and landscape health. A stated objective of the 
final rule (43 CFR 6101.2(i)) is to: ``[i]mprove engagement and co-
stewardship of public lands with Tribal entities and promote the use of 
Indigenous Knowledge in decision-making.'' The final rule intends to 
achieve this objective through provisions for Tribal consultation, 
incorporation of Indigenous Knowledge, and co-stewardship.
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    \8\ Pueblo of Tesque Comments on Bureau of Land Management 
Conservation and Landscape Health Rule (July 5, 2023), ; Pyramid 
Lake Paiute Tribe, Public Comment Regarding the Proposed Public 
Lands Rule (June 27, 2023), https://www.regulations.gov/comment/BLM-2023-0001-153233; Northwest Arctic Native Association (NANA) 
Regional Corporation, Inc., Comments--Proposed Conservation and 
Landscape Health Rule (July 5, 2023), https://www.regulations.gov/comment/BLM-2023-0001-154147; Colorado River Indian Tribes, Comments 
on BLM Proposed Federal Land Policy and Management Act of 1979 
(FLPMA) Regulations on Conservation and Landscape Health (June 20, 
2023), https://www.regulations.gov/comment/BLM-2023-0001-120501; Ute 
Indian Tribe of the Uintah and Ouray Reservation, Comments on the 
Bureau of Land Management Proposed Rule on Conservation and 
Landscape Health (June 27, 2023), https://www.regulations.gov/comment/BLM-2023-0001-147694.
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    The final rule directs the BLM to meaningfully consult with Indian 
Tribes and Alaska Native Corporations on actions that are determined, 
after allowing for Tribal input, to potentially have a substantial 
effect on the Tribe or Corporation. In taking management actions for 
ecosystem resilience, and in recognition that Tribes can initiate 
consultation upon request, the final rule requires the BLM to 
meaningfully consult with Indian Tribes and Alaska Native Corporations 
during the decision-making process. These changes promote consistency 
with Departmental Manual guidance for consultation with Tribes.
    The rule includes guidance for respecting and considering 
Indigenous Knowledge and directs the BLM to identify opportunities for 
co-stewardship as an overarching objective and specifically when 
managing intact landscapes, planning restoration actions on public 
lands, and taking management actions for ecosystem resilience.
    The final rule also includes updated definitions for Indigenous 
Knowledge and high-quality information to reflect current guidance and 
to make clear that Indigenous Knowledge qualifies as high-quality 
information when it is gained by prior informed consent, free of 
coercion, and generally meets the standards for high-quality 
information.

E. Inventory, Evaluation, Designation, and Management of ACECs

    To implement FLPMA's direction to ``give priority to the 
designation and protection of areas of critical environmental 
concern,'' (43 U.S.C. 1712(c)(3)), the rule updates regulatory 
requirements found at 43 CFR 1610.7-2 and codifies policy instruction 
found in the BLM Manual that guides its treatment of ACECs. (https://www.ntc.blm.gov/krc/system/files?file=legacy/uploads/5657/5_1613_ACEC_Manual%201988.pdf) The BLM inventories, evaluates, and 
designates ACECs as part of the land use planning process. The land use 
planning process guides BLM resource management decisions in a manner 
that allows the BLM to respond to issues and consider trade-offs among 
environmental, social, and economic values in determining appropriate 
land uses for specific areas. Further, the planning process requires 
coordination, cooperation, and consultation and provides other 
opportunities for public involvement that can foster relationships, 
build trust, and result in durable decision-making.
    In 40 years of applying the procedures found at 43 CFR 1610.7-2 and 
in the ACEC Manual, the BLM has identified a need for several revisions 
that it has now made in this final rule. These revisions are needed to 
provide clear direction and comprehensive guidance encompassing all 
elements of the ACEC designation and management process.

[[Page 40313]]

Additionally, the final rule codifies the BLM's procedures for 
considering and designating potential ACECs, providing more cohesive 
direction and consistency than the previous procedures, which were 
described partially in regulation and partially in agency policy. The 
rule maintains the general process for inventorying, evaluating, 
designating, and managing ACECs, but makes specific changes to clarify 
and improve that process. The process is generally described here, with 
more detailed explanation in the ``Section-by-Section Discussion of the 
Final Rule and Revisions from the Proposed Rule'' and in the ``Response 
to Public Comments'' sections of this preamble to the final rule.
    In the initial stages of the land use planning process, the BLM, 
through inventories and external nominations, identifies any potential 
new ACECs to evaluate for relevance, importance, and the need for 
special management attention. The BLM determines whether such special 
management attention is needed by evaluating land use planning 
alternatives and considering additional issues related to the 
management of the proposed ACEC, including public comments received 
during the planning process. Special management measures may also 
provide an opportunity for Tribal co-stewardship. In approved resource 
management plans, the BLM identifies all designated ACECs and provides 
the management direction necessary to protect the relevant and 
important values for which the ACECs were designated.
    This rule establishes procedures that require the BLM to consider 
ecosystem resilience, landscape-level needs, and rapidly changing 
landscape conditions in designating and managing ACECs, and it 
establishes a management standard to ensure ACEC values are 
appropriately conserved. The rule also provides that the BLM may, at 
the agency's discretion, implement temporary management for potential 
ACECs identified outside of an ongoing planning process until the 
potential ACEC can be evaluated for designation through a land use 
planning process. When implementing temporary management, the BLM will 
comply with all applicable laws, including the National Environmental 
Policy Act (NEPA), notify the public of the temporary management, and 
periodically reevaluate its decision to provide for temporary 
management. These provisions do not change the presumption that the BLM 
generally addresses its management of areas that may be appropriate for 
an ACEC designation through the land use planning process. The final 
rule also codifies research natural areas as a type of ACEC designated 
for the primary purpose of research and education on public lands, 
consistent with existing regulations (43 CFR subpart 8223) and policy.
    The BLM intends to revise its ACEC manual to integrate the new and 
existing regulations into policy and provide more detailed guidance for 
their implementation. Guidance will help the BLM and the public better 
understand how the ACEC regulations are applied on a case-by-case 
basis.

F. Statutory Authority

    FLPMA establishes the BLM's mission to manage public lands ``under 
principles of multiple use and sustained yield'' (except for lands 
where another law directs otherwise). (43 U.S.C. 1732(a)) Multiple use 
is defined as:

the management of the public lands and their various resource values 
so that they are utilized in the combination that will best meet the 
present and future needs of the American people; making the most 
judicious use of the land for some or all of these resources or 
related services over areas large enough to provide sufficient 
latitude for periodic adjustments in use to conform to changing 
needs and conditions; the use of some land for less than all of the 
resources; a combination of balanced and diverse resource uses that 
takes into account the long- term needs of future generations for 
renewable and nonrenewable resources, including, but not limited to, 
recreation, range, timber, minerals, watershed, wildlife and fish, 
and natural scenic, scientific and historical values; and harmonious 
and coordinated management of the various resources without 
permanent impairment of the productivity of the land and the quality 
of the environment with consideration being given to the relative 
values of the resources and not necessarily to the combination of 
uses that will give the greatest economic return or the greatest 
unit output.

(43 U.S.C. 1702(c)). Sustained yield is defined as, ``the achievement 
and maintenance in perpetuity of a high-level annual or regular 
periodic output of the various renewable resources of the public lands 
consistent with multiple use.'' (43 U.S.C. 1702(h)).
    FLPMA also authorizes the Secretary to promulgate implementing 
regulations necessary ``to carry out the purposes'' of the Act. (43 
U.S.C. 1740) This rule, enacted under that authority, (1) defines and 
regulates conservation use on the public lands in service of FLPMA's 
multiple use and sustained yield mandates; (2) provides for third-party 
authorizations to use the public lands for restoration and mitigation 
under FLPMA section 302(b) (43 U.S.C. 1732(b)); and (3) revises the 
existing regulations implementing FLPMA's direction in sections 201(a) 
and 202(c)(3) (43 U.S.C. 1711(a) and 1712(c)(3)) that the BLM shall 
give priority to the designation and protection of ACECs. (See also 43 
U.S.C. 1701(a)(11) (``[I]t is the policy of the United States that--
regulations and plans for the protection of public land areas of 
critical environmental concern be promptly developed.'')).
    This rule clarifies that conservation is a use on par with other 
uses and responds to the direction inherent in FLPMA's multiple use and 
sustained yield mandate to manage public lands for resilience and 
future productivity and to mitigate resource impacts. A number of 
comments questioned the BLM's authority to treat ``conservation'' as a 
use within FLPMA's multiple use framework. As a general matter, the 
definition of ``multiple use'' makes clear, and courts have affirmed, 
that managing some lands for conservation use is a permissible, and 
indeed crucial, aspect of managing public lands under the principles of 
multiple use and sustained yield, as FLPMA requires. (See 43 U.S.C. 
1702(c); see also New Mexico ex rel. Richardson v. BLM, 565 F.3d 683, 
710 (10th Cir. 2009) (``It is past doubt that the principle of multiple 
use does not require BLM to prioritize development over other uses . . 
. BLM's obligation to manage for multiple use does not mean that 
development must be allowed . . . Development is a possible use, which 
BLM must weigh against other possible uses--including conservation to 
protect environmental values.''); Theodore Roosevelt Conservation 
P'ship v. Salazar, 616 F.3d 497, 518 (D.C. Cir. 2010) (``[T]he Bureau 
has wide discretion to determine how those [FLPMA] principles [of 
multiple use and sustained yield] should be applied.''); Or. Nat. 
Desert Ass'n v. BLM, 531 F.3d 1114, 1134 (9th Cir. 2008) (recognizing 
that the BLM's ``wide authority to manage the public lands under 
principles of multiple use and sustained yield allows it ample 
discretion for management of lands with wilderness values'')).
Public Comments on Statutory Authority
    Several comments suggested more specifically that the decision in 
Public Lands Council v. Babbitt, 167 F.3d 1287 (10th Cir. 1999), would 
prohibit the restoration and mitigation leases available under this 
rule.
    We disagree. In that case, the Tenth Circuit held that the Taylor 
Grazing Act and section 402 of FLPMA could not authorize ``issuing a 
`grazing permit' that excludes livestock grazing for the entire term of 
the permit.'' Id. at 1307.

[[Page 40314]]

The court, therefore, enjoined the regulations purporting to authorize 
Taylor Grazing Act permits that provided for no grazing. In doing so, 
the Tenth Circuit expressly stated that the question in the case was 
``not whether the Secretary possesses general authority to take 
conservation measures--which clearly he does.'' Id.
    The present rule, in contrast to the grazing rule at issue in 
Public Lands Council v. Babbitt, is an exercise of that authority to 
take conservation measures. It does not rely on the Taylor Grazing Act, 
nor does it modify the terms and conditions available for grazing 
permits or authorize the BLM to issue grazing permits approving non-
grazing uses. Rather, this rule provides for a separate category of 
leases, which can be exercised on public lands in areas with other 
ongoing uses, such as active grazing, consistent with the BLM's 
authority under FLPMA to ``manage the public lands under principles of 
multiple use and sustained yield'' (43 U.S.C. 1732(a)) and to 
``regulate, through easements, permits, leases, licenses, published 
rules, or other instruments as the Secretary deems appropriate, the 
use, occupancy, and development of the public lands.'' (43 U.S.C. 
1732(b)) The final rule renames what the proposed rule called 
``conservation leases'' as ``restoration leases'' and ``mitigation 
leases'' to more precisely describe the activities that would be 
authorized on the leased lands.
    A number of comments that object to including ``conservation'' 
alongside other uses in FLPMA's multiple use framework, including a 
letter from the Small Business Administration, Office of Advocacy 
(Advocacy), point to the absence of the word ``conservation'' from 
FLPMA's definition of ``principal or major uses.'' (See 43 U.S.C. 
1702(l))
    We disagree. Those comments misapprehend the meaning of the term 
``principal or major uses'' within the statutory framework established 
by FLPMA. That term does not appear in any of FLPMA's discussion of 
multiple use, and the principal or major uses included in the 
definition of that term do not hold an exclusive or even superior 
position within the multiple use framework. Indeed, that defined term 
appears in FLPMA only in section 202(e) (43 U.S.C. 1712(e)), which 
provides that all land use plan decisions are subject to revision and 
modification and--specific to principal or major uses--includes a 
Congressional reporting provision (section 202(e)(2)) that contains no 
substantive constraint on the BLM's authority. The Advocacy letter 
asserts that restoration or mitigation leases must be submitted to 
Congress, citing Section 202(e)(2). But section 202(e)(2) merely 
provides for congressional notification if a management decision 
``excludes (that is, totally eliminates)'' one or more of the principal 
or major uses for two or more years on an area exceeding one hundred 
thousand acres or more'' of the public lands. (43 U.S.C. 1712(e)(2)) 
The adoption of the final rule does not immediately result in any 
restoration or mitigation lease going into effect, much less one that 
covers one hundred thousand or more acres, let alone one that ``totally 
eliminates'' a principal or major use on such an area for two or more 
years. Nor does it follow from the rule that the leases the BLM does 
issue would necessarily meet the criteria to trigger section 202(e)(2). 
More importantly, the Advocacy letter fails to grapple with the 
necessary and obvious implication of this provision: Congress's clear 
recognition that the BLM is authorized to take actions that would 
exclude principal or major uses--including from large tracts of land--
as long as it reports such actions to Congress when it does. In short, 
the provision is not only inapplicable to most, if not all, restoration 
and mitigation leases that may be issued under this rule, but it 
clearly demonstrates that the BLM has the authority Advocacy claims it 
lacks.
    Several commenters suggested that the issuance of a final rule that 
recognizes conservation as a use of the public lands and allows for the 
issuance of restoration and mitigation leases might be challenged in 
federal court under the Administrative Procedure Act, speculating 
further that a reviewing court might evaluate these features of the 
rulemaking under the major questions doctrine.
    We disagree. The Supreme Court deemed the major questions doctrine 
to apply when an agency's asserted statutory authority is unclear and 
when the ``history and the breadth of the authority'' and the 
``economic and political significance'' of its assertion provide a 
``reason to hesitate.'' West Virginia v. EPA, 142 S. Ct. 2587, 2595 
(2022). But as this preamble to this final rule explains elsewhere in 
detail, and as courts have confirmed, FLPMA's animating principles of 
multiple use and sustained yield embrace conservation use as an 
integral component of the BLM's stewardship of the public lands. 
Moreover, while restoration and mitigation leases are specific new 
tools for managing the public lands, FLPMA provides clear and broad 
authority to manage the public lands at the discretion of the 
Secretary, including for conservation use, for the reasons described in 
detail above, and including through leases. (43 U.S.C. 1732(a)-(b))
    The BLM has a long history of exercising that broad regulatory 
authority to manage its lands through leases and similar instruments, 
including by issuing permits or right-of-way grants that authorize the 
permit holder to implement restoration and mitigation as a component or 
a condition of an authorization to use the public lands for development 
or extractive purposes. See, e.g., M-37039, The Bureau of Land 
Management's Authority to Address Impacts of its Land Use 
Authorizations through Mitigation, at 11-22 (Dec. 21, 2016) (reinstated 
by M-37075 (Apr. 15, 2022)) (``[The] BLM's charge under FLPMA to manage 
public lands based on principles of multiple use and sustained yield 
supports use of mitigation. The authority to evaluate and impose 
mitigation arises out of the broad authority FLPMA vests in the BLM to 
pursue congressional goals . . . for public lands. The BLM can evaluate 
and require mitigation through both the land use planning process and 
site-specific authorizations.''); Theodore Roosevelt Conservation 
P'ship, 616 F.3d at 505-06, 515-17 (concerning planning decision that 
outlined mitigation measures to be imposed as conditions of approval 
for oil and gas drilling). For the reasons noted above, Congress has 
spoken clearly that conservation--including in the forms of restoration 
or mitigation--is an appropriate use of the public lands and that, 
where a given use of the public lands is appropriate, leasing is an 
appropriate means to regulate such use.
    Several commenters noted that a different BLM rule--Resource 
Management Planning, 81 FR 89580 (Dec. 12, 2016)--was subject to a 
congressional joint resolution of disapproval under the Congressional 
Review Act (CRA) (5 U.S.C. 802). These commenters suggested that this 
rule, therefore, may be precluded by the CRA provision that ``a new 
rule that is substantially the same as'' a rule that does not continue 
in effect due to a joint resolution of disapproval may not be issued. 
(5 U.S.C. 801(b)(2))
    We disagree. This rule, which would promulgate a series of new 
regulations at 43 CFR part 6100 and make changes to 43 CFR 1610.7-2, is 
not substantially the same as the BLM's 2016 rule. The 2016 rule 
included amendments to Sec.  1610.7-2, but they were different in 
substance and form from the revisions proposed in this rule and 
involved a much broader amendment to all of the

[[Page 40315]]

planning regulations at 43 CFR part 1600. For example, this rule 
identifies ``landscape intactness'' as a value meriting consideration 
for conservation, including through designation of ACECs, and calls for 
land health evaluations at geographic scales broader than grazing 
allotments. But these features of the present rule do not amount to the 
same landscape-scale planning approach that was central to the 2016 
rule, and which would have been (and would need to be) implemented 
through a wholesale revision of the planning regulations at 43 CFR part 
1600.
    A number of comments noted that the BLM's management of the public 
lands is subject to additional laws beyond FLPMA and in some cases 
asked that the BLM limit the geographic scope of the final rule to 
exclude areas of public lands where another statute provides direction 
or informs how the BLM should manage those lands.
    We agree that laws beyond FLPMA govern BLM's management of the 
public lands, but we decline to amend the rule in response to these 
comments. The final rule applies across BLM-managed lands. However, 
implementation of the rule--that is, land use planning and individual 
project-level decisions--will be subject to and must be undertaken 
consistent with all applicable laws, including the Mining Law of 1872, 
30 U.S.C. 22 et seq., the Oregon and California Revested Lands 
Sustained Yield Management Act of 1937, 43 U.S.C. 2601 et seq. (the O&C 
Act), the Alaska National Interest Lands Conservation Act, 16 U.S.C. 
3101 et seq. (ANILCA), the Paleontological Resources Preservation Act 
of 2009, 16 U.S.C. 470aaa et seq. (PRPA), the Endangered Species Act, 
16 U.S.C. 1531 et seq. (ESA), the National Environmental Policy Act, 42 
U.S.C. 4321 et seq. (NEPA), and the National Historic Preservation Act, 
54 U.S.C. 300101 et seq. (NHPA).

G. Related Executive and Secretarial Direction

    The rule is consistent with directives set forth in several 
Executive and Secretary's Orders and related policies and strategies. 
These directives call on the Department of the Interior (DOI), and the 
Federal Government more generally, to use landscape-scale, science-
based, collaborative approaches to natural resource management.
    They include Executive Order 14072, Strengthening the Nation's 
Forests, Communities, and Local Economies, recognizes that healthy 
forests are ``critical to the health, prosperity, and resilience of our 
communities.'' It states a policy to:

pursue science-based, sustainable forest and land management; 
conserve America's mature and old-growth forests on Federal lands; 
invest in forest health and restoration; support indigenous 
traditional ecological knowledge and cultural and subsistence 
practices; honor Tribal treaty rights; and deploy climate-smart 
forestry practices and other nature-based solutions to improve the 
resilience of our lands, waters, wildlife, and communities in the 
face of increasing disturbances and chronic stress arising from 
climate impacts.

    The Executive Order calls for defining, identifying, and 
inventorying our nation's old and mature forests, then stewarding them 
for future generations to provide clean air and water, sustain plant 
and animal life, and respect their special importance to Tribal 
Nations. This rule advances these objectives by providing a framework 
for conservation use on public lands that would apply to mature and 
old-growth forests and woodlands managed by the BLM.
    And Joint Secretarial Order 3403 on Fulfilling the Trust 
Responsibility to Indian Tribes in the Stewardship of Federal Lands and 
Waters, issued on November 15, 2021, by DOI and the Department of 
Agriculture, reiterates the Departments' commitment to the United 
States' trust and treaty obligations as an integral part of managing 
Federal lands. The order emphasizes that ``Tribal consultation and 
collaboration must be implemented as components of, or in addition to, 
Federal land management priorities and direction for recreation, range, 
timber, energy production, and other uses, and conservation of 
wilderness, refuges, watersheds, wildlife habitat, and other values.'' 
The order also notes the benefit of incorporating Tribal expertise and 
Indigenous Knowledge into Federal land and resources management.

H. Public Involvement in the Proposed Rule

    The BLM published the proposed rule in the Federal Register on 
April 3, 2023 (88 FR 19583), for a 75-day comment period ending on June 
20, 2023. In response to public requests for an extension, on June 15, 
2023, the BLM announced a 15-day extension of the comment period. The 
official comment period extension notice was published on June 20, 2023 
(88 FR 39818). The extended comment period closed on July 5, 2023.
    During the comment period, the BLM hosted a variety of public 
outreach activities. The BLM held two virtual public meetings on May 15 
and June 5, 2023. The BLM held three in-person meetings in Denver, 
Colorado (May 25, 2023); Albuquerque, New Mexico (May 30, 2023); and 
Reno, Nevada (June 1, 2023) to provide an overview of the proposed rule 
and answer questions from the public. All webinars and meetings were 
led by a third-party facilitator. A video recording of the May 15 
virtual meeting and presentation slides in English and Spanish are 
available on the BLM website. The BLM also posted a reviewer guide and 
fact sheet, frequently asked questions on topics of interest, 
infographics, and other background information on the BLM website to 
further public understanding of the proposed rule. (https://www.blm.gov/public-lands-rule.)
    In addition, the BLM conducted external outreach and participated 
in dozens of meetings to discuss the content of the proposed rule, 
including congressional briefings; meetings with States and State 
agencies; meetings with grazing, recreation, renewable energy, and 
other stakeholder interest groups and associations; and presentations 
at conferences and events. Meetings were conducted by both headquarters 
staff and regional staff across the country.

I. Tribal Consultation on the Proposed Rule

    At the beginning of the rulemaking process, letters were sent to 
all federally recognized Tribes and Alaska Native Claims Settlement Act 
Corporations informing them of the proposed rule and inviting them to 
engage with the BLM to discuss their thoughts and concerns. The BLM 
conducted government-to-government consultation on the proposed rule as 
requested by Tribes.
    To facilitate understanding of the proposed rule, the BLM posted 
all meeting materials, including a recording of the first virtual 
meeting, frequently asked questions, and meeting handouts, on its 
website to accommodate Tribal members and other members of the public 
who could not attend a public meeting. This final rule is informed by 
input received from Tribes during the public comment period. Over 20 
Tribal governments, Alaska Native Corporations, and tribal entities 
submitted formal comments on the proposed rule. Tribal comments covered 
a range of topics including ACEC nomination, tribal consultation and 
co-stewardship, protection of cultural resources, and restoration and 
mitigation leasing. Responses to Tribal input are addressed in the 
``Tribal Engagement and Co-Stewardship'' and ``Section-by-Section 
Discussion of the Final Rule and Revisions from the

[[Page 40316]]

Proposed Rule'' sections of this preamble to the final rule.

J. Summary of Changes

    The BLM received an initial total of 216,403 comments from 
regulations.gov. Further analysis showed that there were public comment 
submissions with multiple cosigners, sometimes several thousand on one 
submission, which were initially counted as separate submissions but 
ultimately identified as a single submission with multiple signatures. 
Therefore, although 216,403 people voiced their opinion, the final 
count of comment letters came to 152,673. The comment letters on the 
proposed rule are available for viewing on the Federal e-rulemaking 
portal (https://www.regulations.gov) (search Docket ID: BLM-2023-0001).
    The BLM has reviewed all public comments and made changes, as 
appropriate, to the final rule based on those comments and internal 
review. Those changes are described in detail in the ``Section-by-
Section Discussion of the Final Rule and Revisions from the Proposed 
Rule'' of this preamble to the final rule. In addition, the ``Response 
to Public Comments'' section in this preamble to the final rule 
provides a summary of issues raised most frequently in public comments 
and the BLM's response.

III. Section-by-Section Discussion of the Final Rule and Revisions From 
the Proposed Rule

    Note:  This section of the preamble discusses newly promulgated 
part 6100 first before turning to the revisions to Sec.  1610.7-2, 
notwithstanding that Sec.  1610.7-2 appears first in the final rule 
text. Part 6100 contains the core content of this final rule, which 
frames the need for revision to Sec.  1610.7-2.

43 CFR Subchapter F--Preservation and Conservation

PART 6100--ECOSYSTEM RESILIENCE

Subpart 6101--General Information

Section 6101.1--Purpose
    This section describes the overall purpose for the rule. The rule 
is designed to facilitate healthy wildlife habitat, clean water, and 
ecosystem resilience so that public lands can better resist and recover 
from disturbances like drought and wildfire. It also aims to enhance 
mitigation options, establishing a regulatory framework for those 
seeking to use the public lands, while also ensuring that the public 
enjoys the benefits of mitigation measures. The rule discusses the use 
of protection and restoration actions, as well as tools such as land 
health evaluations, inventory, assessment, and monitoring.
    In response to public comments, the final rule expands the purpose 
statement to include preventing permanent impairment or unnecessary or 
undue degradation of public lands, in addition to promoting the use of 
conservation to ensure ecosystem resilience.
Section 6101.2--Objectives
    This section lists the specific objectives of the rulemaking. These 
objectives were discussed at length earlier in the preamble for the 
rule. In response to public comments, the BLM added four objectives to 
the original six, which are to: provide for healthy lands and waters 
that support sustainable outdoor recreation experiences for current and 
future generations; prevent permanent impairment or unnecessary or 
undue degradation of public lands; improve engagement and co-
stewardship of public lands with Tribal entities and promote the use of 
Indigenous Knowledge in decision-making; and advance environmental 
justice through restoration and mitigation actions.
    Additionally, in response to public comments, the final rule 
expands the objective that originally read ``Promote conservation by 
maintaining, protecting, and restoring ecosystem resilience and intact 
landscapes'' by specifically adding ``including habitat connectivity 
and old-growth forests.''
Section 6101.3--Authority
    A number of comments identified potential additional statutory 
authority on which the BLM might rely in promulgating this rule. The 
BLM has determined the reference to statutory authority is sufficient.
    A number of comments raised questions about the relationship 
between the rule and other laws, such as the Mining Law, the O&C Act, 
and ANILCA, that apply to particular areas or particular uses of the 
public lands. The final rule adds language in this section to clarify 
that implementation of the rule is subject to other applicable laws.
Section 6101.4--Definitions
    This section provides new definitions for concepts such as 
conservation, ecosystem resilience, sustained yield, mitigation, and 
unnecessary or undue degradation, along with other terms used 
throughout the rule text. These definitions apply to the use of those 
terms in part 6100, while definitions for the terms casual use, 
conserve, ecosystem resilience, intactness, landscape, monitoring, 
protect, and restore also apply to the use of those terms in Sec.  
1610.7-2.
    The final rule adopts, without revision, the proposed definitions 
of the terms: casual use; important, scarce, and sensitive resources; 
mitigation; mitigation strategies; monitoring; public lands; and 
reclamation. The final rule revises the proposed definitions of the 
terms: conservation, disturbance, effects, high-quality information, 
Indigenous Knowledge, intact landscape, landscape, permittee, 
protection, restoration, sustained yield, and unnecessary or undue 
degradation (including by identifying the elements of undue degradation 
and unnecessary degradation).
    The final rule defines additional terms to provide further clarity 
for implementing the rule: in-lieu fee program, intactness, land 
health, mitigation bank, mitigation fund, significant causal factor, 
significant progress, and watershed condition assessment. The final 
rule removes the definitions of the terms best management practices and 
land enhancement. The BLM decided to remove the definition of best 
management practices, because it is not a term that is generally used 
for describing mitigation measures. The BLM decided to remove the 
definition of land enhancement based on public comments that found the 
term confusing.
    The proposed rule defined the term ``resilient ecosystems.'' The 
final rule defines ``ecosystem resilience'' instead. The final rule 
does not, as some comments suggested it should, formally define the 
term ``permanent impairment,'' but the BLM intends that its meaning be 
informed by how it is used within the rule's definition of sustained 
yield.
    The following paragraphs describe the definitions adopted in the 
final rule and changes to these definitions from the proposed rule as 
applicable.
    The final rule defines the term ``casual use'' in order to clarify 
that the existence of a restoration or mitigation lease would not in 
and of itself preclude the public from accessing public lands for 
noncommercial activities such as recreation. Authorized officers may 
temporarily close public access for purposes authorized by restoration 
and mitigation leases, such as habitat improvement projects. However, 
in general, public lands leased for these purposes under the final rule 
would continue to be open to public use. The BLM received public 
comments recommending the definition be expanded to explicitly include 
uses

[[Page 40317]]

such as recreation. However, the BLM decided to retain the definition 
from the proposed rule because it exists in the same form in current 
regulations at 43 CFR 2920.0-5(k). The final rule adds language to the 
restoration and mitigation leasing section to clarify that leases will 
not preclude access to or across leased areas for recreation use, 
research use, or other compatible authorized uses, in addition to 
casual use. The definition of ``casual use'' in this part does not 
change the definition of casual use in 43 CFR 3809.5.
    The final rule defines ``conservation'' in the context of these 
regulations to mean the management of natural resources to promote 
protection and restoration. The overarching purpose of the rule is to 
help facilitate the use of conservation to support ecosystem 
resilience, and in doing so the final rule clarifies conservation as a 
use within the BLM's multiple use framework, including in decision-
making concerning land use planning and proposed projects. The final 
rule includes a stated objective to promote conservation on public 
lands, and subpart 6102 outlines principles, directives, management 
actions, and tools--including a new tool in restoration and mitigation 
leases--to meet this objective and fulfill the purpose of the rule. The 
BLM received comments recommending the definition of ``conservation'' 
more closely align with other definitions and recommending that the BLM 
distinguish between ``conservation'' and ``preservation.'' The 
definition of ``conservation'' was updated in the final rule to make 
clear that conservation is a use and that protection and restoration 
are tools to achieve conservation.
    The final rule defines the term ``disturbance'' to provide the BLM 
with guidance in identifying and assessing impacts to ecosystems, 
restoring affected public lands, and minimizing and mitigating future 
impacts. Identifying and mitigating disturbances and restoring 
ecosystems are important components of supporting ecosystem resilience 
on public lands. The BLM received public comments recommending the BLM 
clarify that disturbances can be natural or human-caused, suggesting 
that defining disturbance as a discrete event was too restrictive, and 
recommending that the BLM adjust the definition to more closely align 
with how ``disturbance'' is used in environmental impact statements. 
The definition of disturbance was updated in the final rule to clarify 
that disturbance can be either discrete or chronic, characteristic 
(where ecosystem or species have evolved to survive such a disturbance) 
or uncharacteristic, and that disturbance can be natural or human-
caused.
    The final rule defines the term ``ecosystem resilience'' (whereas 
the proposed rule included a definition of ``resilient ecosystem'') in 
the context of the rule's foundational precept that the BLM's 
management of public lands on the basis of multiple use and sustained 
yield relies on resilient ecosystems. The definition is broad and 
mirrors Department guidance by including concepts of resistance, 
recovery, and adaptation. The BLM received comments that suggested 
removing this term, changing the definition to clarify that habitat 
connectivity is key to a resilient ecosystem, and changing the 
definition to better and more accurately describe the characteristics 
of a resilient ecosystem. The BLM changed the term to ``ecosystem 
resilience'' to match the usage of this term in the rule and defined 
ecosystem resilience to be consistent with existing DOI definitions of 
this term.\9\ DOI's definition of ecosystem resilience is inclusive of 
three commonly used terms in scientific literature: resistance (i.e., 
withstand disturbance), recovery (i.e., recover from disturbance, and 
adaptability (i.e., change/adapt to disturbance). The purpose of the 
rule is to facilitate the use of conservation as part of sustained 
yield, such that ecosystems on public lands can adapt to environmental 
change, resist disturbance, and maintain or regain their function 
following environmental stressors such as drought and wildfire.
---------------------------------------------------------------------------

    \9\ https://www.doi.gov/sites/default/files/department-of-interior-climate-action-plan-final-signed-508-9.14.21.pdf.
---------------------------------------------------------------------------

    The final rule defines the term ``effects'' as the direct, 
indirect, and cumulative impacts from a public land use and clarifies 
that the term should be viewed as synonymous with the term ``impacts'' 
for the purposes of the rule. The BLM received comments recommending 
the definition be changed to match the definition of effects in the 
BLM's planning regulations. The definition of effects was updated in 
the final rule to reference 40 CFR 1508.1(g) and clarify that the use 
of direct, indirect, and cumulative impacts in the rule is consistent 
with the definition of those terms in 40 CFR 1508.1(g).
    The final rule defines the term ``high-quality information'' so 
that its use would ensure that the best available scientific 
information underpins decisions and actions that would be implemented 
under the proposed rule to achieve ecosystem resilience. The definition 
also clarifies that Indigenous Knowledge can be high-quality 
information that should be considered alongside other information that 
meets the standards for objectivity, utility, integrity, and quality 
set forth in the Department's Information Quality Guidelines. https://www.doi.gov/ocio/policy-mgmt-support/information-quality-guidelines. 
The BLM received public comments recommending that Indigenous Knowledge 
be considered as high-quality information, recommending that the BLM 
use the term ``credible data'' to describe high-quality information, 
and that the definition be clarified to be more specific about what 
qualifies as high-quality information. The definition of high-quality 
information was updated in the final rule to reference the most current 
Department guidance on scientific information and to specify when 
Indigenous Knowledge would be considered high-quality information in 
decision-making.
    The final rule defines the terms ``important,'' ``scarce,'' and 
``sensitive'' resources to provide clarity and consistency in the BLM's 
implementation of mitigation requirements, including under the final 
rule. The BLM received comments that the definition of these terms was 
vague and requesting more detail to clarify when a resource would 
qualify as important, scarce, or sensitive, as well as comments 
requesting more clarity on how the BLM determines whether a resource is 
important, scarce, or sensitive. The final rule does not change the 
definition of these terms, which are consistent with the BLM's 
mitigation policy and handbook. A determination that a resource is 
important, scarce, or sensitive is dependent on location, conditions 
within a planning area affecting a particular resource (e.g., drought), 
and the adverse effects on that resource from other past and 
foreseeable future land uses.
    The final rule defines the term ``Indigenous Knowledge'' to reflect 
the DOI's policies, responsibilities, and procedures to respect and 
equitably promote the inclusion of Indigenous Knowledge in the 
Department's decision-making, resource management, program 
implementation, policy development, scientific research, and other 
actions. The BLM received comments recommending changes to the 
definition of this term to encompass proper terminology for Indigenous 
Knowledge and make it consistent with existing Department regulations 
and guidance, or to drop the term from the rule. The definition of 
Indigenous Knowledge was updated in the final

[[Page 40318]]

rule to clarify that Tribes may use different terms to refer to this 
concept and to bring the definition of Indigenous Knowledge in line 
with current BLM, Department, and White House guidance.\10\ The final 
rule adds a definition for the term ``in lieu fee program.'' This term 
is used in Sec.  6102.5.1, Mitigation, to describe an available method 
for offsetting adverse impacts. The definition of this term is 
consistent with the BLM's mitigation policy.
---------------------------------------------------------------------------

    \10\ Executive Office of the President, Office of Science and 
Technology Policy and Council on Environmental Quality, Guidance for 
Federal Departments and Agencies on Indigenous Knowledge (Nov. 30, 
2022), https://www.whitehouse.gov/wp-content/uploads/2022/12/OSTP-CEQ-IK-Guidance.pdf; BLM Instruction Memorandum No. 2022-011, Co-
Stewardship with Federally Recognized Indian and Alaska Native 
Tribes Pursuant to Secretary's Order 3403 (Sept. 13, 2022), https://www.blm.gov/policy/pim-2022-011.
---------------------------------------------------------------------------

    The final rule defines the term ``intact landscape'' to guide the 
BLM with implementing direction. The rule (Sec.  6102.2) would require 
the BLM to identify intact landscapes on public lands, manage certain 
landscapes to protect their intactness, and pursue strategies to 
protect and connect intact landscapes. The BLM received comments 
suggesting the definition be updated to clarify the size of an intact 
landscape, clarify the characteristics of an intact landscape 
(including cultural landscapes), and add habitat connectivity and 
mature, old-growth forests as markers of an intact landscape. The 
definition was updated in the final rule to reflect commonly used 
definitions in policy and ecological literature, link the definition of 
``intact landscape'' to the revised ``landscape'' definition, and 
define intact landscapes in a manner that is more easily measured and 
assessed by the BLM to inform conservation actions. The revised 
definition reflects the reality that intactness exists on a spectrum 
and efforts to protect intactness should not be limited by a single 
threshold, but rather reflect landscape-specific levels required to 
support multiple use and sustained yield.
    The final rule adds a definition for the term ``intactness,'' which 
is a measure of the degree to which human influences alter or impair 
the structure, function, or composition of a landscape. Because the 
rule requires the BLM to identify intact landscapes, the agency will 
need to measure and inventory intactness as a resource value. The final 
rule clarifies that as part of managing to protect intact landscapes, 
the BLM will develop and maintain an inventory of landscape intactness 
using watershed condition assessments to establish a consistent 
baseline condition. The BLM will then use the intactness inventory, 
along with other high-quality information including habitat 
connectivity and migration corridor data, to identify intact landscapes 
in the land use planning process and consider management opportunities.
    The final rule adds a definition for the term ``land health.'' Land 
health is used throughout the rule to refer to the concept of a healthy 
and functioning ecosystem, and the BLM defines the term in the final 
rule to clarify the desired outcome of establishing land health 
standards and to be consistent with the definition of rangeland health 
in the BLM's Rangeland Health Standards Handbook, H-4180-1.\11\
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    \11\ This handbook describes the authorities, objectives, and 
policies that guide assessment of public land health and taking 
appropriate action to achieve, or make progress toward achieving, 
specified rangeland health standards. https://www.blm.gov/sites/blm.gov/files/uploads/Media_Library_BLM_Policy_h4180-1.pdf.
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    The final rule makes small adjustments to the definition of the 
term ``landscape'' to be more inclusive in terms of the types of 
resources and interests that can anchor a landscape and to align with 
definitions used in landscape ecology. The term ``landscape'' is used 
throughout the rule to characterize a meaningful area of land and 
waters on which restoration, protection, and other management actions 
will take place. Determining how the BLM's management actions can 
influence the health and resilience of ecosystems can vary across 
landscapes and over time.
    The rule defines ``mitigation'' consistent with the definition 
provided by existing Council on Environmental Quality regulations (40 
CFR 1508.1(s)), which identify various ways to address adverse impacts 
to resources, including steps to avoid and minimize those impacts and 
compensate for residual impacts. As a tool to achieve ecosystem 
resilience of public lands, the BLM will generally apply a mitigation 
hierarchy to address impacts to public land resources, seeking to 
avoid, then minimize, and then compensate for any residual impacts. 
This definition and the related provisions in the rule supplement 
existing DOI policy, which among other things provides boundaries to 
ensure that compensatory mitigation is durable and effective. The BLM 
made no changes to the definition from the proposed rule.
    The final rule adds a new definition for the term ``mitigation 
bank'' because the term is used in the final rule along with ``in-lieu 
fee program'' as a category of mitigation projects that would require a 
mitigation lease with additional requirements beyond those that would 
be required for smaller, single-use mitigation projects. A mitigation 
bank is a site where resources are restored, established, enhanced, or 
protected for the purpose of providing compensatory mitigation for an 
authorized use that is impacting similar resources elsewhere. The 
definition in the rule is consistent with the definition in the BLM's 
Mitigation Manual, MS-1794.\12\
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    \12\ This manual provides guidance on implementing consistent 
principles and procedures for mitigation in the BLM's authorization 
of public land uses. https://www.blm.gov/sites/default/files/docs/2021-11/MS-1794%20Rel.%201-1807.pdf.
---------------------------------------------------------------------------

    The final rule adds a new definition for the term ``mitigation 
fund'' because the rule provides standards for the BLM to approve, 
through a formal agreement, a third-party mitigation fund holder to 
implement compensatory mitigation programs or projects. A mitigation 
fund is an account established by a mitigation fund holder to collect 
and then disperse funds for projects that satisfy compensatory 
mitigation commitments and obligations. The rule also provides for the 
BLM in some circumstances to require mitigation lease holders to submit 
a formal agreement with a qualified mitigation fund holder.
    The final rule defines the term ``mitigation strategies'' as 
documents that identify, evaluate, and communicate potential mitigation 
needs and mitigation measures in advance of anticipated public land 
uses. The BLM received comments recommending replacing the word 
``strategies'' with ``approaches'' or ``documents.'' The final rule 
does not change the definition of this term, which is consistent with 
the definition of mitigation strategies from the BLM's Mitigation 
Manual, MS-1794.
    The rule defines the term ``monitoring'' to describe a critical 
suite of activities involving observation and data collection to 
evaluate (1) existing conditions, (2) the effects of management 
actions, or (3) the effectiveness of actions taken to meet management 
objectives. Management for ecosystem resilience requires the BLM to 
understand how proposed use activities impact resource condition at 
many scales. Monitoring is a critical component of the BLM's 
Assessment, Inventory and Monitoring (AIM) Strategy,\13\ which provides 
a standardized framework for assessing natural resource condition and 
trends

[[Page 40319]]

on BLM-administered public lands. The BLM did not change the definition 
of ``monitoring'' from the proposed rule because it is based on the 
definition and use of that term in the grazing regulations (43 CFR 
4100.0-5), is science-based, and enables the application of data to 
inform land management and understand management effects.
---------------------------------------------------------------------------

    \13\ The AIM Strategy provides quantitative data and tools to 
guide and justify policy actions, land uses, and adaptive management 
decisions. https://www.blm.gov/aim.
---------------------------------------------------------------------------

    The rule defines the term ``permittee'' as a person or organization 
with a valid permit, right-of-way grant, lease, or other land use 
authorization from the BLM. The rule largely discusses ``permittees'' 
when identifying the responsibility of parties in the context of 
mitigation and in discussing the opportunities to rely on third parties 
in complying with mitigation requirements. The proposed rule defined a 
permittee as a person; the final rule defines a permittee as a person 
or other legal entity.
    The final rule defines ``protection'' in the context of the 
overarching purpose of the rule, which is to promote the use of 
conservation measures to support the ecosystem resilience of public 
lands. ``Protection'' is a critical component of conservation, 
alongside restoration, and describes acts or processes that keep 
resources safe from degradation, damage, or destruction. The rule 
(Sec.  6101.2(b)) would include a stated objective to promote the 
protection of intact landscapes on public lands as a critical means to 
achieve ecosystem resilience. The BLM received comments that requested 
clarification of the term protection and recommended distinguishing 
between protection and preservation. Commenters suggested removing the 
term preserve from the definition of protection, and commenters were 
concerned that the term protection, as it was defined in the proposed 
rule, was intended to set land aside and preclude other uses. The 
definition of protection was updated in the final rule to clarify that 
protection is not synonymous with preservation and is not intended to 
prevent active management or other uses.
    The rule defines ``public lands'' in order to clarify the scope of 
the proposed rule and its intended application to all BLM-managed lands 
and uses. The definition is similar to the definition of ``public 
lands'' that appears at 43 CFR 6301.5, but the BLM has modified the 
definition from the proposed rule in response to comments to clarify 
that this rule extends only to BLM-managed surface estate. The 
resulting definition in this rule is specific to new part 6100 and 
should not be interpreted as changing the definition of ``public 
lands'' in any other context, including where that term would extend to 
BLM-managed mineral estate under other BLM regulations.
    The rule defines ``reclamation'' to identify restoration practices 
intended to achieve an outcome that reflects project goals and 
objectives, such as site stabilization and revegetation. While 
``reclamation'' is a part of a continuum of restoration practices, it 
contrasts with other actions that are specifically designed to recover 
ecosystems that have been degraded, damaged, or destroyed. Reclamation 
often involves initial practices that can prepare projects or sites for 
further restoration activities. The rule, at Sec.  6102.4.2, discusses 
reclamation in the context of bonding restoration and mitigation leases 
to ensure lessees hold sufficient bond amounts to provide for the 
reclamation of the lease areas and the restoration of any lands or 
surface waters adversely affected by lease operations. The BLM made no 
changes to the definition from the proposed rule.
    The final rule defines ``restoration'' in the context of the 
overarching purpose of this rule, which is to promote the use of 
conservation to ensure the ecosystem resilience of public lands. 
``Restoration'' is a critical component of conservation, alongside 
protection, and describes acts or processes of conservation that 
passively or actively assist the recovery of an ecosystem that has been 
degraded, damaged, or destroyed. The BLM received comments suggesting 
that the rule acknowledge both passive and active restoration as 
legitimate restoration methods and comments calling for the 
clarification of what the BLM's broad-scale recovery goals are for 
restoration. Specifically, commenters identified the need to be 
explicit about the goal of returning ecosystems to a more natural, 
native ecological state and that the use of nonnative species in 
restoration projects is not the preferred option. The definition of 
restoration was updated in the final rule to include both active and 
passive restoration and to clarify that the goal of restoration efforts 
is the recovery of an ecosystem to a more natural, native ecological 
state.
    The final rule adds a definition for the term ``significant causal 
factor'' because the rule uses this term to trigger an obligation on 
the part of the BLM to take appropriate action, including through the 
modification of authorizations and management practices for relevant 
programs and uses, in order to achieve land health. A significant 
causal factor is a use, activity, or disturbance that prevents an area 
from achieving or making significant progress toward achieving one or 
more land health standards. The rule requires the BLM to document a 
determination of the significant causal factor in circumstances in 
which resource conditions are not achieving or making significant 
progress toward achieving land health standards. If the BLM determines 
that existing management is a significant causal factor preventing 
achievement of land health standards, authorized officers must take 
appropriate action as soon as practicable.
    The final rule adds a definition for the term ``significant 
progress,'' which is used in the rule as the measure of satisfactory 
progress toward achieving land health standards. Many comments 
requested clarification of this term, and while it is impractical to 
quantify the magnitude or rate of change that constitutes significant 
progress, the BLM developed a qualitative definition for purposes of 
implementing the rule. The term is defined to mean measurable or 
observable changes in the indicators that demonstrate improved land 
health. Acceptable levels of change must be realistic in terms of the 
capability of the resource but must also be as expeditious and 
effective as practical.
    The final rule bases its definition of ``sustained yield'' on the 
FLPMA definition of that same term. This rule facilitates the use of 
conservation to achieve resilient ecosystems on public lands, which are 
essential to managing for multiple use and sustained yield. The BLM 
received comments suggesting the definition be updated to incorporate 
more precisely the language of the statutory definition, as well as 
comments recommending combining the definitions of sustained yield and 
multiple use and incorporating non-renewable resources into the 
definition of sustained yield. The final rule updates the definition of 
sustained yield to remain focused on renewable resources and 
responsible development of non-renewable resources and to add 
``consistent with multiple use'' to mirror the FLPMA definition of 
sustained yield.
    In response to public comments, the final rule expands the 
definition of ``unnecessary or undue degradation'' to address its 
distinct elements of ``unnecessary degradation'' and ``undue 
degradation''; and confirms that the statutory obligation to prevent 
``unnecessary or undue degradation'' applies when either unnecessary 
degradation or undue degradation, and not necessarily both, is 
implicated. The rule explains that ``undue degradation'' is harm to 
land resources or values that is excessive or disproportionate to the 
proposed action or an existing disturbance. For example, approving a

[[Page 40320]]

proposed access road through the only remaining critical habitat for a 
plant listed as endangered under the Endangered Species Act, even if 
there is not another location for the road, would generally (although 
not always) result in undue degradation. The rule explains that 
``unnecessary degradation'' is harm to land resources or values that is 
not needed to accomplish a use's stated goals. For example, approving a 
proposed access road through critical habitat for a plant listed as 
endangered under the Endangered Species Act that could be located 
elsewhere without impacting critical habitat and still provide the 
needed access would generally (although not always) result in 
unnecessary degradation.
    This definition is consistent with BLM's affirmative obligation 
under FLPMA to take action to prevent unnecessary or undue degradation, 
which applies when either unnecessary degradation or undue degradation, 
and not necessarily both, is implicated. The definition of 
``unnecessary or undue degradation'' applies to the use of those terms 
in the part 6100 regulations promulgated by this rule. It does not 
alter the definition of the term ``unnecessary or undue degradation'' 
at Sec.  3809.5 of this chapter and does not apply to that term's use 
in the regulations at subpart 3809 of this chapter.
    The final rule adds a definition for ``watershed condition 
assessment,'' which is defined to mean a process for assessing and 
synthesizing information on the condition of soil, water, habitats, and 
ecological processes within a watershed following the land health 
fundamentals through consideration of the watershed's physical and 
biological characteristics, landscape intactness, and disturbances. 
Watershed condition assessments are equivalent to the ``watershed 
condition classifications'' and ``land health assessments'' discussed 
in the proposed rule. The final rule updates the term and provides this 
definition in response to many public comments seeking clarification 
and efficiency of process.
Section 6101.5--Principles for Ecosystem Resilience
    The rule relies upon express direction provided in FLPMA to manage 
public lands on the basis of multiple use and sustained yield, and it 
establishes the principle that the BLM must conserve renewable natural 
resources at a level that maintains or improves ecosystem resilience in 
order to achieve this mission. The BLM made only minimal changes to 
this section from the proposed rule.
    Section 6101.5(d) directs authorized officers to implement 
principles of ecosystem resilience by recognizing conservation as a 
land use within the multiple use framework, including in decision-
making, authorizations, and planning processes; protecting and 
maintaining the fundamentals of land health; restoring and protecting 
intact public lands; applying the full mitigation hierarchy to address 
impacts to species, habitats, and ecosystems from land use 
authorizations; and preventing unnecessary or undue degradation.

Subpart 6102--Conservation Use To Achieve Ecosystem Resilience

    The rule clarifies that conservation is a use on par with other 
uses of public lands under FLPMA's multiple use framework. FLPMA 
directs the BLM to manage the public lands in a manner that protects 
the quality of scientific, scenic, historical, ecological, 
environmental, air and atmospheric, water resource, and archaeological 
values, among other resources and values, and that protects certain 
public lands in their natural condition. The BLM implements this 
mandate through land use plan allocations, including designations, and 
other planning decisions that conserve public land resources, seeking 
to balance conservation uses with other uses, such as energy 
development and recreation. The BLM also complies with this mandate 
when issuing decisions that implement its land use plans. In these 
implementation decisions, including when authorizing projects, the BLM 
promotes conservation use by requiring appropriate mitigation of 
impacts to natural resources on public lands. The rule provides 
specific direction for implementing certain programs in a way that 
emphasizes conservation use and provides new tools and direction for 
managing conservation use to facilitate ecosystem resilience on public 
lands.
    As described in detail in each section, the BLM updated the final 
rule in response to public comments to clarify processes, including how 
conservation uses would occur within and outside of land use planning 
processes; enumerate guiding principles for restoration and mitigation 
actions; and provide other adjustments to improve public understanding 
and agency implementation of the rule. The most significant change to 
this subpart is that the final rule establishes restoration and 
mitigation leases as two separate types of leases instead of providing 
simply for conservation leases available for both purposes (which was 
the approach in the proposed rule). The final rule expands the 
regulations governing these leases to provide a more comprehensive 
framework for implementation and respond to concerns heard from the 
public.
Section 6102.1--Protection of Landscape Intactness
    The BLM changed the title of Sec.  6102.1 from ``Protection of 
Intact Landscapes'' in the proposed rule to ``Protection of Landscape 
Intactness'' in the final rule. Public comments suggested that the rule 
distinguish intactness as a resource value from intact landscapes as 
delineated units. The change in the title of Sec.  6102.1 reflects that 
landscape intactness is the resource value that the BLM is seeking to 
identify and protect. The final rule includes a definition of the term 
``intactness'' to further guide implementation of this section. Section 
6102.1(a) and (b) require the BLM to manage certain landscapes to 
protect their intactness and to seek to prioritize actions that 
conserve and protect landscape intactness. The following section, 
6102.2, provides direction for the BLM to inventory and protect 
intactness on the public lands by identifying and managing intact 
landscapes in the land use planning process.
Section 6102.2--Management To Protect Intact Landscapes
    The BLM revised Sec.  6102.2 in response to public comments 
requesting clarity around how intact landscapes would be identified and 
managed within and outside of the land use planning process and to 
distinguish intactness as a resource value from intact landscapes as 
delineated units. The final rule establishes in Sec.  6102.2(a) that 
the BLM will maintain an inventory of intactness on the public lands, 
in accordance with FLPMA's requirement that the BLM maintain an 
inventory of all public lands and their resources and other values.
    In the land use planning process, Sec.  6102.2(b) requires the BLM 
to use the intactness inventory, and other available information 
including habitat connectivity and migration corridor data, to identify 
intact landscapes, evaluate alternatives to manage intact landscapes, 
and identify which intact landscapes or portions of intact landscapes 
will be managed for protection. Furthermore, in the land use planning 
process, Sec.  6102.2(c) requires the BLM to identify desired 
conditions and landscape objectives to guide implementation decisions 
regarding management of intact landscapes. In making management 
decisions for intact landscapes, the BLM will seek to work

[[Page 40321]]

with communities to identify the most suitable areas to protect as 
intact landscapes; consult with Tribes to identify opportunities for 
co-stewardship; establish partnerships; and monitor effectiveness of 
ecological protection activities.
    In addition to the land use planning process described above, Sec.  
6102.2(d) requires authorized officers to prioritize acquisition of 
lands or interests in lands that would further protect and connect 
intact landscapes and functioning ecosystems, and Sec.  6102.2(e) 
directs the BLM to develop a national system for collecting and 
tracking disturbance and intactness data and to use those data to 
minimize disturbance and improve ecosystem resilience. Data will be 
made available to the public.
Section 6102.3--Restoration
    In the proposed rule, restoration was divided across three sections 
(Restoration, Restoration Prioritization, and Restoration Planning). 
The final rule keeps a Restoration section but combines the remaining 
two sections into a Restoration Prioritization and Planning section. 
The definition of restoration, critical to interpretation of this 
section, has been updated to provide that restoration actions include 
both passive and active measures that assist the recovery of an 
ecosystem that has been degraded, damaged, or destroyed. The definition 
has been further updated to clarify that the intent of restoration 
actions is the return of more natural, native ecological states. The 
final rule emphasizes the importance of restoration in achieving 
multiple use and sustained yield and requires a consideration of the 
causes of degradation, the recovery potential of an ecosystem, and the 
allowable uses in the governing land use plan, such as whether an area 
is managed for recreation or is degraded land prioritized for 
development, in determining restoration actions. Principles for 
restoration actions, which were previously located in the Restoration 
Planning section of the proposed rule, are now found in the Restoration 
section to clarify that such principles apply to all restoration 
actions.\14\ The principles include direction to consult with Tribes to 
identify opportunities for co-stewardship or collaboration, similar to 
the direction provided for managing intact landscapes.
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    \14\ The reference to ``low-tech restoration activities'' in 
section 6102.3(d) means the practice of using simple, low unit-cost, 
structural additions (e.g., wood and beaver dams in streams) to 
mimic natural functions and promote specific processes.
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Section 6102.3.1--Restoration Prioritization and Planning
    A combined restoration prioritization and planning section at 
6102.3.1 requires the identification of restoration outcomes in 
resource management plans. Consistent with these outcomes, the section 
requires the identification of priority landscapes for restoration at 
least every 5 years and provides for a number of considerations for 
authorized officers when doing so. The section requires the development 
of restoration plans at least every 5 years and enumerates criteria 
with which restoration goals, objectives, and management actions 
identified in the plans must adhere. Among other criteria, restoration 
plans must adhere to commonly accepted principles and standards within 
the field of ecological restoration. Lastly, the section requires 
authorized officers to track restoration implementation and progress 
against identified goals and assess why restoration outcomes are not 
being met and what, if anything, is additionally needed to achieve 
restoration goals.
Section 6102.4--Restoration and Mitigation Leasing
    Section 302(b) of FLPMA (43 U.S.C. 1732(b)) grants the Secretary 
authority to regulate through appropriate instruments the use, 
occupancy, and development of the public lands. Under that broad 
authority, the rule provides a framework for the BLM to issue 
restoration and mitigation leases on public lands for the purpose of 
pursuing ecosystem resilience through mitigation and restoration 
actions. The BLM will determine whether a lease is an appropriate 
mechanism based on the context of each application for a proposed 
lease, consistent with the final rule.
    The BLM received many comments on the leasing provisions in the 
proposed rule that resulted in changes in the final rule. These changes 
include: establishing restoration leases and mitigation leases rather 
than conservation leases, which as proposed would have been used for 
either purpose; enabling conservation districts and State fish and 
wildlife agencies to hold leases; including consideration of factors to 
incentivize lease proposals that collaborate with existing permittees 
and other affected interests and meet other desirable criteria; 
requiring lessees to report annually on lease activity; and providing 
for the BLM to waive or reduce the rent of a restoration lease if the 
lease is providing valuable benefit to the public lands and is not 
generating revenue.
    Many commenters were concerned about public access to public lands 
that are leased for restoration or mitigation purposes and expressed 
concern that the rule's definition of ``casual use'' does not 
explicitly guarantee use for common activities. While the BLM did not 
change the definition of ``casual use'' in order to remain consistent 
with existing regulations, the final rule specifically states that a 
restoration or mitigation lease will not preclude access to or across 
leased areas for recreation use, research use, or other authorized use 
that is compatible with the restoration or mitigation activities.
    Some commenters questioned whether the BLM through this rulemaking 
or subsequent land use planning would allocate public lands as 
available to or excluded from restoration and mitigation leasing. The 
final rule does not identify or limit public lands that could be leased 
for restoration or mitigation purposes. However, several provisions 
guide the evaluation of which lands are suitable for leasing. The rule 
requires the BLM to identify restoration priority landscapes, intact 
landscapes, and landscape-scale mitigation strategies, and these areas 
would be logical locations for leases to support restoration and 
mitigation efforts the agency is prioritizing. The rule also enumerates 
factors for evaluating lease proposals based on criteria that are 
expected to make leases more successful. The rule does not allow for 
leases to be issued where an existing, authorized, and incompatible use 
is occurring, effectively removing areas from consideration for at 
least some activities that could be authorized by a restoration or 
mitigation lease. Additionally, any restoration or mitigation lease 
would need to conform to the BLM's approved land use plan. These 
provisions collectively guide restoration and mitigation leases to the 
most suitable locations without requiring the BLM, in every instance, 
to undertake a plan amendment or revision to allocate lands as 
available for leasing.
    The following paragraphs summarize the restoration and mitigation 
leasing provisions in the final rule.
    Section 6102.4(a) authorizes the BLM to issue restoration and 
mitigation leases for the purpose of restoring degraded landscapes or 
mitigating impacts resulting from other land use authorizations. 
Entities that can hold restoration and mitigation leases include 
individuals, businesses, non-governmental organizations, Tribal 
governments, conservation districts, and State fish and wildlife 
agencies. Qualified entities for a mitigation lease to establish an in-
lieu fee program

[[Page 40322]]

would be limited to non-governmental organizations, State fish and 
wildlife agencies, and Tribal government organizations. Leases cannot 
be held by foreign persons as that term is defined in 31 CFR 802.221. 
The BLM will rely on standard lease adjudication practices established 
in 43 CFR 2920 to determine if a lease applicant meets the 
preconditions in this part for a qualified entity. Restoration and 
mitigation leases will be issued for the necessary amount of time to 
meet the lease objective. A lease issued for restoration purposes can 
be issued for an initial term of up to 10 years, whereas a lease issued 
for mitigation purposes will be issued for a term commensurate with the 
impact it is mitigating. Activity on all leases will be reviewed for 
consistency with lease provisions at regular intervals and can be 
extended beyond their primary terms when extension is necessary to 
serve the purpose for which the lease was first issued. Section 
6102.4(a)(4) precludes the BLM from issuing new authorizations to use 
the leased lands if the use would be incompatible with the authorized 
restoration or mitigation use set forth in the lease.
    Section 6102.4(b) and (c) set forth the application process for 
restoration and mitigation leases. Applicants are required to submit 
detailed restoration or mitigation development plans that include 
information on outreach with existing permittees, lease holders, 
adjacent land managers or owners, and other interested parties. The 
authorized officer can require additional information such as 
environmental data and proof that the applicant has the technical and 
financial capability to perform the restoration and mitigation 
activities.
    Section 6102.4(d) enumerates factors for the authorized officer to 
consider when evaluating a lease application. Those factors include: 
lease outcomes that are consistent with restoration principles 
established in the rule; lease outcomes tied to desired future 
conditions that are consistent with the management objectives and 
allowable uses in the governing land use plan, such as an area managed 
for recreation or degraded land prioritized for development; 
collaboration with existing permittees, leaseholders, and adjacent land 
managers or owners; outreach to or support from local communities; and 
consideration of environmental justice objectives.
    Once a lease application is approved, Sec.  6102.4(e) requires the 
applicant to provide the BLM with a monitoring plan and to report 
annually and at the end of the lease period on lease activity.
    Section 6102.4(f) and (g) provide that restoration and mitigation 
leases do not entitle leaseholders to the exclusive use of the public 
lands and that other uses compatible with the objectives of the 
restoration or mitigation lease are explicitly allowed on leased lands. 
Consistent with other land use authorizations, such as rights-of-way, 
it is the BLM's view that no property interest is conveyed by issuing 
these leases. Section 6102.4(g) confirms that a restoration or 
mitigation lease will not preclude access to or across leased areas for 
casual use, recreation use, research use, or other use taken pursuant 
to a land use authorization that is compatible with the approved 
restoration or mitigation use.
    Section 6102.4(j) directs that cost recovery, rents, and fees for 
restoration and mitigation leases will be governed by existing 
regulations at 43 CFR 2920.6 and 2920.8 and that the BLM will generally 
collect annual rental based on fair market value. Recognizing that 
restoration lessees are providing a service to the public and the BLM, 
the rule provides for waiving or reducing the rent of a restoration 
lease if a valuable benefit is being provided to the public and revenue 
is not being generated. This approach is consistent with the approach 
in waiving rents for rights-of-way in 43 CFR 2806.15. Although section 
102 of FLPMA provides a policy preference for recovering fair market 
value for the use of the public lands (see 43 U.S.C. 1701(a)(9)), the 
BLM is not required to do so, especially in circumstances in which 
departing from charging a fair market value rent would further other 
policy priorities identified in section 102 of FLPMA. Here, the BLM has 
determined that allowing authorized officers the discretion to reduce 
or waive rent for restoration leases will assist in its effort to 
manage the public lands to protect the quality of ecological and other 
relevant values. (See 43 U.S.C. 1701(a)(8))
Section 6102.4.1--Termination and Suspension of Restoration and 
Mitigation Leases
    The final rule makes only minimal changes to Sec.  6102.4.1 from 
the proposed rule. Section 6102.4.1 outlines processes for suspending 
and terminating restoration and mitigation leases. Where the 
leaseholder fails to comply with applicable requirements, fails to use 
the lease for its intended purpose, or cannot fulfill the lease's 
purpose, the BLM may suspend or terminate the lease. An authorized 
officer must issue an immediate temporary suspension of a lease upon 
determination that a noncompliance issue adversely affects or poses a 
threat to public lands or public health or safety. Following 
termination of a lease, the leaseholder has sixty days to fulfill its 
obligation to reclaim the site (i.e., return the site to its prior 
condition or as otherwise provided in the lease). That obligation is 
distinct from the goal of restoring the site to its ecological 
potential that underlies the lease.
Section 6102.4.2--Bonding for Restoration and Mitigation Leases
    The final rule authorizes the BLM to require a bond for a 
restoration or mitigation lease involving surface-disturbing or active 
management activities, but does not require a bond in all cases as the 
proposed rule would have. Section 6102.4.2(a) directs that for 
mitigation leases, the lease holder will usually be required to provide 
letters of credit or establish an escrow account for the full amount 
needed to ensure the development plan meets all performance criteria. 
The final rule includes considerations for requiring a bond, such as 
the type and intensity of surface-disturbing activities, proposed use 
of experimental or non-natural restoration methods, and risks 
associated with the proposed actions.
    Section 6102.4.2(b) through (d) establishes additional bonding 
provisions regarding statewide bonds, filing of bonds, and default and 
are unchanged from the proposed rule.
Section 6102.5--Management Actions for Ecosystem Resilience
    The final rule includes minor updates to this section in response 
to comments suggesting more clarity around how the section connects to 
other sections of the rule. Commenters also recommended strengthening 
the focus on ecosystem resilience and emphasizing biodiversity as an 
important component of ecosystem resilience. This rule focuses 
primarily on supporting healthy and resilient ecosystems, which are the 
basis for multiple use and sustained yield and which, if achieved, will 
benefit biodiversity, water security, carbon sequestration, forage, and 
a host of other values.
    Section 6102.5 sets forth a framework for the BLM to make informed 
management decisions based on science and data, including at the 
planning, permitting, and program levels, that would help to facilitate 
ecosystem resilience. As part of this framework, authorized officers 
are required to identify priority watersheds, landscapes, and 
ecosystems that require protection and restoration efforts; develop and 
implement protection,

[[Page 40323]]

restoration, mitigation, monitoring, and adaptive management 
strategies; \15\ and share watershed condition assessment data with the 
public. The final rule cross-references these requirements listed in 
Sec.  6102.5(a) with other sections of the rule that provide additional 
guidance on these management actions for ecosystem resilience.
---------------------------------------------------------------------------

    \15\ Adaptive management is a system of management practices 
based on clearly identified outcomes and monitoring to determine 
whether management actions are meeting desired outcomes and, if not, 
facilitating management changes that will best ensure that outcomes 
are met or reevaluated. Adaptive management recognizes that 
knowledge about natural resource systems is sometimes uncertain (43 
CFR 46.30).
---------------------------------------------------------------------------

    Section 6102.5(b) requires the BLM to meaningfully consult with 
Tribes and Alaska Native Corporations and makes a change from the 
proposed rule that provides for Tribal input on whether actions are 
likely to substantially impact Tribes or Alaska Native Corporations. 
The rule also requires the BLM to respect and include Indigenous 
Knowledge in decision-making, including through Tribal co-stewardship, 
and updates provisions and definitions in the rule to reflect current 
departmental and agency guidance.
    Consistent with applicable law and resource management plans, 
including, for example, where an area is managed for recreation or is 
degraded land prioritized for development, authorized officers are 
required to make every effort to avoid authorizing any use of the 
public lands that permanently impairs ecosystem resilience. Permanent 
impairment of ecosystem resilience would be difficult or impossible to 
avoid, for example, on lands on which the BLM has authorized intensive 
uses, including infrastructure and energy projects or mining, or where 
the BLM has limited discretion to condition or deny the use. Through 
this frame, the rule recognizes that the BLM may develop land use plans 
that prioritize degraded areas for development, such as in the Arizona 
Restoration Design Energy Project, or generally prioritize areas for 
utility-scale development, such as the Solar Energy Zones designated in 
the 2012 Western Solar Plan, and that the effects on ecosystem 
resilience in such a plan may be mitigated but will not be completely 
avoided. The rule also requires the authorized officer to provide 
justification for decisions that may impair ecosystem resilience. In 
other words, the rule does not prohibit land uses that impair ecosystem 
resilience; it requires avoidance as a general matter and an 
explanation if impairment cannot be avoided.
    To ensure the best available science is underpinning management 
actions, the rule requires the BLM to use national and site-based 
assessment, inventory, and monitoring data, along with other high-
quality information, to evaluate resource conditions and inform 
decision-making.
Section 6102.5.1--Mitigation
    The rule at Sec.  6102.5.1(a) directs the BLM to apply the 
mitigation hierarchy to avoid, minimize, and compensate for adverse 
impacts to all public land resources, generally in that order. The rule 
states further that mitigation approaches or requirements may be 
identified in land use plans or other decision documents. Consistent 
with BLM's existing policy on mitigation (H-1794-1), which requires BLM 
to consider compensatory mitigation for important, scarce, or sensitive 
resources, Sec.  6102.5.1(b) expands upon this direction by requiring 
that mitigation to address adverse impacts to such resources should be 
applied with the goal of eliminating, reducing, and/or offsetting 
impacts on the resource, consistent with applicable law. This 
facilitates BLM's compliance with its multiple-use and sustained yield 
mission by conserving such resources for future generations. 
Determining the maximum benefit to an impacted resource from a 
compensatory measure is often achieved by carefully identifying the 
type, location, timing, and other aspects of the compensatory 
mitigation measure. This assessment is conducted as standard practice 
in the BLM's NEPA analysis and decision documents.
    The rule also identifies new principles at Sec.  6102.5.1(c) to 
apply when implementing mitigation, including the need to ensure 
compensatory mitigation is commensurate with the impacts, and the use 
of adaptive management, landscape-scale approaches, high-quality 
information, and performance criteria and effectiveness monitoring.
    At Sec.  6102.5.1(d), the rule allows the BLM to approve and use 
third-party mitigation fund holders to administer funds for the 
implementation of compensatory mitigation programs or projects and 
specifies the type of actions third parties can perform with 
compensatory mitigation funding. Section 6102.5.1(e) establishes the 
requirements for different types of entities that could be considered 
and approved as mitigation fund holders. The mitigation fund holder 
could be a State or local government, if, among other requirements, 
that entity can demonstrate to the satisfaction of the BLM that it is 
acting as a fiduciary for the benefit of the mitigation project and 
site. The section also allows for a mitigation fund holder to be an 
entity that, among other requirements, qualifies for tax-exempt status 
and provides evidence it can successfully hold and manage mitigation 
accounts.
    Sections 6102.5.1(f) through (i) provide further direction to 
authorized officers in managing mitigation leases and lease holders, 
including provisions to govern the collection of annual rent at fair 
market value for large or otherwise substantial compensatory mitigation 
programs or projects on public lands, including mitigation banks and 
in-lieu fee programs.

Subpart 6103 Managing Land Health To Achieve Ecosystem Resilience

Section 6103.1--Land Health Standards
    Consistent with the proposed rule, Sec.  6103.1 of the final rule 
directs that all program areas of the BLM must be managed in accordance 
with the fundamentals of land health, which are adopted, verbatim, from 
the fundamentals of rangeland health included at 43 CFR 4180.1 (2005). 
It does so by establishing a series of procedural requirements to guide 
the BLM's actions to address land health. The rule does not require 
that individual actions ``comply'' with the fundamentals of land 
health, nor does it require achievement of those fundamentals (as 
measured by the land health standards) as a precondition for any BLM 
decision.
    The rule in this section directs authorized officers to adopt 
national land health standards across all ecosystems that provide 
consistency and conformance with the fundamentals of land health and 
facilitate progress toward meeting land health. Acknowledging the 
importance of standards in managing all of the BLM's programs in 
accordance with the fundamentals, the title of Sec.  6103.1 has been 
changed to Land Health Standards. Section 6103.1 includes a new 
paragraph (b) describing the resources, processes, and values addressed 
through national land health standards as well as a new timeline at 
paragraph (e) to review and amend or supplement standards and a 
subsequent timeline to ensure standards remain sufficient. A new 
paragraph at Sec.  6103.1(d) instructs authorized officers to 
incorporate geographically distinct land health standards when needed 
to address unique or rare ecosystem types that may not be addressed by 
the national standards. These new timelines in the final rule--along 
with additional

[[Page 40324]]

implementation specificity found in other land-health related sections 
of the rule--are introduced in response to comments that sought more 
clarity and specificity for how standards may be updated to serve as 
appropriate measures for the fundamentals. Section 6103.1(f) makes 
explicit that any new or amended land health standard must be approved 
by the BLM Director prior to implementation.
Section 6103.1.1--Management for Land Health
    Section 6103.1.1(a) conveys the importance of assessing land health 
at a broad scale to manage for ecosystem resilience and provides that 
authorized officers should rely on assessments and evaluations 
conducted at such scales, as appropriate, to support decision-making. 
Section 6103.1.1(b) reinforces the direction that all BLM program areas 
must be managed to facilitate progress toward achieving land health 
standards. Section 6103.1.1(b)(1) requires authorized officers to apply 
existing standards in the administration of all BLM programs. 
Initially, this will mean applying the existing standards prepared 
pursuant to subpart 4180 of this chapter to all programs, not just 
grazing. Moving forward, consistent, national standards will be 
completed pursuant to procedures set out in this subpart, and not under 
the procedures set out in subpart 4180, and will then apply to all 
programs, including grazing. Section 6103.1.1(b)(2) directs programs to 
develop management guidelines, which are best practices in managing 
programs to achieve goals. Management guidelines are to be reviewed at 
least every 10 years consistent with review timelines in other sections 
that relate to land health. As with standards, existing management 
guidelines applicable to the grazing program will continue to apply. 
New and amended guidelines for grazing should be developed under the 
procedures in this subpart, and not subpart 4180. Sections 6103.1.1(c) 
and (d) require that land health be included in land use planning, 
primarily when identifying allocation decisions and actions that are 
anticipated to achieve land health outcomes, as well as any impediments 
in doing so.
Section 6103.1.2--Land Health Evaluations and Determinations
    Section 6103.1.2(a) has been modified to require that authorized 
officers complete watershed condition assessments and land health 
evaluations at least every 10 years. Watershed condition assessments 
supplant land health assessments in the proposed rule and characterize 
resource conditions, while subsequent land health evaluations interpret 
assessment findings to draw conclusions about whether land health 
standards are being achieved consistent with the fundamentals of land 
health. This efficiency of process responds to many comments and 
concerns about the BLM's ability to complete land health assessments 
across broad spatial scales.
    Direction to conduct watershed condition assessments and land 
health evaluations at broader spatial scales, as opposed to at the 
scale of an allotment or other more narrowly drawn boundary or project 
area, builds on best practices currently deployed by BLM field offices, 
responds to comments recommending landscape-scale approaches as a way 
to address the backlog of pending land health assessments and 
evaluations, and better serves efforts to understand and address land 
health conditions across management boundaries.
    Section 6103.1.2(d) provides what must be incorporated when 
conducting land health evaluations, such as watershed condition 
assessments and high-quality information requirements. Section 
6103.1.2(d) further clarifies the requirements for conducting land 
health evaluations, including that authorized officers document the 
rationale and findings as to whether each land health standard is 
achieved or making significant progress towards achievement.
    Sections 6103.1.2(e), (f), and (g) describe the process after land 
health evaluations determine if resource conditions are or are not 
achieving or making significant progress toward achieving land health 
standards. When watershed condition assessments and land health 
evaluations find that resource conditions are achieving or making 
significant progress toward achieving land health, then project-level 
decisions should rely on such evidence where possible and appropriate. 
Section 6103.1.2(f) provides for tiering documentation and evidence 
from broad-scale assessments and evaluations for project-level 
decisions, such as grazing permit renewals, which promotes efficiency 
and streamlines decision-making. This provision responds to comments 
concerned with the existing backlog of assessments land health 
evaluations.
    When watershed condition assessments and land health evaluations 
find that resource conditions are not achieving, or making significant 
progress toward achieving, land health standards, then causal factor 
determinations, as directed by Sec.  6103.1.2(f), must be prepared no 
later than a year after the evaluation. Determinations document 
significant causal factors for non-achievement. Section 6103.1.2(f)(3) 
requires authorized officers to take appropriate action as soon as 
practicable to address nonachievement of land health standards when the 
significant causal factors include existing management practices or 
levels of use on public lands. However, as clarified in Sec.  
6103.1.2(f)(4), to the extent existing grazing management practices or 
levels of grazing use on public lands are significant causal factors 
preventing achievement of land health standards, authorized officers 
must also comply with the requirement for taking appropriate action set 
by Sec.  4180.2(c) of this chapter, including that appropriate action 
be taken not later than the start of the next grazing year.
    Further, as noted previously, appropriate actions in a specific 
situation will be informed and may be constrained by applicable law and 
the governing land use plan. For example, where a land use planning 
approach, such as BLM Arizona's Restoration Design Energy Project, is 
intended to support development of renewable energy on disturbed or 
previously developed sites, then appropriate actions would be designed 
to add measures that facilitate the progress of the affected lands 
toward meeting the applicable fundamentals of land health. However, 
these actions would be informed by the overall approach of identifying 
disturbed lands suitable for renewable energy development and applying 
measures consistent with those management decisions. This is consistent 
with the approach to incorporate design features into the Restoration 
Design Energy Project Record of Decision to reduce overall impacts to 
the lands identified for development. (See https://eplanning.blm.gov/public_projects/nepa/79922/107093/131007/RDEP-ROD-ARMP.pdf).
    Section 6103.1.2(f)(5) identifies some appropriate actions that may 
be deployed to address practices and uses determined to be significant 
causal factors, consistent with applicable law, regulation, and the 
governing resource management plan and its management objectives, such 
as where an area is managed for recreation or is degraded land 
prioritized for development. For example, if a governing resource 
management plan identifies degraded lands for solar development and 
those areas are not meeting standards, the authorized officer should 
consider that land use planning decision in determining the appropriate 
action. In that circumstance, it would typically

[[Page 40325]]

not be appropriate to deny solar or wind use altogether, although 
design features or other mitigation measures may be applied. Section 
6103.1.2(i) reinforces that appropriate actions must be consistent with 
existing resource management plans and notes that if planning decisions 
do not allow for appropriate actions to address significant causal 
factors, then an authorized officer may decide to amend or revise the 
applicable land use plan. However, whether to undertake a planning 
process is at the discretion of the authorized officer. Sections 
6103.1.2 (j) and (k) respond to public comment by requiring annual, 
publicly available reporting on assessment, evaluation, and 
determination accomplishments; results; and actions.
Section 6103.2--Inventory, Assessment, and Monitoring
    The final rule requires the BLM to complete watershed condition 
assessments every 10 years and consider them in multiple decision-
making processes. New paragraphs at Sec.  6103.2(a) further describe 
the purpose, process, and requirements of conducting watershed 
condition assessments in support of land use planning, protection of 
intact landscapes, managing for ecosystem resilience, informing 
restoration actions, and informing land health evaluations and 
determinations. In response to public comments encouraging consistency 
in analysis approach, standard data sources, and transparency, the 
final rule adds in Sec.  6103.2(a) that the BLM must utilize multiple 
sources of high-quality information to understand conditions and trends 
relevant to land health standards and incorporate consistent analytical 
approaches, quantitative indicators, and benchmarks where practicable. 
It is anticipated that watershed condition assessments will frequently 
be completed not by BLM State Offices, but by national-level resources, 
such as the National Operations Center, utilizing standardized 
procedures and existing data and analyses and validated with local data 
and high-quality information as appropriate.
    Section 6103.2(b) clarifies that the BLM's inventory of public 
lands includes both landscape components and core indicators that 
address land health fundamentals and requires the use of high-quality 
information and inventory, assessment, and monitoring information, 
including standardized quantitative monitoring data, remote sensing 
maps, and geospatial analyses, to inform decision-making across program 
areas. In response to public comments, the BLM clarified that this 
inventory specifically includes infrastructure and renewable resources 
and that it is available to the public (currently, https://gbp-blm-egis.hub.arcgis.com/). Section 6103.2(c) establishes principles to 
ensure that inventory, assessment, and monitoring activities are 
evidence-based, standardized, efficient, and defensible.

43 CFR Chapter II

Subpart 1610--Resource Management Planning

Section 1610.7-2--Designation of Areas of Critical Environmental 
Concern
    The rule includes changes to the land use planning regulations to 
elaborate on the role ACECs play as the principal administrative 
designation for public lands where special management attention is 
required to protect important natural, cultural, and scenic resources 
and to protect against natural hazards. It reiterates FLPMA's 
requirement that the BLM give priority to the identification, 
evaluation, and designation of ACECs during the land use planning 
process and provides additional clarity and direction for complying 
with this statutory requirement. The rule codifies in regulation 
procedures for considering and designating potential ACECs that were, 
prior to promulgation of this rule, partially described in regulation 
and partially described in agency policy.
    The BLM received many comments on the ACEC provisions of the 
proposed rule, and the final rule reflects changes the BLM made based 
on public comments. As described in more detail below, changes from the 
proposed rule include: providing for the BLM to implement temporary 
management for potential ACECs identified outside of an ongoing 
planning process, with public notice and periodic reevaluation; 
codification of research natural areas as a type of ACEC designated for 
the primary purpose of research and education on public lands, 
consistent with existing regulations and policy; a presumption that all 
areas found to meet all three ACEC criteria will be designated in the 
resource management plan; a management standard that requires the BLM 
to administer designated ACECs in a manner that conserves, protects, 
and enhances the relevant and important values; and a definition for 
the term ``irreparable damage.''
    The final rule also confirms that proposed and existing ACECs being 
addressed in the planning process for a resource management plan or a 
plan amendment will be identified in all applicable Federal Register 
Notices and in public outreach materials. The BLM will not be required 
to produce separate notices specific to ACECs. The following paragraphs 
summarize the ACEC provisions in the final rule.
    Section 1610.7-2(a) confirms that ACECs are the principal 
administrative designation for public lands where special management is 
required to protect and prevent irreparable damage to important 
resources. ACECs are considered and designated in land use planning 
processes, including resource management plan revisions and amendments.
    Section 1610.7-2(b) requires authorized officers to identify, 
evaluate, and give priority to areas that have potential for 
designation and management as ACECs in the land use planning process, 
and it provides that proposed and existing ACECs that will be addressed 
in the planning process for a resource management plan, plan revision, 
or plan amendment will be identified in all applicable public notices.
    Section 1610.7-2(c) requires authorized officers to identify areas 
that may be eligible for ACEC status early in the planning process and 
specifies the need to target areas for evaluation based on resource 
inventories, internal and external nominations, and existing ACEC 
designations.
    Section 1610.7-2(d) outlines the three criteria that must be met 
for ACEC designation, which are relevance, importance, and special 
management attention. The rule provides that values and resources may 
have importance if they contribute to ecosystem resilience, landscape 
intactness, or habitat connectivity, in addition to other importance 
criteria. The final rule requires that values and resources have more 
than local importance to meet the importance criteria, a change from 
the proposed rule based on public comments. Special management 
attention prevents irreparable damage to the relevant and important 
values and would not be prescribed if the relevant and important values 
were not present. The rule defines ``irreparable damage'' in this 
context to mean: ``harm to a value, resource, system, or process that 
substantially diminishes the relevance or importance of that value, 
resource, system, or process in such a way that recovery of the value, 
resource, system, or process to the extent necessary to restore its 
prior relevance or importance is impossible.'' Requiring a finding that 
special management attention is necessary for ACEC designation is 
consistent with BLM practice and guidance but was not a feature of the

[[Page 40326]]

regulations prior to promulgation of this rule.
    Section 1610.7-2(e) provides that the BLM may designate an ACEC 
research natural area (RNA) for an area that meets all three ACEC 
criteria set forth in Sec.  1610.7-2(e) and is consistent with the 
purposes for research natural areas established in existing regulations 
at 43 CFR subpart 8223. These regulations allow the BLM to establish 
RNAs for the primary purpose of research and education on public lands 
having natural characteristics that are unusual or that are of 
scientific or other special interest. The BLM's current guidance, as 
set forth in the agency's Land Use Planning Handbook and ACEC Manual, 
considers RNAs as a type of ACEC that are to be designated following 
the ACEC designation process. The BLM has designated many ACEC RNAs in 
existing land use plans following this guidance. Because this rule is 
codifying the BLM's ACEC guidance and process, and in response to 
public comments on this topic, the final rule provides for this RNA 
designation.
    Section 1610.7-2(f) provides that the boundaries of proposed ACECs 
shall be identified for public lands as appropriate to encompass the 
relevant and important values and geographic extent of the special 
management attention needed to provide protection.
    Section 1610.7-2(g) requires the BLM to analyze in detail all 
potential ACECs that have relevant and important values in planning 
documents. In the land use planning process, the BLM evaluates the need 
for special management attention to protect the relevant and important 
values of potential ACECs, which could include other allocations and 
designations that would provide appropriate protection and prevent 
irreparable damage to the relevant and important values.
    Section 1610.7-2(h) directs that an approved resource management 
plan, plan revision, or plan amendment will list all designated ACECs, 
identify their relevant and important values, and include the special 
management attention being provided to them.
    Section 1610.7-2(i) establishes procedures for addressing potential 
ACECs that are identified outside of an ongoing planning process. The 
State Director has the discretion to determine the appropriate time to 
evaluate whether the nomination meets the relevant, important, and 
special management criteria identified in 1610.7-2(d)(1) through (3). 
If a potential ACEC nomination meets all three criteria specified in 
the regulations--that is, it has relevance and importance and needs 
special management attention--then the State Director will, at their 
discretion, either initiate a land use planning process to evaluate the 
potential ACEC for designation or provide temporary management 
consistent with the existing resource management plan to protect the 
relevant and important values from irreparable damage. The final rule 
clarifies that the authorized officer in this context would be the 
State Director, consistent with other portions of the rule addressing 
decisions on potential ACECs. If the BLM decides to implement temporary 
management, the BLM will comply with all applicable laws, including 
NEPA, notify the public, and reevaluate the area periodically to ensure 
temporary management is still necessary. This provision does not change 
the presumption that ACECs are nominated and addressed through resource 
management planning processes, and it does not require the BLM to 
evaluate ACEC nominations outside the planning process.
    Section 1610.7-2(j) requires the State Director to: determine which 
ACECs to designate based on specific factors including a presumption 
that all potential ACECs that meet all three criteria will be 
designated; provide a justification and rationale in decision documents 
for decisions both to designate an ACEC and not to designate an ACEC; 
administer designated ACECs in a manner that conserves, protects, and 
enhances the relevant and important values and only allow casual use or 
uses that will ensure the protection of the relevant and important 
values; and prioritize acquisition of inholdings within ACECs and 
adjacent or connecting lands that also possess the relevant and 
important values of a specific ACEC. In response to comments, the final 
rule eliminated the requirement included in the proposed rule that 
State Directors provide annual reports describing activity plans and 
implementation actions for each ACEC in the State. Such reporting is 
more appropriately developed during implementation of the final rule 
and should remain within the discretion of the State Director.
    Section 1610.7-2(k) authorizes the State Director to remove an ACEC 
designation in a land use planning process only when special management 
attention is not needed because another legally enforceable mechanism 
provides an equal or greater level of protection, or when the relevant 
and important values are no longer present, cannot be recovered, or 
have recovered to the point where special management is no longer 
necessary.
    Section 1610.7-2(l) identifies terms that are used in the ACEC 
section--casual use, conserve, ecosystem resilience, intactness, 
landscape, monitoring, protect, and restore--and provides that they 
should be interpreted consistent with the definitions of those same 
terms in Sec.  6101.4.
Severability
    The provisions of the rule should be considered separately. If any 
portion of the rule were stayed or invalidated by a reviewing court, 
the remaining elements would continue to provide the BLM with important 
and independently effective tools to advance conservation on the public 
lands. In particular, revisions to existing planning regulations at 43 
CFR part 1600 governing the designation and management of ACECs are 
separate from the balance of the rule, which promulgates the new 43 CFR 
part 6100. Within part 6100, the rule includes a number of aspects that 
function independently and hold independent utility. For example, the 
rule's provisions pertaining to the identification and management of 
intact landscapes and other values in land use planning and agency 
decision-making; its framework for third-party restoration and 
mitigation leasing; and its procedures for adopting national land 
health standards, assessing land health, and using those assessments to 
drive agency decisions operate as independent means to achieve the 
rule's overarching goal of facilitating conservation of the public 
lands. Hence, if a court prevents any provision of one part of this 
rule from taking effect, that should not affect the other parts of the 
rule. The remaining provisions would remain in force.

IV. Additional Response to Public Comments

    The BLM received an initial total of 216,403 comments from 
regulations.gov. Further analysis showed that there were public comment 
submissions with multiple cosigners, sometimes several thousand on one 
submission, which were initially counted as separate submissions but 
ultimately identified as a single submission with multiple signatures. 
Therefore, although 216,403 voiced their opinion, the final count of 
comment letters came to 152,673. The comment letters on the proposed 
rule are available for viewing on the Federal e-rulemaking portal 
(https://www.regulations.gov) (search Docket ID: BLM-2023-0001).
    The BLM has reviewed all public comments in the context of the 
proposed rule and the particular

[[Page 40327]]

solicitations for comment in its preamble. The BLM has made changes to 
the final rule based on the public comments that refine and further 
develop the concepts identified in the proposed rule. The BLM did not 
make wholesale changes or additions, even when prompted to do so by the 
public comments, that would have caused the final rule to materially 
alter the issues included in or substantially depart from the terms and 
substance of the proposed rule. Changes made are described in this 
section and the ``Section-by-Section Discussion of Final Rule and 
Revisions from the Proposed Rule'' section.
    The following is a summary of significant issues raised in comments 
the BLM received on the proposed rule and responses to these comments. 
The comments highlighted in the following paragraphs fell into several 
categories: comments related to sections of the proposed rule; comments 
related to public lands uses and resources not addressed in the rule; 
and comments on the rulemaking process. See the Section-by-Section 
discussion for responses to public comments on specific sections of the 
proposed rule.

A. Conservation Leasing

    Commenters generally sought a better understanding of many aspects 
of the conservation leasing proposal, including the purposes and uses 
of the leases, and identified the need for terminology that better 
reflects those purposes and uses. Commenters requested additional 
detail within the rule text for what would and would not be allowed 
under a conservation lease, clarification on the terms and duration of 
the leases, and information on how conservation leases would interact 
with existing uses such as grazing and recreation.
    In response to these comments, the BLM updated the rule to provide 
clarity and specificity for the leasing program being established in 
the rule. Significantly, the final rule establishes two distinct types 
of leases in place of referring to ``conservation leases'': restoration 
leases and mitigation leases. Restoration leases can be used to 
facilitate restoration of land and resources by passively or actively 
assisting the recovery of an ecosystem; and mitigation leases can be 
used to offset impacts to resources resulting from other land use 
authorizations. Restoration can occur under a mitigation lease when 
restoration is a mitigation action being taken pursuant to the lease. 
The final rule enumerates factors for authorized officers to consider 
when evaluating lease proposals, such as whether the applicant is 
collaborating with existing permittees, whether the lease would advance 
environmental justice objectives, or whether the objectives of the 
proposed leases would be supported by current management of the lands. 
The final rule also enables conservation districts and State fish and 
wildlife agencies to hold restoration and mitigation leases and 
specifies that recreation uses would not generally be precluded by 
restoration or mitigation leases.
    Many comments also asked about how conservation leases relate to 
valid existing rights and permitted uses, including grazing, mining, 
and oil and gas leasing. Restoration and mitigation leases would not 
disturb existing authorizations, valid existing rights, or State or 
Tribal land use management. If the proposed activities in a restoration 
or mitigation lease would conflict with existing authorizations, such 
as if a specific type of restoration would not be compatible with 
grazing and the proposed location is already subject to a grazing 
authorization, then the restoration or mitigation lease could not be 
issued on those particular lands unless the proposal were modified to 
eliminate the conflict. While an applicant might propose a lease to 
help achieve restoration or mitigation outcomes on public lands, the 
BLM retains discretion as to whether to issue a lease in response to a 
proposal.
    Some commenters raised concerns about the ability of foreign 
entities to use conservation leases to block development of critical 
mineral or energy projects on public lands or to obtain conservation 
leases near military bases or other sensitive government installations. 
In response to these and other comments on the potential use of 
conservation leases in ways that would excessively interfere with other 
uses or to intentionally block development, the BLM clarified that 
restoration and mitigation leases may only be issued for two discrete 
purposes: restoration of degraded landscapes or mitigation to offset 
the impacts of development (6102.4(a)(1)). To specifically address 
concerns around foreign actors, the BLM also revised the rule to 
explicitly exclude foreign persons, as that term is defined in 31 CFR 
802.221, from being qualified to hold a restoration or mitigation 
lease. The BLM will rely on its standard lease adjudication practices 
established in 43 CFR 2920 to determine if a lease applicant meets the 
preconditions for a qualified lease holder.
    The final rule includes various other updates to the language 
throughout the text of the rule to provide readers with a clearer 
understanding of the goals and future implementation of the leasing 
program. For example, the final rule adopts principles for restoration 
and mitigation that provide additional structure for restoration and 
mitigation leases. The final rule also refines the BLM's discussion of 
intact landscapes and restoration priority landscapes, which would 
support identification of areas for restoration and mitigation leases.
    Many commenters recommended that conservation leases should undergo 
NEPA analysis. A project-level decision to issue a restoration or 
mitigation lease will comply with NEPA, as is typically the case for 
Federal actions on public lands, and the BLM will prepare a NEPA 
analysis to support such project-level decisions when appropriate.

B. Restoration

    Commenters provided a wide variety of comments on the topic of 
restoration. Comments generally related to one of three broad issues: 
the definition of restoration; the process by which restoration 
priorities are identified and the use of resource management plans 
(RMPs) in doing so; and conflicts that can arise in the application of 
restoration actions.
    Several commenters expressed the need for clarifying the definition 
of restoration and suggested that it should include the concept of 
returning an area to its natural, native ecological state with several 
comments recommending that the BLM look to the Society for Ecological 
Restoration's ``International Principles and Standards for the Practice 
of Ecological Restoration'' for guidance.
    Other commenters requested clarification as to where, how, and when 
restoration priorities are determined under the rule and called for 
transparency and public engagement in this process. Some comments also 
mentioned the use of resource management plans to identify and 
communicate restoration priorities and expressed concern that including 
restoration plans in RMPs could complicate and lengthen the RMP 
adoption or revision process. Other commenters, however, suggested that 
focusing on creating a 5-year schedule for restoration activities 
within RMPs is too narrow and proposed looking across watersheds (or 
subbasins or basins) to identify priorities at the state level, 
irrespective of RMP boundaries. They stated doing so may assist the BLM 
in better allocating limited restoration funds. Other comments 
suggested that restoration plans focus on implementation-level 
decisions rather than being incorporated into RMPs. One

[[Page 40328]]

comment suggested that each BLM district have a map identifying 
specific areas suitable for restoration measures.
    Commenters expressed concerns about the practicalities and 
potential conflicts with implementing restoration across all BLM-
administered lands. Comments discussed how in certain cases, 
restoration to a reference state may not be feasible or appropriate 
because the landscape has crossed an ecological threshold and is highly 
unlikely to be fully restored, or because the resource has high value 
or function and unique character that cannot be restored or replaced. 
Several comments discussed the proposed rule's treatment of land health 
standards in the context of restoration, noting that some restoration 
actions may not always have positive effects on land health and 
questioning whether achieving land health standards should be the sole 
purpose of restoration plans. Commenters raised examples of restoration 
projects in which the BLM removed pinyon-juniper forest through 
ecologically damaging practices such as chaining.
    In response to comments, the BLM included a new provision within 
Sec.  6102.3 (``Restoration'') to apply a set of principles to all 
restoration activities. These principles were largely identified in the 
draft rule in the context of planning for restoration. In response to 
comments, these principles now apply to all restoration actions and, 
among other purposes, seek to ensure that restoration actions directly 
address the causes of degradation and, importantly, take into 
consideration the recovery potential of the habitat. These principles 
will help the BLM target the right restoration actions in the right 
places, thereby reducing unintended outcomes and increasing the 
potential for successful restoration.
    The principles also ensure that both passive and active management 
actions are allowable and promoted as restoration activities. Likewise, 
the definition of restoration has been changed to include explicit 
mention of both passive and active processes or actions and, in 
response to comments, include a stated goal of restoration actions to 
return ecosystems to a ``more natural, native ecological state.''
    In response to comments on restoration prioritization and planning, 
the BLM revised the rule text to provide for the development of 
restoration plans outside of the RMP revision or amendment process. The 
final rule requires authorized officers to identify priority landscapes 
for restoration, consistent with existing, applicable RMP goals and 
objectives, and to prepare a restoration plan for those priority 
landscapes. Technical details, including for example geographic scale, 
for the development of restoration plans can be addressed through 
agency guidance. Such guidance may also address how to incorporate land 
health standards into restoration plans and may identify commonly 
accepted scientific standards within the field of ecological 
restoration for restoration work.

C. Mitigation

    Generally, comments on the mitigation aspects of the rule could be 
grouped into three categories: the BLM's authority under FLPMA to 
require mitigation; the policies and practices that govern how the BLM 
will deploy mitigation, including use of the mitigation hierarchy; and 
the use of leases, as proposed by the rule, for mitigation purposes.
    Many commenters expressed reservations about the BLM's mitigation 
management approach under the proposed rule, particularly how it might 
conflict with the multiple use mandate outlined in FLPMA. Critics 
argued that this could inadvertently prioritize resource preservation 
at the expense of a more comprehensive management approach, in 
particular with regard to grazing and recreation. Some commenters 
posited that the proposed mitigation standards are unlawful and reach 
beyond the BLM's authority under FLPMA and conflict with other 
statutory mandates. Other commenters conveyed the reverse, suggesting 
that the BLM's authority and responsibility to apply the mitigation 
hierarchy is central to managing for multiple use and sustained yield.
    For the reasons discussed in more detail in the Background section 
above, FLPMA allows the BLM to balance the need for resource 
conservation alongside other uses as part of managing under principles 
of multiple use and sustained yield. In turn, FLPMA vests the BLM with 
broad authority to incorporate appropriate mitigation in its land use 
planning and to require other users of the public land to avoid, 
minimize, and compensate for resource impacts, as appropriate, from 
authorized uses. 43 U.S.C. 1712I, 1732(a)-(b); see also M-37039, The 
Bureau of Land Management's Authority to Address Impacts of its Land 
Use Authorizations through Mitigation, at 11-22 (Dec. 21, 2016) 
(reinstated by M-37075 (Apr. 15, 2022)) (``[The] BLM's charge under 
FLPMA to manage public lands based on principles of multiple use and 
sustained yield supports use of mitigation. The authority to evaluate 
and impose mitigation arises out of the broad authority FLPMA vests in 
the BLM to pursue congressional goals . . . for public lands. The BLM 
can evaluate and require mitigation through both the land use planning 
process and site-specific authorizations.'').
    There were a number of comments regarding how and where the BLM 
would deploy mitigation under the proposed rule. Commenters recommended 
that the BLM amend the rule to require mitigation only to the extent 
practicable or reasonable and highlighted the need for the BLM to 
coordinate mitigation with local and State conservation plans. Many 
commenters were concerned that the use of compensatory mitigation would 
allow for development in sensitive areas that would otherwise not be 
allowed, such as ACECs or intact landscapes, and recommended that 
compensation should not be used to justify activities that could 
degrade these areas. Some commenters called on the BLM to require that 
compensatory mitigation measures ensure a net benefit for biodiversity, 
adhering to established international principles, or avoid the net loss 
of ecologically intact land. Some commenters narrowed their concern to 
how compensatory mitigation may specifically impact recreation, which 
can significantly degrade public resources, and urged that the rule not 
apply compensatory mitigation requirements to nonprofit organizations, 
and that ongoing trail use not be subject to such requirements.
    In response to these comments, the BLM added mitigation principles 
to the final rule to provide a framework for how mitigation will be 
deployed under the rule, including through the mitigation hierarchy and 
mitigation leasing. The principles are consistent with agency policy 
and guidance for implementing mitigation, such as developing landscape-
scale mitigation strategies, requiring performance criteria and 
effectiveness monitoring for mitigation programs and projects, and 
ensuring that compensatory mitigation is durable, additional, timely, 
and commensurate with adverse impacts. The final rule also confirms 
that the BLM will adhere to the mitigation hierarchy and that for 
important, scarce, or sensitive resources, the BLM will apply the 
mitigation hierarchy in the manner that achieves the maximum benefit to 
the impacted resource.
    Many commenters emphasized the necessity of ensuring that any 
mitigation credits are based on completed restoration efforts that are 
actively functioning as habitat for native species impacted by 
development. These

[[Page 40329]]

commenters objected to permitting any proposal to issue credits based 
on future promises of restoration. Another commenter advocated for 
third-party mitigation fund holders to facilitate restoration on BLM-
managed lands, specifically highlighting the role of private sector 
mitigation providers, including the ability for private third-party 
providers to hold mitigation funds. In response to comments, the BLM 
clarified the types of third-party entities it will allow to hold 
mitigation funds through a formal agreement. The mitigation fund holder 
could be a State or local government, if, among other requirements, 
that entity can demonstrate to the satisfaction of the BLM that it is 
acting as a fiduciary for the benefit of the mitigation project and 
site. The section also allows for a mitigation fund holder to be an 
entity that, among other requirements, qualifies for tax-exempt status 
and provides evidence it can successfully hold and manage mitigation 
accounts.

D. Land Health

    Comments on aspects of land health in the proposed rule were 
diverse and focused on: BLM's capacity to evaluate land health across 
all BLM managed lands, the land health fundamentals, standards, and 
guidelines; the connection between land health and ecosystem 
resilience; the application of land health in resource decision-making; 
and questions about the role of Resource Advisory Councils.
    Several commenters conveyed support for the proposal to apply the 
fundamentals of land health and related standards and guidelines to all 
BLM-managed public lands and uses, expanding them beyond their original 
application to rangelands and grazing.
    In response to comments, the rule includes streamlined assessment 
processes applicable at broad spatial scales and a subsequent timeline 
to review whether such standards remain sufficient.
    Commenters provided different recommendations as to how standards 
and guidelines should be updated. Some suggestions included tying new 
standards to quantifiable ecologically based performance metrics, 
specific ecoregions, specific resources, or local ecosystems and 
conditions. Whatever the outcome of new standards, many commenters 
conveyed a need for the BLM to provide the public the rationale for new 
standards and guidelines and clarity as to how they will be applied.
    In response to comments, the final rule includes language adopting 
consistent national land health standards and an allowance to modify 
national standards to address unique and rare geographic needs.
    A few commenters recommended the BLM use flexibility in land health 
standards to accommodate the diverse array of land uses, especially 
nonrenewable resources and those with potential surface-disturbing 
impacts. Various commenters expressed concern that expanding 
application of land health was unworkable as the BLM cannot meet the 
current demands for conducting land health analysis under 43 CFR 
Subpart 4180. To address this, commenters provided several 
recommendations, including setting appropriate monitoring frequencies, 
scales, and thresholds, with timelines for corrective actions and 
milestones. Additionally, commenters supported applying land health at 
the watershed rather than narrower or smaller scales (allotments, 
projects, etc.).
    In response to comments, the final rule directs the BLM to 
establish nationally consistent land health standards and indicators 
and tiers land health standards directly from the fundamentals of land 
health in order to apply land health standards to a diverse array of 
land uses. Authorized officers must adopt the national standards and 
may also adopt geographically specific standards when necessary to 
evaluate rare or unique habitat or ecosystem types, such as permafrost. 
To address concerns about the BLM's capacity to apply land health 
standards to all program areas, the final rule allows field offices to 
use watershed condition assessments (completed every 10 years) as the 
baseline for land health evaluations. With watershed condition 
assessments, land health is assessed at a broad spatial and temporal 
scale, and may be supplemented by locally specific data.
    Some commenters were confused about the role of the Resource 
Advisory Councils in the development of new standards and guidelines 
and sought clarification. Although the BLM engages with its Resource 
Advisory Councils on a wide range of issues, the rule does not require 
the engagement of Resource Advisory Councils in the development and 
supplementation of standards and guidelines.

E. Areas of Critical Environmental Concern

    Various commenters advocated for strengthening the ACEC relevance 
and importance criteria, particularly by including habitat connectivity 
and biodiversity considerations, to ensure the protection of natural, 
cultural, and scenic resources. Additionally, many comments highlighted 
the importance of old-growth and mature forests and requested explicit 
language in the rule to protect and restore old-growth conditions 
through ACEC designation. The final rule establishes that a historic, 
cultural, or scenic value; a fish or wildlife resource; or a natural 
system or process has importance if it contributes to ecosystem 
resilience, landscape intactness, or habitat connectivity, among other 
importance criteria. While the final rule does not explicitly 
contemplate protection of old-growth forest conditions through ACEC 
designation, the rule specifically enables that management decision by 
identifying ecosystem resilience and landscape intactness as elements 
of the ACEC importance criterion. Other provisions in the final rule 
note that old-growth forests contribute to ecosystem resilience and 
landscape intactness, such as Sec. Sec.  6101.2 and 6102.1.
    Commenters recommended the final rule mandate more stringent 
management of designated ACECs in order to ensure protection of 
relevant and important values identified by the BLM. In response to 
these comments, the BLM added a management standard to the final rule 
to ensure ACEC values are appropriately managed for protection and 
clarified the presumption that a potential ACEC that meets all three 
criteria of relevance, importance, and needing special management 
attention will be designated in the land use plan.
    Commenters raised concerns about ACEC nominations occurring outside 
of land use planning processes and that temporary management of 
potential ACECs would delay other land use authorizations such as 
renewable energy projects. Questions were raised about the 
responsibility to notify the public of temporary management decisions 
and whether temporary management must conform to the current resource 
management plan. Commenters were also generally interested in ensuring 
stakeholders and the public have adequate opportunities to participate 
in ACEC designation decisions.
    Generally, the BLM addresses ACECs in the land use planning 
process. This is because designation of ACECs is intended to be a 
proactive land management decision to enhance management of important 
lands and resources. Such decisions should be made while also 
considering other potential management decisions that may affect those 
same lands and resources. In rarer situations, the BLM may identify a 
potential ACEC outside of the planning process and find that it needs 
special management attention to

[[Page 40330]]

ensure proper stewardship of resources and values the agency is charged 
with managing. In both contexts, the BLM must find that the lands at 
issue not only possess relevant and important values but also require 
special management attention. The final element of the standard for 
ACEC designation means more than finding special management attention 
will benefit the identified values; rather, it requires a finding that 
special management is necessary for their stewardship.
    Within the land use planning process, the BLM has many tools at its 
disposal to provide necessary management of resources, ranging from 
special designation to more narrow management prescriptions. Outside of 
the planning process, temporary management of a potential ACEC may be 
the best option for addressing an area that has relevant and important 
values and requires special management attention to protect them. In 
those situations, under the final rule and consistent with existing 
guidance, the BLM may at the agency's discretion implement temporary 
management to protect the relevant and important values from 
irreparable damage until the BLM determines whether to designate the 
potential ACEC through a land use planning process. When implementing 
temporary management, the BLM would comply with applicable laws and 
regulations, notify the public, and reevaluate the decision 
periodically.
    The BLM has the authority and the responsibility to mitigate 
impacts to public land resources from land use authorizations, 
including by avoiding, minimizing, and offsetting those impacts, 
independent of ACEC designation status. 43 U.S.C. 1732(a)-(b). 
Therefore, the BLM does not expect that an ACEC nomination or temporary 
management process will increase conflict where resources may be 
impacted by development proposals. Rather, the BLM intends these 
provisions of the rule to provide a proactive pathway for managing 
relevant and important values that require special management attention 
in the limited circumstances in which these values are identified 
outside of the planning process.
    For example, if the BLM is evaluating a proposed development 
project and has not incorporated consideration of new ACEC designations 
into the NEPA process for that project, then it is anticipated that the 
BLM, consistent with existing guidance, would analyze potential impacts 
to resources and apply the mitigation hierarchy to address those 
impacts through the NEPA process rather than considering new ACEC 
designations as part of the ongoing NEPA process. This rule would not 
require the authorized officer to analyze ACEC nominations during that 
NEPA process. Rather, the State Director would have the discretion to 
determine when to evaluate ACEC nominations; the State Director could 
elect to defer that evaluation to an upcoming planning process. The 
State Director also would have the discretion to apply temporary 
management in the area, but only after determining that the area meets 
the relevance and importance criteria and that special management is 
necessary to protect the area's relevant and important values from 
irreparable damage. In other words, the State Director's discretion 
would include: continuing to process the project by deferring analysis 
of ACEC nominations; using the data related to ACEC nominations to 
inform the project analysis; and processing ACEC nominations and 
incorporating any temporary management into the project evaluation. In 
all circumstances, the BLM has the discretion to consider ACEC 
nominations and take steps to implement temporary management for 
relevant and important values or undertake a plan amendment process to 
designate new ACECs as outlined in the final rule. The BLM plans to 
provide additional guidance on situations in which an ACEC nomination 
overlaps with a pending development project application.
    The final rule also emphasizes the ample opportunities for public 
notice and comment on the ACEC designation process through the resource 
management planning process, which requires robust public and 
stakeholder engagement as well as cooperation with local governments 
and consultation with Tribal governments (43 CFR 1610.2). The final 
rule confirms that proposed and existing ACECs being addressed by a 
resource management plan or a plan amendment will be identified in all 
applicable Federal Register Notices and in public outreach materials. 
The BLM will not, however, be required to continue to produce separate 
notices specific to ACECs which the BLM found to be duplicative and not 
in the public interest. The BLM will continue to provide the public 
with an opportunity to comment on proposed and existing ACECs through 
the land use planning and associated NEPA requirements for public 
involvement.

F. Intact Landscapes

    Many commenters requested clarity on the rule provisions related to 
intactness, including how intact landscapes would be identified and 
managed. Comments recommended that a comprehensive inventory of intact 
landscapes be part of the land use planning process and that the rule 
make stronger commitments to prioritizing the conservation and 
protection of intact landscapes in order to advance the purpose of 
supporting ecosystem resilience. Additionally, commenters stressed the 
importance of incorporating community input.
    Some commenters emphasized the need to consider other potential 
uses, such as renewable energy development, and the multiple use 
management approach when determining whether to manage certain 
landscapes for intactness. Several comments addressed the importance of 
acknowledging the human history of intact landscapes and incorporating 
the concept of cultural landscapes, as well as considering co-
stewardship agreements for identified landscapes.
    In response to these comments, the BLM updated the rule to clarify 
that ``landscape intactness'' is part of the resource inventory that is 
to be maintained and considered in accordance with FLPMA. The final 
rule also clarifies the land use planning process for this resource, 
which includes using the intactness inventory to identify and delineate 
intact landscapes, evaluating alternatives for managing the intact 
landscapes, and making management decisions for at least some of the 
intact landscapes or portions of intact landscapes that conserve their 
intactness. Habitat connectivity and migration corridor data would 
inform identification and management of intact landscapes, and the BLM 
would seek opportunities for Tribal co-stewardship in managing and 
protecting intact landscapes. The BLM anticipates that intact 
landscapes may vary widely in size and that not every acre of an intact 
landscape will be managed the same way, as the management focus would 
be on maintaining function of intact landscapes while facilitating 
multiple use and supporting sustained yield.
    The identification of intact landscapes in the land use planning 
process would not necessarily preclude land use authorizations that 
would impair their intactness; rather the BLM would make management 
decisions for each landscape that would determine allowable uses. Some 
development could be compatible with management to conserve intactness, 
and intact landscapes may serve as desirable areas for restoration and 
mitigation leases. Once an intact landscape has been identified in a 
land use planning

[[Page 40331]]

process, the BLM would consider that resource and analyze potential 
impacts to it in the planning process and NEPA analysis to evaluate 
proposed uses, regardless of management decisions for the landscape, 
consistent with NEPA's requirement that the BLM analyze potential 
impacts from proposed actions.

G. Grazing

    Commenters expressed concern regarding what they considered to be 
broad and ambiguous interpretations of terms ``conservation,'' ``intact 
landscapes,'' and ``ecosystem resilience,'' and for the potential for 
the proposed rule to limit or prohibit consumptive uses, such as 
grazing. The comments highlighted the need for clarity and consistency 
in definitions and objectives, suggesting modifications to acknowledge 
existing uses permitted under FLPMA.
    The BLM also received a significant number of comments questioning 
how conservation leases relate to authorized grazing. Many comments 
highlighted the need to clarify how proposed conservation leases will 
interact with grazing management, particularly in cases where grazing 
may conflict with restoration goals.
    In response to comments, the BLM made changes to the leasing 
section of the final rule. Those changes are summarized in the 
``Section-by-Section Discussion of the Final Rule and Revisions from 
the Proposed Rule'' section and in the ``Conservation Leasing'' section 
of this discussion. Importantly, the BLM clarified that if proposed 
activities in a restoration or mitigation lease would conflict with 
existing authorizations, such as if a specific type of restoration 
would not be compatible with grazing and the proposed location is 
already subject to a grazing authorization, then a lease authorizing 
that type of restoration could not be issued on those particular lands. 
Additionally, the final rule elevates proposals for leases that can 
demonstrate collaboration with existing permittees, leaseholders, and 
adjacent land managers or owners and those that have support from local 
communities.
    Commenters expressed different views as to whether grazing can be 
used as a land health solution, with some noting that grazing should be 
used as a land health management tool, while others stated that any use 
of grazing operations by the BLM to promote land health standards would 
likely preclude achieving land health goals. Some commenters argued 
that managed grazing can in fact achieve land health standards and that 
specific practices, such as targeted grazing, have been used to create 
fire breaks, manage invasive species, and promote land health. Other 
commenters argued that livestock grazing is incompatible with 
restoration and that grazing should be eliminated in areas undergoing 
restoration. This rule is not establishing or revising regulations 
governing the BLM's grazing program and does not contemplate using or 
not using grazing as a land health management tool. As previously 
discussed, conservation takes many forms on public lands, including in 
the ways grazing and many other uses are carried out. This rule focuses 
on conservation as a land use within the multiple use framework and 
develops the toolbox for conservation use that enables some of the many 
conservation strategies the agency employs to steward the public lands 
for multiple use and sustained yield. Grazing as a management tool may 
fit within these strategies.
    Many commenters emphasized the impact that livestock grazing has 
had on BLM-managed public lands and the need for the BLM to commit to 
its responsibility under 43 CFR subpart 4180 to monitor achievement of 
rangeland health standards and manage for proper functioning 
conditions. One commenter noted that when an allotment fails to meet 
the standards, changes in grazing practices must be instituted to 
restore rangeland health. The BLM is not revising subpart 4180 as part 
of this rulemaking.

H. Recreation

    Many commenters emphasized that outdoor recreation is dependent on 
healthy public lands and waters that provide desirable recreation 
experiences, which in turn support regional economic growth and help 
Americans connect with their public lands. They further noted that 
climate change is having a particular impact on outdoor recreation 
through drought and catastrophic wildfire, highlighting the need for 
resilient public lands that can continue to provide recreation 
opportunities in a changing future. These commenters requested the rule 
explicitly recognize the tie between landscape health and outdoor 
recreation and acknowledge that sustainable recreation is compatible 
with conservation use.
    In response to comments, the final rule includes a new objective 
to: ``Provide for healthy lands and waters that support sustainable 
outdoor recreation experiences for current and future generations.'' 
The BLM views sustainable recreation as being compatible with 
conservation management, including specifically with restoration and 
mitigation leasing, protection of intact landscapes, management for 
land health, designation of ACECs, and other principles and management 
actions provided for in the rule. Furthermore, the BLM anticipates that 
outdoor recreation would benefit from these conservation measures and 
would be considered a reason to protect and restore certain landscapes. 
The additional objective at Sec.  6101.2(g) aims to reflect this 
intent. The final rule does not specifically address recreation in more 
detail because the rule is not intended to establish regulations 
governing recreation use.
    Some commenters raised concerns that the rule would reduce the 
amount of public land available for outdoor recreation. The rule would 
not change plans, policies, or programs governing recreation activities 
on public lands; recreation management would still be determined at the 
local level through land use planning and site-specific recreation 
management actions such as developed recreation sites, transportation 
system routes, or trails. As the BLM implements the rule, recreation 
management decisions will incorporate the objectives and principles set 
forth in the rule to support landscape health and ecosystem resilience. 
The rule is not intended to prevent or decrease outdoor recreation use; 
rather it ensures that recreation on public lands can be managed and 
grow sustainably while benefiting from the conservation of healthy 
lands and water.

I. Renewable Energy

    Commenters raised concerns about the potential conflicts that could 
arise between the proposed rule and the BLM's ability to manage and 
promote renewable energy development. In response to comments, the BLM 
clarified mitigation language that would allow for renewable energy 
siting and development, or other kinds of projects, even when that 
development produces unavoidable impacts. Establishing methods to 
ensure impacts can be offset and expanding the ability to site 
compensatory mitigation on public lands through mitigation leases 
creates more opportunity to permit use while accounting for the 
unavoidable impacts of such use.
    Commenters argued that application of land health standards to 
renewable energy projects as well as changes to identification and 
designation of ACECs may have the effect of significantly diminishing 
the BLM's ability to identify locations where it can permit renewable 
energy installations and

[[Page 40332]]

associated infrastructure. As noted in the discussion of the BLM's 
response to comments on ACECs, the BLM does not expect that ACEC 
designations or the potential for temporary management of proposed 
ACECs will increase conflict where resources may be impacted by 
development proposals. Rather, the BLM intends these provisions of the 
rule to provide a proactive pathway for managing relevant and important 
values that require special management attention, including in the 
limited circumstances in which these values are identified outside of 
the planning process.
    Lastly, commenters conveyed concern that the proposed rule rested 
too much decision-making authority on BLM staff over a number of 
aspects of the rule and that such authority should reside with BLM 
State Directors. In response, the BLM clarified the responsibilities of 
Field Managers and State Directors in the ACEC section.

J. Cultural Resource Management

    Some comments discussed the connection between cultural values and 
ecosystem resilience and requested an acknowledgement of this 
connection and clarity for whether and how the rule would incorporate 
cultural values or otherwise apply to cultural resource management. 
Commenters requested that the BLM consider how conservation strategies 
included in the rule intersect with cultural resources. Specifically, 
commenters recommended that the rule address American Indian 
contributions to stewarding the landscapes that the BLM now manages as 
public lands and may conserve through implementation of this rule, 
including Indigenous Knowledge and practices handed down over 
millennia. Commenters also recommended that lands that contain areas of 
sacred and ceremonial significance to Tribes should not be eligible for 
conservation leasing unless the purpose of the lease is directly 
related to those resources.
    The BLM is committed to working with Tribes in the management of 
the public lands, which are the ancestral homelands of American Indian 
and Alaska Native Tribes. The BLM recognizes Indigenous Peoples have 
interacted with and stewarded the lands now managed as public lands 
since time immemorial. This human presence and stewardship continue to 
influence the lands addressed in the rule, including intact landscapes 
and ACECs.
    Cultural resources can be and often are an essential component of 
functioning and productive ecosystems, and natural components of 
ecosystems can also be cultural resources. Some of the BLM's most 
intact and resilient ecosystems are often also locations with a high 
probability of containing cultural resources. Cultural and natural 
values of landscapes co-exist as reasons to protect and manage these 
landscapes, emphasizing the importance of Indigenous Knowledge and co-
stewardship.
    Actions and decisions aimed at restoring, maintaining, and 
conserving ecosystems and landscapes may inadvertently result in 
impacts to cultural resources. All such undertakings will be subject to 
section 106 of the NHPA, as well as NEPA. Through the section 106 
process, the BLM will, in consultation with Tribes, State and Tribal 
Historic Preservation Officers, and interested parties, identify, 
evaluate, and resolve any adverse effects on historic properties. Any 
potential adverse effects to historic properties will be avoided, 
minimized, or otherwise mitigated in accordance with law, regulation, 
and policy. Effects to cultural resources that are not identified as 
historic properties under the NHPA will be considered and managed 
through land use plans and the NEPA process. In addition, the BLM will 
strive to consider and implement the new Best Practices Guide for 
Federal Agencies Regarding Tribal and Native Hawaiian Sacred Sites.\16\
---------------------------------------------------------------------------

    \16\ Working Group of the Memorandum of Understanding Regarding 
Interagency Coordination and Collaboration for the Protection of 
Indigenous Sacred Sites (2023), https://www.bia.gov/sites/default/files/media_document/sacred_sites_guide_508_2023-1205.pdf (providing 
guidance on implementation of Executive Orders 13175, 13007, and 
14096, and related policies).
---------------------------------------------------------------------------

K. Mature and Old-Growth Forests

    Many comments were received emphasizing the need to protect old-
growth and mature forests as part of meeting the rule's stated purpose 
of supporting ecosystem resilience on public lands. Commenters 
recommended adding provisions to the rule to establish emphasis areas 
for old-growth and mature forests, limit or prohibit tree cutting on 
BLM-managed lands, facilitate designation of old-growth forests as 
ACECs, and focus on climate sustainable logging. Commenters highlighted 
the scientific and social values of old-growth and mature forests and 
requested explicit language in the rule to protect these valuable 
ecosystems consistent with Executive Order 14072.
    Executive Order 14072, Strengthening the Nation's Forests, 
Communities, and Local Economies, calls for defining, identifying, and 
inventorying the nation's old and mature forests and stewarding them 
for future generations to provide clean air and water, sustain plant 
and animal life, and respect their special importance to Tribal 
Nations, consistent with applicable law. The BLM is working with the 
U.S. Forest Service to implement the provisions in Executive Order 
14072 related to mature and old-growth forests. In April 2023, the BLM 
and U.S. Forest Service released a definition framework and initial 
inventory of mature and old-growth forests on Federal lands, and the 
agencies are now analyzing threats to those forests pursuant to the 
Executive Order. The initial inventory identified 8.3 million acres of 
old-growth and 12.7 million acres of mature forest on BLM-administered 
lands, the majority of which are pinyon and juniper woodlands. Mature 
and old-growth forests and woodlands contribute to ecosystem resilience 
by providing wildlife habitat, clean water, carbon storage, and 
landscape intactness. They also have important social and cultural 
values.
    The final rule facilitates conservation of BLM-managed forests and 
woodlands through multiple provisions, including those related to 
identification and protection of intact landscapes; conservation tools 
to protect certain lands and resources through land use planning; 
avoiding authorizing uses of the public lands that permanently impair 
ecosystem resilience; and co-stewardship opportunities with Tribes. In 
order to clarify this intent, the final rule specifically identifies 
conservation of old-growth forests within the objectives of the 
regulation. Because this is a procedural rule, establishing emphasis 
areas or other site-specific protections for old-growth forests is 
outside the scope of the rule.

L. Wild Horses and Burros

    The BLM received comments on using the rule to change wild horse 
and burro management on public lands. Commenters recommended 
classifying wild horses and burros as a use of public lands, requiring 
the BLM to show that removal of livestock could not achieve the same 
objective as removal of wild horses and burros, restricting livestock 
grazing to reduce methane emissions and provide more forage for wild 
horses and burros, and allowing restoration and mitigation leases to be 
used to protect wild horse and burro habitat.
    Management of wild horses and burros is governed by the Wild Free-
Roaming Horses and Burros Act of 1971, as amended, and its implementing 
regulations (43 CFR part 4700). Wild horses and burros are managed in 
the

[[Page 40333]]

areas where they are found, and decisions on herd management are made 
through the BLM's land use planning process. This rule does not 
authorize or mandate decisions to manage wild horses and burros. The 
rule does require the use of high-quality information that promotes 
reasoned, fact-based agency decisions in making land use allocations 
and other land use authorizations, including grazing authorizations. 
Restoration and mitigation leases are narrowly defined tools for 
restoring degraded landscapes or compensating for impacts of 
development and are not appropriate mechanisms for protecting wild 
horse and burro habitat.

M. NEPA Compliance for the Rule

    A number of comments objected to the BLM's intent to rely on a 
categorical exclusion to comply with NEPA and called on the BLM to 
instead prepare an environmental assessment or environmental impact 
statement under NEPA.
    The BLM has determined that the categorical exclusion set out at 43 
CFR 46.210(i) applies to this rulemaking. That provision excludes from 
NEPA analysis and review actions that are ``of an administrative, 
financial, legal, technical, or procedural nature; or whose 
environmental effects are too broad, speculative, or conjectural to 
lend themselves to meaningful analysis and will later be subject to the 
NEPA process, either collectively or case-by-case.'' That categorical 
exclusion applies because the rule sets out a framework but is not 
self-executing in that it does not itself make substantive changes on 
the ground and will not (absent future decisions that implement the 
rule) restrict the BLM's discretion to undertake or authorize future 
on-the-ground action; thus, the rule is administrative or procedural in 
nature. Any future actions, including both land use planning and 
individual project-level decisions, including decisions to issue a 
restoration or mitigation lease, will be subject to the appropriate 
level of NEPA review at the time of that decision. Where the BLM will 
undertake such actions, which of the various tools provided in this 
rule it will use when doing so, and the particular methods and 
activities it will employ are unknown at this time, making the 
environmental effects associated with those future actions too 
speculative or conjectural to meaningfully evaluate now. The BLM has 
also determined that none of the extraordinary circumstances identified 
at 43 CFR 46.215 applies to this rulemaking.

N. Inventory, Assessment, and Monitoring

    Public comments recommended that monitoring data and analyses 
should be made public to promote transparent decision processes. 
Commenters recommended emphasis on particular monitoring approaches and 
discouraged use of other approaches and requested more details on the 
monitoring implementation process and how it would tie to decision-
making across different types of decisions. Commenters also recommended 
adding a process for monitoring prioritization.
    Many commenters asked for clarification on watershed condition 
classifications, renamed ``watershed condition assessments'' in the 
final rule, including who would complete them and how often, what data 
they would include, whether outside partners would be engaged, and how 
they would tie to decision-making. Many recommended a nationally 
consistent process for completing watershed condition assessments in 
order to ensure that they were efficient and effective. Some asked how 
watershed condition assessments would interact with and inform the BLM 
land health process. Several questioned whether additional assessments 
were needed.
    In response to public comments, the final rule clarifies that a 
focus of the rule is monitoring of infrastructure and renewable 
resources. It states that inventory, monitoring, and assessment 
information will be publicly available (currently, at the BLM 
Geospatial Business Platform Hub, https://gbp-blm-egis.hub.arcgis.com/
), consistent with the Open Government Data Act, section 202(b). The 
final rule defines watershed condition assessments and specifies that 
they will be created using a consistent process and standardized data. 
The final rule recommends that high-quality information, including 
monitoring and watershed condition assessments, be used to inform many 
different types of decisions in the rule. Further details regarding 
inventory, assessment, and monitoring, including watershed condition 
assessments, may be addressed in implementation guidance.
    Some comments questioned whether the monitoring provisions of the 
rule apply to cultural and paleontological resources. As stated in the 
Authority section of the final rule, implementation of the rule will be 
subject to and must be undertaken consistent with all applicable laws, 
which would include the NHPA and the PRPA.

O. Economic Analysis and Compliance With the Regulatory Flexibility Act

    Many commenters insisted that the Regulatory Flexibility Act (RFA) 
required the BLM to prepare an initial regulatory flexibility analysis 
and, by extension, that this final rule would require a final 
regulatory flexibility analysis. Those commenters requested specific 
documentation and details of the economic impact on small businesses 
and other entities. Commenters stated that the BLM's certification that 
the rule would not have a significant economic impact on a substantial 
number of small entities lacked a proper factual basis.
    The BLM disagrees with commenters' assertion that the RFA required 
for the proposed rule and so requires for this final rule a regulatory 
flexibility analysis. The BLM certified at the proposed rule stage and 
certifies again in promulgating this final rule that the rule will not 
have a significant economic impact on a substantial number of small 
entities. Under the Small Business Administration's (SBA) Guide for 
Federal Agencies to Comply with the Regulatory Flexibility Act, when 
certifying that a regulatory flexibility analysis is not required, the 
``certification should contain a description of the number of affected 
entities and the size of the economic impacts and why either the number 
of entities or the size of the impacts justifies the certification.'' 
Here, the BLM has undertaken an economic threshold analysis and 
concluded that the magnitude of the impact on any individual or group, 
including small entities, is expected to be negligible (Economic 
Threshold Analysis). In support of this determination, the BLM followed 
SBA's certification checklist items.
    The SBA's guidelines provide, ``The RFA does not define 
`significant impact' or `substantial number,' and it is the agencies' 
discretion on where to set these thresholds on a rule-to-rule basis 
based on their judgment.'' The BLM exercised its discretion to conclude 
that an initial regulatory flexibility analysis was not required for 
the proposed rule and that a final regulatory flexibility analysis is 
not required now.

V. Procedural Matters

Regulatory Planning and Review (Executive Orders 12866, 13563 and 
14094)

    Executive Order (``E.O.'') 12866, ``Regulatory Planning and 
Review,'' as supplemented and reaffirmed by E.O. 13563, ``Improving 
Regulation and Regulatory Review,'' 76 FR 3821 (Jan.

[[Page 40334]]

21, 2011) and amended by E.O. 14094, ``Modernizing Regulatory Review,'' 
88 FR 21879 (April 11, 2023), requires agencies, to the extent 
permitted by law, to (1) propose or adopt a regulation only upon a 
reasoned determination that its benefits justify its costs (recognizing 
that some benefits and costs are difficult to quantify); (2) tailor 
regulations to impose the least burden on society, consistent with 
obtaining regulatory objectives, taking into account, among other 
things, and to the extent practicable, the costs of cumulative 
regulations; (3) select, in choosing among alternative regulatory 
approaches, those approaches that maximize net benefits (including 
potential economic, environmental, public health and safety, and other 
advantages; distributive impacts; and equity); (4) to the extent 
feasible, specify performance objectives, rather than specifying the 
behavior or manner of compliance that regulated entities must adopt; 
and (5) identify and assess available alternatives to direct 
regulation, including providing economic incentives to encourage the 
desired behavior, such as user fees or marketable permits, or providing 
information upon which choices can be made by the public. E.O. 12866, 
as amended by E.O. 14094, provides that the Office of Information and 
Regulatory Affairs (``OIRA'') in the Office of Management and Budget 
(``OMB'') will review all significant rules. Section 6(a) of E.O. 12866 
also requires agencies to submit ``significant regulatory actions'' to 
OIRA for review. OIRA has determined that this final regulatory action 
constitutes a ``significant regulatory action'' within the scope of 
E.O. 12866.
    E.O. 13563 reaffirms the principles of E.O. 12866 while calling for 
improvements in the Nation's regulatory system to promote 
predictability, reduce uncertainty, and use the best, most innovative, 
and least burdensome tools for achieving regulatory ends. The E.O. 
directs agencies to consider regulatory approaches that reduce burdens 
and maintain flexibility and freedom of choice for the public where 
these approaches are relevant, feasible, and consistent with regulatory 
objectives. E.O. 13563 emphasizes further that regulations must be 
based on the best available science and that the rule making process 
must allow for public participation and an open exchange of ideas. The 
BLM has developed this rule in a manner consistent with these 
requirements.

Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.) 
generally requires that Federal agencies prepare a regulatory 
flexibility analysis for rules subject to the ``notice-and-comment'' 
rulemaking requirements found in the Administrative Procedure Act (5 
U.S.C. 551 et seq.), if the rule would have a significant economic 
impact, whether detrimental or beneficial, on a substantial number of 
small entities. See 5 U.S.C. 601-612. Congress enacted the RFA to 
ensure that government regulations do not unnecessarily or 
disproportionately burden small entities. Small entities include small 
businesses, small governmental jurisdictions, and small not-for-profit 
enterprises.
    For the purpose of conducting its review pursuant to the RFA, the 
BLM certifies that the rule would not have a ``significant economic 
impact on a substantial number of small entities,'' as that phrase is 
used in 5 U.S.C. 605. The rule does not affect any existing use of 
public lands, nor does it impose restrictions on future use. The rule 
modifies BLM decision-making processes and does not directly regulate 
any industry, but it may affect industries related to environmental 
restoration or mitigation activity or other sectors that rely on public 
lands management. The BLM does not expect those impacts to be 
significant. See the Economic Analysis, Potential Impact on Small 
Entities, for more information.

Congressional Review Act (CRA)

    Pursuant to subtitle E of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (also known as the Congressional Review Act), the 
Office of Information and Regulatory Affairs has determined that this 
rule does not meet the criteria set forth in 5 U.S.C. 804(2). This 
rule:
    a. Does not have an annual effect on the economy of $100 million or 
more. The BLM did not estimate the annual benefits that this rule would 
provide to the economy. Please see the Economic Analysis for this rule 
for a more detailed discussion.
    b. Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions. The rule would benefit small 
businesses by streamlining the BLM's processes.
    c. Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises. The 
rule would not have adverse effects on any of these criteria.

Unfunded Mandates Reform Act (UMRA)

    This rule does not impose an unfunded mandate on State, local, or 
Tribal governments, or the private sector of more than $100 million per 
year. The rule does not have a significant or unique effect on State, 
local, or tribal governments, or the private sector. Under the Unfunded 
Mandates Reform Act (UMRA) (2 U.S.C. 1531 et seq.), agencies must 
prepare a written statement about benefits and costs prior to issuing a 
proposed or final rule that may result in aggregate expenditure by 
State, local, and tribal governments, or the private sector, of $100 
million or more in any 1 year.
    This rule is not subject to those requirements of the UMRA. The 
rule does not contain a Federal mandate that may result in expenditures 
of $100 million or more for State, local, and tribal governments, in 
the aggregate, or to the private sector in any one year. The rule would 
not significantly or uniquely affect small governments. A statement 
containing the information required by the UMRA is not required.

Government Actions and Interference With Constitutionally Protected 
Property Rights Takings (E.O 12630)

    This rule does not effect a taking of private property or otherwise 
have taking implications under E.O. 12630. Section 2(a) of E.O. 12630 
identifies policies that do not have takings implications, such as 
those that abolish regulations, discontinue governmental programs, or 
modify regulations in a manner that lessens interference with the use 
of private property. The rule will not interfere with private property. 
A takings implication assessment is not required.

Federalism (E.O 13132)

    Under the criteria in Section 1 of E.O. 13132, this rule does not 
have sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement. It does not have substantial 
direct effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.
    The BLM received broad and general comments suggesting that E.O. 
13132 requires preparation of a federalism summary impact statement 
with respect to this rule. In particular, some comments raised concerns 
that conservation leases (now titled

[[Page 40335]]

restoration and mitigation leases) could infringe on state and local 
authority. Executive Order 13132 generally prohibits Federal agencies 
from promulgating rules that might have a substantial direct effect on 
states or local governments, on the relationship between Federal and 
State governments, or on the distribution of power and responsibilities 
among the various levels of government, without meeting certain 
conditions, such as consulting with elected State and local government 
officials early in the process. In particular, administrative rules may 
not create substantial direct compliance costs for state or local 
governments that are not otherwise required by statute and may not 
expressly or impliedly preempt state law without Federal agencies 
undertaking additional processes. This rule will inform the BLM's 
management approach on federal land in the several states where BLM 
manages public land, but nothing in the rule, including its provisions 
for restoration and mitigation leasing, preempts state law or requires 
state or local governments to comply with specific provisions. Nor does 
the rule modify let alone reduce the role, under FLPMA, of state and 
local governments in land use planning. As a result, a federalism 
summary impact statement is not required.

Civil Justice Reform (E.O 12988)

    This rule complies with the requirements of E.O. 12988. 
Specifically, this rule:
    a. Meets the criteria of Section 3(a) requiring that all 
regulations be reviewed to eliminate errors and ambiguity and be 
written to minimize litigation; and
    b. Meets the criteria of Section 3(b)(2) requiring that all 
regulations be written in clear language and contain clear legal 
standards.

Consultation and Coordination With Indian Tribes (E.O 13175 and 
Departmental Policy)

    The Department of the Interior (DOI) endeavors to maintain and 
strengthen its government-to-government relationship with Indian Tribes 
through a commitment to consultation with Indian Tribes and recognition 
of their right to self-governance and tribal sovereignty. We have 
evaluated this rule under the DOI's consultation policy and under the 
criteria in E.O. 13175 and have determined that the rule has tribal 
implications.
    In conformance with the Secretary's policy on Tribal consultation, 
the BLM sent letters to all Tribes at the beginning of the rulemaking 
process informing them of the proposed rule and inviting them to engage 
with BLM on their thoughts and concerns. The BLM received input from 
Tribal governments, Alaska Native Corporations, and Tribal entities in 
comments on the proposed rule, as well as in other meetings that 
included a broader range of topics, and incorporated their input in 
drafting the final rule. Consistent with the DOI's consultation policy 
(52 Departmental Manual 4) and the criteria in E.O. 13175, the BLM will 
continue to consult with federally recognized Indian Tribes on any 
proposal that may have Tribal implications.

Paperwork Reduction Act

    The Paperwork Reduction Act (PRA) (44 U.S.C. 3501-3521) generally 
provides that an agency may not conduct or sponsor, and notwithstanding 
any other provision of law a person is not required to respond to, a 
collection of information, unless it displays a currently valid Office 
of Management and Budget (OMB) control number. This rule contains 
information collection requirements that are subject to review by the 
OMB under the PRA. Collections of information include any request or 
requirement that persons obtain, maintain, retain, or report 
information to an agency, or disclose information to a third party or 
to the public (44 U.S.C. 3502(3) and 5 CFR 1320.3(c)).
    OMB has generally approved the existing information collection 
requirements contained in the BLM's regulations contained in 43 CFR 
subpart 1610 under OMB Control Number 1004-0212. The final rule would 
not result in any new or revised information collection requirements 
that are currently approved under that OMB Control Number.
    For the reasons set out in the preamble, the BLM is amending 43 CFR 
by creating Part 6100 which would result in new information collection 
requirements that require approval by OMB. The information collection 
requirement contained in part 6100 will allow the BLM to issue a 
restoration or mitigation lease to qualified entities for the purpose 
of restoring degraded land or resources, or mitigation to offset the 
impacts of other land use authorizations. The new information 
collection requirements contained in the final rule are discussed 
below.
New Information Collection Requirements
    Sec.  6102.4(b) and (c)--Restoration and Mitigation Leasing: 
Applications for restoration or mitigation leases shall be filed with 
the Bureau of Land Management office having jurisdiction over the 
public lands covered by the application. Applications for restoration 
or mitigation leases shall include a restoration or mitigation 
development plan which includes sufficient detail to enable the 
authorized officer to evaluate the feasibility, impacts, benefits, 
costs, threats to public health and safety, collaborative efforts, and 
conformance with BLM plans, programs, and policies, including 
compatibility with other uses. The development plan shall include but 
not be limited to:
     Results from available assessments, inventory and 
monitoring efforts, or other high-quality information that identify the 
current conditions of the site(s) of the proposed restoration or 
mitigation action;
     The desired future condition of the proposed lease area 
including clear goals, objectives, and measurable performance criteria 
needed to achieve the objectives;
     Justification for passive restoration or mitigation if 
proposed;
     A description of all facilities for which authorization is 
sought, including access needs and any other special types of 
authorizations that may be needed;
     A map of sufficient scale to allow the required 
information to be legible as well as a legal description of primary and 
alternative project locations;
     Justification of the total acres proposed for the 
restoration or mitigation lease;
     A schedule for restoration activities, if applicable; and
     Information on outreach conducted or to be conducted with 
existing permittees, lease holders, adjacent land managers or owners, 
and other interested parties.
    Sec.  6102.4(c)(4)--Restoration and Mitigation Leasing (additional 
information): After review of the restoration or mitigation development 
plan, the authorized officer may require the applicant to provide 
additional high-quality information, if such information is necessary 
for the BLM to decide whether to issue, issue with modification, or 
deny the proposed lease. An application for the use of public lands may 
require documentation or proof of application for additional private, 
State, local or other Federal agency licenses, permits, easements, 
certificates, or other approval documents. The authorized officer may 
require evidence that the applicant has or prior to commencement of 
lease activities will have the technical and financial capability to 
operate, maintain, and terminate the authorized lease activities.

[[Page 40336]]

    Sec.  6102.4(e)--Restoration and Mitigation Leasing/Monitoring 
Plan: If approved, the lease holder shall provide a monitoring plan 
that describes how the terms and conditions of the lease will be 
applied, the monitoring methodology and frequency, measurable criteria, 
and adaptive management triggers.
    Sec.  6102.4(e)(1)--Restoration and Mitigation Leasing/Annual 
Report: The lease holder shall provide a lease activity report annually 
and at the end of the lease period. At a minimum, the report shall 
describe:
     the restoration or mitigation activities taken as of the 
time of the report;
     any barriers to meeting the stated purpose of the lease;
     proposed steps to resolve any identified barriers; and
     monitoring information and data that meet BLM methodology 
requirements and data standards (see Sec.  6103.2(c)).
    Sec.  6102.4.1(d)(3)--Termination and Suspension of Restoration and 
Mitigation Leases: Upon determination that there is noncompliance with 
the terms and conditions of a restoration or mitigation lease which 
adversely affects land or public health or safety, or impacts ecosystem 
resilience, the authorized officer shall issue an immediate temporary 
suspension. Any time after an order of suspension has been issued, the 
holder may file with the authorized officer a request for permission to 
resume. The request shall be in writing and shall contain a statement 
of the facts supporting the request.
    Sec.  6102.4.2(a)--Bonding for Restoration and Mitigation Leases: 
Prior to the commencement of surface-disturbing activities, the 
authorized officer may require the restoration or mitigation lease 
holder to submit a reclamation, decommission, or performance bond 
conditioned upon compliance with all the terms and conditions of the 
lease covered by the bond. For mitigation leases, the lease holder will 
usually be required to provide letters of credit or establish an escrow 
account for the full amount needed to ensure the development plan meets 
all performance criteria.
    Sec.  6102.5.1(d)--Mitigation--Approval of third parties as 
mitigation fund holders: Sec.  6102.5.1(d) would allow in certain 
limited circumstances authorized officers to approve third parties as 
mitigation fund holders to establish mitigation accounts for use by 
entities granted land use authorizations by the BLM. The authorized 
officer will approve the use of a mitigation account by a permittee 
only if a mitigation fund holder has a formal agreement with the BLM.
    Sec.  6102.5.1(e)--Mitigation--Approval of third parties as 
mitigation fund holders/State and local government agencies: State and 
local government agencies are limited in their ability to accept, 
manage, and disburse funds for the purpose outlined in Sec.  6102.5.1 
and generally should not be approved by the BLM to hold mitigation 
funds for compensatory mitigation sites on public or private lands. An 
exception may be made where a government agency is able to demonstrate, 
to the satisfaction of the BLM, that they are acting as a fiduciary for 
the benefit of the mitigation project or site, essentially as if they 
are a third party, and can show that they have the authority and 
perform the duties described in Sec.  6102.5.1.
    Information Collection Changes From Proposed to Final Rule:
    The BLM introduced the following information collection 
requirements that were not in the proposed rule:
     Restoration and Mitigation Leasing/Monitoring Plan--43 CFR 
6102.4(e);
     Restoration and Mitigation Leasing/Annual Report--43 CFR 
6102.4(e)(1); and
     Mitigation/Approval third parties as mitigation fund 
holders/Annual Fiscal Reports--43 CFR 6102.5-1(e).
    These ICs are necessary to provide monitoring mechanisms to help 
the BLM assure that we are achieving the desired outcomes of the 
restoration and mitigation plans.
    The information collection requirements contained in this rule are 
needed to ensure that accountability through restoration monitoring and 
tracking is carried out effectively and that project goals are being 
met. The estimated annual information collection burdens for this rule 
are outlined below:

----------------------------------------------------------------------------------------------------------------
                                                                                     Time per
                    Collection of information                        Number of       response       Total hours
                                                                     responses        (hours)
----------------------------------------------------------------------------------------------------------------
Restoration and Mitigation Leasing/Restoration or Mitigation                  10              10             100
 Development Plan--43 CFR 6102.4(b) and (c).....................
Restoration and Mitigation Leasing/Additional Information 43 CFR               8              25             200
 6102.4(c)(5)...................................................
Restoration and Mitigation Leasing/Monitoring Plan--43 CFR                     9               5              45
 6102.4(e)......................................................
Restoration and Mitigation Leasing/Annual Report--43 CFR                       9               2              18
 6102.4(e)(1)...................................................
Termination and Suspension of Restoration and Mitigation Leases/               1             240             240
 written request to resume or suspended activity--43 CFR 6102.4-
 1(d)(3)........................................................
Bonding for Restoration and Mitigation Leases--43 CFR 6102.4-                 10              80             800
 2(a)...........................................................
Mitigation/Approval third parties as mitigation fund holders--43               4               5              20
 CFR 6102.5-1(e)................................................
Mitigation/Approval third parties as mitigation fund holders--43               4               5              20
 CFR 6102.5-1(g)................................................
Mitigation/Approval third parties as mitigation fund holders/                  4               2               8
 Annual Fiscal Reports--43 CFR 6102.5-1(e)......................
Mitigation/Approval third parties as mitigation fund holders/                  4               2               8
 Annual Fiscal Reports--43 CFR 6102.5-1(e)......................
----------------------------------------------------------------------------------------------------------------

    Information Collection Summary:
    Title of Collection: Ecosystem Resilience (43 CFR part 6100).
    OMB Control Number: 1004-0218.
    Form Number: None.
    Type of Review: New collection of information.
    Respondents/Affected Public: Private sector businesses; Not-for-
profit organizations; and State, local, or Tribal governments.
    Respondent's Obligation: Required to Obtain or Retain a Benefit.
    Frequency of Collection: On occasion; Annual.
    Estimated Completion Time per Response: Varies from 5 hours to 240 
hours per response, depending on activity.
    Number of Respondents: 63.
    Annual Responses: 63.
    Annual Burden Hours: 1,459.
    Annual Burden Cost: $0.
    If you want to comment on the information-collection requirements 
in this rule, please send your comments and suggestions on this 
information-collection within 30 days of publication of this final rule 
in the Federal Register

[[Page 40337]]

to OMB by going to www.reginfo.gov. Click on the link, ``Currently 
under Review--Open for Public Comments.''

National Environmental Policy Act (NEPA)

    This rule is excluded from review under the National Environmental 
Policy Act under Department Categorical Exclusion (CX) at 43 CFR 
46.210(i). This CX covers policies, directives, regulations, and 
guidelines that are of an administrative, financial, legal, technical, 
or procedural nature or whose environmental effects are too broad, 
speculative, or conjectural to lend themselves to meaningful analysis 
and will later be subject to the NEPA process, either collectively or 
case-by-case. The BLM has documented this CX's applicability to this 
action and posted it for public review here in docket BLM-2023-0001 on 
regulations.gov.

Actions Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use (E.O. 13211)

    Federal agencies must prepare and submit to OMB a Statement of 
Energy Effects (SEE) for any significant energy action. A ``significant 
energy action'' is defined as any action by an agency that: (1) Is a 
significant regulatory action under Executive Order 12866, or any 
successor order, and is likely to have a significant adverse effect on 
the supply, distribution, or use of energy; or (2) Is designated by the 
Administrator of OIRA as a significant energy action. This rule is a 
significant action under Executive Order 12866; however, this rule does 
not affect energy supply, distribution, or use, and OIRA has not 
designated it a significant energy action. Therefore, it is not a 
significant energy action under E.O. 13211, and a SEE is not required.
    The BLM received many comments on its determination that this rule 
is not a significant energy action. Commenters stated that the proposed 
rule, particularly the regulations pertaining to ACECs and the 
establishment of a restoration and mitigation leasing program 
(conservation leasing in the proposed rule), would displace oil and gas 
production and mining for critical minerals on public lands. Commenters 
also expressed concern that ACEC designation and restoration and 
mitigation leases could preclude energy rights of way for transmission 
lines. Commenters requested more information on how the BLM determined 
that this rulemaking would not have a significant adverse effect on 
energy supply, distribution, or use, and specifically requested the BLM 
complete a SEE for this rulemaking.
    The BLM disagrees that the rule would adversely impact the supply, 
distribution, or use of energy. No part of the rule would preclude the 
development or transmission of energy on or across public lands without 
due consideration of multiple use and sustained yield principles 
through BLM's existing decision-making processes, including the 
required public engagement. Restoration and mitigation leases may not 
be issued in areas where an existing and otherwise incompatible use is 
occurring; thus, they would not displace existing mineral leases or 
mining claims. Restoration and mitigation leases are a narrow tool 
which may only be issued to restore degraded landscapes or to offset 
impacts of other land use authorizations; they may not be used to 
``block'' development of mineral resources on lands allocated to such 
use in the governing Resource Management Plan. In many cases, these 
leases will facilitate the development of energy on public lands by 
providing an avenue for developers to satisfy obligations to offset the 
impacts of energy development through compensatory mitigation.
    The revised regulations for ACEC designation will not adversely 
affect the supply, distribution or use of energy on public lands. FLPMA 
has required that the BLM prioritize the designation and protection of 
ACECs since 1976, and the final rule does not change that requirement 
or the overall process and parameters for their designation and 
management. The BLM does not expect that ACEC designations or the 
potential for temporary management of proposed ACECs will increase 
conflict where resources may be impacted by development proposals. 
Rather, the BLM intends these provisions of the rule to provide a 
proactive pathway for managing relevant and important values that 
require special management attention in the limited circumstances in 
which these values are identified outside of the planning process. See 
Section IV, Response to Comments, part E., Areas of Critical 
Environmental Concern, for more information.

Clarity of This Regulation (Executive Orders 12866, 12988 and 13563)

    We are required by Executive Orders 12866 (section 1(b)(12)), 12988 
(section 3(b)(1)(B)), and 13563 (section 1(a)), and by the Presidential 
Memorandum of June 1, 1988, to write all rules in plain language. This 
means that each rule must: a) Be logically organized; b) Use the active 
voice to address readers directly; c) Use common, everyday words and 
clear language rather than jargon; d) Be divided into short sections 
and sentences; and e) Use lists and tables wherever possible.

Authors

    The principal authors of this rule are: Patricia Johnston, BLM 
Division of Wildlife Conservation, Aquatics, and Environmental 
Protection; Darrin King, BLM Division of Regulatory Affairs; Chandra 
Little, BLM Division of Regulatory Affairs, assisted by the DOI Office 
of the Solicitor.
    The action taken herein is pursuant to an existing delegation of 
authority.

List of Subjects in 43 CFR Part 1600

    Administrative practice and procedure, Coal, Conservation, 
Environmental impact statements, Environmental protection, 
Intergovernmental relations, Preservation, Public lands.

    This action by the Principal Deputy Assistant Secretary is taken 
pursuant to an existing delegation of authority.

Steven H. Feldgus,
Deputy Assistant Secretary for Land and Minerals Management.

    Accordingly, for the reasons set out in the preamble, the Bureau of 
Land Management amends 43 CFR Chapter II as set forth below:

PART 1600--PLANNING, PROGRAMMING, BUDGETING

0
1. The authority citation for part 1600 continues to read as follows:

    Authority:  43 U.S.C. 1711-1712.


0
2. Revise Sec.  1610.7-2 to read as follows:


Sec.  1610.7-2   Designation of areas of critical environmental 
concern.

    (a) An area of critical environmental concern (ACEC) designation is 
the principal BLM designation for public lands where special management 
is required to protect and prevent irreparable damage to important 
historic, cultural, or scenic values; fish or wildlife resources; or 
natural systems or processes or to protect life and safety from natural 
hazards. The BLM designates ACECs when issuing a decision to approve a 
resource management plan, plan revision, or plan amendment. ACECs shall 
be managed to protect the relevant and important values for which they 
are designated.
    (b) In the land use planning process, authorized officers must 
identify, evaluate, and give priority to areas that have potential for 
designation and management as ACECs. Identification, evaluation, and 
priority management of

[[Page 40338]]

ACECs shall be considered during the development and revision of 
resource management plans and during amendments to resource management 
plans when such action falls within the scope of the amendment (see 
Sec. Sec.  1610.4-1 through 1610.4-9). Proposed and existing ACECs that 
will be addressed by a resource management plan, plan revision, or plan 
amendment will be identified in all public notices required by this 
part (see, e.g., Sec.  1610.2).
    (c) The authorized officer must facilitate the identification of 
eligible ACECs early in the land use planning process by:
    (1) Analyzing inventory, assessment, and monitoring data to 
determine whether there are areas containing important historic, 
cultural, or scenic values; fish or wildlife resources; natural systems 
or processes; or natural hazards potentially impacting life and safety 
that are eligible for designation;
    (2) Reevaluating existing ACECs in order to determine if the 
relevant and important values are still present and special management 
attention is still necessary; and
    (3) Seeking nominations for ACECs, during public scoping, from the 
public, State and local governments, Indian Tribes, and other Federal 
agencies (see Sec. Sec.  1610.2(c), 1602.5(b)(4) through (6)).
    (d) To be designated as an ACEC, an area must meet the following 
criteria:
    (1) Relevance. The area contains important historic, cultural, or 
scenic values; fish or wildlife resources; natural systems or 
processes; or natural hazards potentially impacting life and safety.
    (2) Importance. A historic, cultural, or scenic value; a fish or 
wildlife resource; a natural system or process; or a natural hazard 
potentially impacting life and safety has importance if it has 
qualities of special worth, consequence, meaning, distinctiveness, or 
cause for concern; national or more than local importance, subsistence 
value, or regional contribution of a resource, value, system, or 
process; or contributes to ecosystem resilience, landscape intactness, 
or habitat connectivity. A natural hazard can be important if it is a 
significant threat to human life and safety.
    (3) Special management attention. The important historic, cultural, 
or scenic values; fish or wildlife resources; natural systems or 
processes; or natural hazards potentially impacting life and safety 
require special management attention. ``Special management attention'' 
means management prescriptions that:
    (i) Protect and prevent irreparable damage to the relevant and 
important values, or that protect life and safety from natural hazards; 
and
    (ii) Would not be prescribed if the relevant and important values 
were not present. In this context, ``irreparable damage'' means harm to 
a value, resource, system, or process that substantially diminishes the 
relevance or importance of that value, resource, system, or process in 
such a way that recovery of the value, resource, system, or process to 
the extent necessary to restore its prior relevance or importance is 
impossible.
    (e) The authorized officer may designate an ACEC research natural 
area if the area:
    (1) Meets all of the criteria identified in Sec.  1610.7-2(d)(1) 
through (3); and
    (2) Is consistent with one or more of the primary purposes found at 
Sec.  8223.0-5 of this chapter. A designated ACEC research natural area 
will be subject to the use restrictions at Sec.  8223.1 of this title 
in addition to the special management attention prescribed by the 
authorized officer through land use planning.
    (f) The boundaries of proposed ACECs shall be identified for public 
lands, as appropriate, to encompass the relevant and important values 
and geographic extent of the special management attention needed to 
provide protection.
    (g) During a planning process, the planning documents must analyze 
in detail any proposed ACEC that has relevant and important values. 
Where the BLM has received ACEC proposals that do not have relevant and 
important values, the agency is not required to review those proposals 
in detail in planning documents. Through land use planning, the BLM 
will evaluate the need for special management attention to protect the 
relevant and important values, which could include other allocations 
and designations being considered, in order to provide for informed 
decision-making on the trade-offs associated with ACEC designation.
    (h) The approved resource management plan, plan revision, or plan 
amendment shall list all designated ACECs, identify their relevant and 
important values, and include the special management attention, 
including management prescriptions for other uses, identified for each 
designated ACEC.
    (i) ACEC nominations typically should be evaluated during a 
planning process. If a nomination for an ACEC is received outside of 
the planning process, the following provisions apply.
    (1) The State Director will evaluate whether the relevant, 
important, and special management criteria identified in paragraph (d) 
of this section are met. The State Director will determine the 
appropriate time to complete this analysis. If the criteria identified 
in paragraph (d) of this section are met, then the State Director 
shall, at their discretion, either:
    (i) Initiate a land use planning process; or
    (ii) Provide temporary management consistent with the applicable 
resource management plan to protect the relevant and important values 
from irreparable damage. Any temporary management that is implemented 
would be in effect until the BLM either completes a land use planning 
process to determine whether to designate the area as an ACEC or, 
through periodic evaluation, finds designation is no longer necessary. 
The BLM will publish a public notice if temporary management is 
implemented.
    (2) The State Director may defer evaluating the nomination to an 
upcoming planning process.
    (j) The State Director shall:
    (1) Determine which ACECs to designate based on:
    (i) The presumption that all areas found to require special 
management attention will be designated;
    (ii) The value of other resource uses in the area;
    (iii) The feasibility of managing the designation; and
    (iv) The relationship to other types of designations and protective 
management available.
    (2) In the decision document for the resource management plan or 
plan amendment, provide a justification and rationale for both ACEC 
designation decisions and decisions not to designate a proposed ACEC.
    (3) Administer designated ACECs in a manner that conserves, 
protects, and enhances the relevant and important values and only allow 
casual use or uses that will ensure the protection of the relevant and 
important values. This paragraph (j)(3) does not apply to those ACECs 
designated for natural hazards potentially impacting life and safety.
    (4) Prioritize acquisition of inholdings within ACECs and adjacent 
or connecting lands identified as holding relevant and important values 
related to the designated ACEC.
    (k) The State Director, through the land use planning process, may 
remove the designation of an ACEC, in whole or in part, only when:
    (1) The State Director finds that special management attention is 
not needed because another legally enforceable mechanism provides an 
equal or greater level of protection; or
    (2) The State Director finds that the relevant and important values 
are no longer present, cannot be recovered, or

[[Page 40339]]

have recovered to the point where special management is no longer 
necessary. The findings must be supported by data or documented changes 
on the ground.
    (l) As used in this section, the terms casual use, conservation, 
ecosystem resilience, intactness, landscape, monitoring, protection, 
and restoration have the same meanings as in Sec.  6101.4 of this 
chapter.

0
3. Add part 6100 to read as follows:

PART 6100--ECOSYSTEM RESILIENCE

Subpart 6101--General Information
Sec.
6101.1 Purpose.
6101.2 Objectives.
6101.3 Authority.
6101.4 Definitions.
6101.5 Principles for Ecosystem Resilience.
Subpart 6102--Conservation Use to Achieve Ecosystem Resilience
Sec.
6102.1 Protection of Landscape Intactness.
6102.2 Management to Protect Intact Landscapes.
6102.3 Restoration.
6102.3.1 Restoration Prioritization and Planning.
6102.4 Restoration and Mitigation Leasing.
6102.4.1 Termination and Suspension of Restoration and Mitigation 
Leases.
6102.4.2 Bonding for Restoration and Mitigation Leases.
6102.5 Management Actions for Ecosystem Resilience.
6102.5.1 Mitigation.
Subpart 6103--Managing Land Health to Achieve Ecosystem Resilience
Sec.
6103.1 Land Health Standards.
6103.1.1 Management for Land Health.
6103.1.2 Land Health Evaluations and Determinations.
6103.2 Inventory, Assessment and Monitoring.

    Authority:  16 U.S.C. 7202; 43 U.S.C. 1701 et seq.

PART 6100--ECOSYSTEM RESILIENCE

Subpart 6101--General Information


Sec.  6101.1  Purpose.

    The BLM's management of public lands on the basis of multiple use 
and sustained yield relies on healthy landscapes and resilient 
ecosystems. The purpose of this part is to promote the use of 
conservation to ensure ecosystem resilience and prevent permanent 
impairment or unnecessary or undue degradation of public lands. This 
part discusses the use of protection and restoration actions, as well 
as tools such as watershed condition assessments, land health 
evaluations, inventory, assessment, and monitoring.


Sec.  6101.2  Objectives.

    The objectives of this part are to:
    (a) Achieve and maintain ecosystem resilience when administering 
Bureau programs; developing, amending, and revising land use plans; and 
approving uses on the public lands;
    (b) Promote conservation by maintaining, protecting, and restoring 
ecosystem resilience and intact landscapes, including habitat 
connectivity and old-growth forests;
    (c) Integrate the fundamentals of land health and related standards 
and guidelines into resource management for all uses and activities on 
BLM-managed lands;
    (d) Incorporate inventory, assessment, and monitoring principles 
into decision-making and use this information to identify trends and 
implement adaptive management strategies;
    (e) Accelerate restoration and improvement of degraded public 
lands, air, and waters to properly functioning and desired conditions;
    (f) Manage for ecosystems and their components to adapt, absorb, or 
recover from the effects of disturbances or environmental change 
through conservation, protection, restoration, or improvement of 
essential structures, functions, and redundancy of ecological patterns 
across the landscape;
    (g) Provide for healthy lands and waters that support sustainable 
outdoor recreation experiences for current and future generations;
    (h) Prevent permanent impairment or unnecessary or undue 
degradation of public lands;
    (i) Improve engagement and co-stewardship of public lands with 
Tribal entities and promote the use of Indigenous Knowledge in 
decision-making; and
    (j) Advance environmental justice through restoration and 
mitigation actions.


Sec.  6101.3  Authority.

    These regulations are issued under the authority of the Federal 
Land Policy and Management Act of 1976 (43 U.S.C. 1701 et seq.) as 
amended and section 2002 of the Omnibus Public Land Management Act of 
2009 (16 U.S.C. 7202). Implementation of this part is subject to all 
applicable law.


Sec.  6101.4  Definitions.

    As used in this part, the term:
    (a) Casual use means any short-term, noncommercial activity that 
does not cause appreciable damage or disturbance to the public lands or 
their resources or improvements and that is not prohibited by closure 
of the lands to any such activity.
    (b) Conservation means the management of natural resources to 
promote protection and restoration. Conservation actions are effective 
at building resilient lands and are designed to reach desired future 
conditions through protection, restoration, and other types of 
planning, permitting, and program decision-making.
    (c) Disturbance means changes in environmental conditions, either 
discrete or chronic. Disturbances may be viewed as ``characteristic'' 
when ecosystems and/or species have evolved to survive, exploit, and 
even depend on a disturbance or ``uncharacteristic'' when attributes of 
the disturbance (e.g., type, timing, frequency, magnitude, duration) 
are outside prevailing background conditions. Disturbances may be 
natural or human-caused.
    (d) Ecosystem resilience means the capacity of ecosystems (e.g., 
old-growth forests and woodlands, sagebrush core areas) to maintain or 
regain their fundamental composition, structure, and function 
(including maintaining habitat connectivity and providing ecosystem 
services) when affected by disturbances such as drought, wildfire, and 
nonnative invasive species.
    (e) Effects means the direct, indirect, and cumulative impacts, as 
defined in 40 CFR 1508.1(g), from a public land use. Effects and 
impacts as used in these regulations are synonymous.
    (f) High-quality information means information that promotes 
reasoned, evidence-based agency decisions. Information that meets the 
standards for objectivity, utility, and integrity as set forth in the 
Department's Information Quality Guidelines \17\ qualifies as high-
quality information. Indigenous Knowledge qualifies as high-quality 
information when it is gained by prior, informed consent free of 
coercion, and generally meets the standards for high-quality 
information.
---------------------------------------------------------------------------

    \17\ U.S. Department of the Interior, Information Quality 
Guidelines, https://www.doi.gov/ocio/policy-mgmt-support/information-quality-guidelines.
---------------------------------------------------------------------------

    (g) Important, scarce, or sensitive resources:
    (1) ``Important resources'' means resources that the BLM has 
determined to warrant special consideration, consistent with applicable 
law.
    (2) ``Scarce resources'' means resources that are not plentiful or 
abundant and may include resources that are experiencing a downward 
trend in condition.

[[Page 40340]]

    (3) ``Sensitive resources'' means resources that are delicate and 
vulnerable to adverse change, such as resources that lack resilience to 
changing circumstances.
    (h) Indigenous Knowledge means a body of observations, oral and 
written knowledge, innovations, technologies, practices, and beliefs 
developed by Indigenous Peoples through interaction and experience with 
the environment. Indigenous Knowledge is applied to phenomena across 
biological, physical, social, cultural, and spiritual systems. 
Indigenous Knowledge can be developed over millennia, continue to 
develop, and include understanding based on evidence acquired through 
direct contact with the environment and long-term experiences, as well 
as extensive observations, lessons, and skills passed from generation 
to generation. Indigenous Knowledge is developed, held, and stewarded 
by Indigenous Peoples and is often intrinsic within Indigenous legal 
traditions, including customary law or traditional governance 
structures and decision-making processes. Other terms, such as 
Traditional Knowledge, Traditional Ecological Knowledge, Genetic 
Resources associated with Traditional Knowledge, Traditional Cultural 
Expression, Tribal Ecological Knowledge, Native Science, Indigenous 
Applied Science, Indigenous Science, and others, are sometimes used to 
describe this knowledge system.
    (i) In-lieu fee program means a program involving the restoration, 
establishment, and/or enhancement and protection of resources at 
specific sites through funds paid to a local or State government 
agency, non-profit organization that qualifies for tax-exempt status in 
accordance with Internal Revenue Code (IRC) section 501(c)(3), or 
Tribal organization to satisfy compensatory mitigation requirements for 
adverse impacts resulting from BLM-authorized public land uses. 
Collected funds are pooled and expended on projects that provide 
compensatory mitigation for the same types of resource impacts. Similar 
to a mitigation bank, an in-lieu fee program sells mitigation credits 
to permittees whose obligation to provide compensatory mitigation is 
then transferred to the in-lieu program sponsor.
    (j) Intact landscape means a relatively unfragmented landscape free 
of local conditions that could permanently or significantly disrupt, 
impair, or degrade the landscape's composition, structure, or function. 
Intact landscapes are large enough to maintain native biological 
diversity, including viable populations of wide-ranging species. Intact 
landscapes provide critical ecosystem services and are resilient to 
disturbance and environmental change and thus may be prioritized for 
conservation action. For example, an intact landscape would have 
minimal fragmentation from roads, fences, and dams; low densities of 
agricultural, urban, and industrial development; and minimal pollution 
levels.
    (k) Intactness means a measure of the degree to which human 
influences, which can include invasive species and unnatural wildfire, 
alter or impair the structure, function, or composition of a landscape. 
Areas experiencing a natural fire regime can be intact.
    (l) Land health means the degree to which the integrity of the 
soil, water, and ecological processes sustain habitat quality and 
ecosystem functions.
    (m) Landscape means an area that is spatially heterogeneous in at 
least one factor of interest which may include common management 
concerns or conditions. The landscape is not defined by the size of the 
area, but rather by the interacting elements that are relevant and 
meaningful in a management context. Landscapes may be defined in terms 
of aquatic conditions, such as watersheds, or terrestrial conditions, 
such as ecoregions.
    (n) Mitigation means:
    (1) avoiding the impacts of a proposed action by not taking a 
certain action or parts of an action;
    (2) minimizing impacts by limiting the degree or magnitude of the 
action and its implementation;
    (3) rectifying the impact of the action by repairing, 
rehabilitating, or restoring the affected environment;
    (4) reducing or eliminating the impact over time by preservation 
and maintenance operations during the life of the action; and
    (5) compensating for the impact of the action by replacing or 
providing substitute resources or environments. In practice, the 
mitigation sequence is often summarized as avoid, minimize, and 
compensate. The BLM generally applies mitigation hierarchically: first 
avoid, then minimize, and then compensate for any residual impacts from 
proposed actions.
    (o) Mitigation bank means a site, or suite of sites, where 
resources are restored, established, enhanced, or protected for the 
purpose of providing compensatory mitigation for impacts to the same 
types of resources from BLM-authorized public land uses. In general, 
the sponsor of a mitigation bank sells mitigation credits to permittees 
whose obligation to provide compensatory mitigation is then transferred 
to the mitigation bank sponsor.
    (p) Mitigation fund means an account established by a mitigation 
fund holder through a written agreement with the BLM. Permittees with 
compensatory mitigation requirements may deposit funds with the fund 
holder, when approved to do so by the BLM. Funds are then expended by 
the fund holder on projects that mitigate for the same types of 
resources that were impacted as a result of BLM-authorized land uses.
    (q) Mitigation strategies means documents that identify, evaluate, 
and communicate potential mitigation needs and mitigation measures in a 
geographic area, at relevant scales, in advance of anticipated public 
land uses.
    (r) ``Monitoring'' means the periodic observation and orderly 
collection of data to evaluate:
    (1) existing conditions;
    (2) the effects of management actions; or
    (3) the effectiveness of actions taken to meet management 
objectives.
    (s) Permittee means any person or other legal entity that has a 
valid permit, right-of-way grant, lease, or other BLM land use 
authorization.
    (t) Protection means the act or process of conservation by 
maintaining the existence of resources while preventing degradation, 
damage, or destruction. Protection is not synonymous with preservation 
and allows for active management or other uses consistent with multiple 
use and sustained yield principles.
    (u) Public lands means any surface estate or interests in the 
surface estate owned by the United States and administered by the 
Secretary of the Interior through the BLM without regard to how the 
United States acquired ownership.
    (v) Reclamation means, when used in relation to individual project 
goals and objectives, practices intended to achieve an outcome that 
reflects the final goal to restore the character and productivity of 
the land and water. Components of reclamation include, as applicable:
    (1) Isolating, controlling, or removing toxic or deleterious 
substances;
    (2) Regrading and reshaping to conform with adjacent landforms, 
facilitate revegetation, control drainage, and minimize erosion;
    (3) Rehabilitating fisheries or wildlife habitat;
    (4) Placing growth medium and establishing self-sustaining 
revegetation;
    (5) Removing or stabilizing buildings, structures, or other support 
facilities;
    (6) Plugging drill holes and closing underground workings; and
    (7) Providing for post-activity monitoring, maintenance, or 
treatment.

[[Page 40341]]

    (w) Restoration means the process or act of conservation by 
passively or actively assisting the recovery of an ecosystem that has 
been degraded, damaged, or destroyed to a more natural, native 
ecological state.
    (x) Significant causal factor means a use, activity, or disturbance 
that prevents an area from achieving or making significant progress 
toward achieving one or more land health standards. To be a significant 
factor, a use may be one of several causal factors in contributing to 
less-than-healthy conditions; it need not be the sole causal factor 
inhibiting progress toward the standards.
    (y) Significant progress means measurable or observable changes in 
the indicators that demonstrate improved land health. Acceptable levels 
of change must be realistic in terms of the capability of the resource 
but must also be as expeditious and effective as practical.
    (z) Sustained yield means the achievement and maintenance in 
perpetuity of a high-level annual or regular periodic output of the 
various renewable resources of BLM-managed lands consistent with 
multiple use and without permanent impairment of the productivity of 
the land. Preventing permanent impairment means that renewable 
resources are not permanently depleted and that desired future 
conditions are met for future generations. Ecosystem resilience is 
essential to the BLM's ability to manage for sustained yield.
    (aa) Unnecessary or undue degradation means harm to resources or 
values that is not necessary to accomplish a use's stated goals or is 
excessive or disproportionate to the proposed action or an existing 
disturbance. Unnecessary or undue degradation includes two distinct 
elements: ``Unnecessary degradation'' means harm to land resources or 
values that is not needed to accomplish a use's stated goals. For 
example, approving a proposed access road causing damage to critical 
habitat for a plant listed as endangered under the Endangered Species 
Act that could be located without any such impacts and still provide 
the needed access may result in unnecessary degradation. ``Undue 
degradation'' means harm to land resources or values that is excessive 
or disproportionate to the proposed action or an existing disturbance. 
For example, approving a proposed access road causing damage to the 
only remaining critical habitat for a plant listed as endangered under 
the Endangered Species Act, even if there is not another location for 
the road, may result in undue degradation. The statutory obligation to 
prevent ``unnecessary or undue degradation'' applies when either 
unnecessary degradation or undue degradation, and not necessarily both, 
is implicated.
    (bb) Watershed condition assessment means a process for assessing 
and synthesizing information on the condition of soil, water, habitats, 
and ecological processes within watersheds relative to the BLM's land 
health fundamentals. A watershed condition assessment may include 
assessment of one or more of watershed physical and biological 
characteristics, landscape intactness, and disturbances.


Sec.  6101.5  Principles for Ecosystem Resilience.

    (a) Except where otherwise provided by law, public lands must be 
managed under the principles of multiple use and sustained yield.
    (b) To ensure multiple use and sustained yield, the BLM's 
management must conserve the quality of scientific, scenic, historical, 
ecological, environmental, air and atmospheric, water resource, and 
archeological values; preserve and protect certain public lands in 
their natural condition (including ecological and environmental 
values); maintain the productivity of renewable natural resources in 
perpetuity; and consider the long-term needs of future generations, 
without permanent impairment of the productivity of the land.
    (c) The BLM must conserve renewable natural resources at a level 
that maintains or improves future resource availability and ecosystem 
resilience, in a manner consistent with multiple use and sustained 
yield.
    (d) Authorized officers must implement the foregoing principles 
through:
    (1) Conservation as a land use within the multiple use framework, 
including in decision-making, authorization, and planning processes;
    (2) Protection and maintenance of the fundamentals of land health 
and ecosystem resilience;
    (3) Restoration and protection of public lands to support ecosystem 
resilience, including habitat connectivity and old-growth forests;
    (4) Use of the full mitigation hierarchy to address impacts to 
species, habitats, and ecosystems from land use authorizations; and
    (5) Prevention of unnecessary or undue degradation.

Subpart 6102--Conservation Use To Achieve Ecosystem Resilience


Sec.  6102.1  Protection of Landscape Intactness.

    (a) The BLM must manage certain landscapes to protect their 
intactness, including habitat connectivity and old-growth forests. This 
requires:
    (1) Maintaining ecosystem resilience and habitat connectivity 
through conservation actions;
    (2) Conserving landscape intactness when managing compatible uses, 
especially where development or fragmentation that could permanently 
impair ecosystem resilience has the potential to occur on public lands;
    (3) Maintaining or restoring resilient ecosystems through habitat 
and ecosystem restoration projects that are implemented over broader 
spatial and longer temporal scales;
    (4) Coordinating and implementing actions across BLM programs, 
offices, and partners to protect intact landscapes; and
    (5) Pursuing management actions that maintain or mimic 
characteristic disturbance, or mimic natural disturbance, when 
maintaining it is not possible.
    (b) Authorized officers will seek to prioritize actions that 
conserve and protect landscape intactness in accordance with Sec.  
6101.2.


Sec.  6102.2  Management to Protect Intact Landscapes.

    (a) The BLM will maintain an inventory of landscape intactness as a 
resource value using watershed condition assessments (see Sec.  
6103.2(a)) to establish a consistent baseline condition.
    (b) When updating a resource management plan under part 1600 of 
this chapter, the BLM will use a baseline condition of intactness and 
available high-quality information about landscape intactness, such as 
watershed condition assessments, environmental disturbances, and 
monitoring (see Sec.  6103.2), to:
    (1) Identify and delineate boundaries for intact landscapes within 
the planning area, taking into consideration habitat connectivity and 
migration corridor data;
    (2) Evaluate alternatives to protect intact landscapes or portions 
of the intact landscapes from activities that would permanently or 
significantly disrupt, impair, or degrade the ecosystem's structure or 
functionality of the intact landscapes; and
    (3) Identify which intact landscapes or portions of intact 
landscapes will be managed for protection consistent with

[[Page 40342]]

the principles enumerated in Sec.  6102.1(a).
    (c) The BLM will identify desired conditions and landscape 
objectives to guide implementation of decisions regarding management of 
intact landscapes, habitat connectivity, and old-growth forests. As 
part of carrying out paragraph (b) of this section, the BLM will seek 
to:
    (1) Establish partnerships to work across Federal and non-Federal 
lands to promote and protect intact landscapes;
    (2) Work with communities to identify geographic areas important 
for their strategic growth and development in order to allow for better 
identification of the most suitable areas to protect intact landscapes 
and habitat connectivity;
    (3) Consult with Tribes to identify opportunities for co-
stewardship to protect intact landscapes (see Sec.  6102.5(b)(4) 
through (6)); and
    (4) Use high-quality information including standardized 
quantitative monitoring to evaluate the effectiveness of management 
actions for ecosystem resilience (see Sec.  6103.2).
    (d) When determining whether to acquire lands or interests in lands 
through purchase, donation, or exchange, authorized officers must 
prioritize the acquisition of lands or interests in lands that would 
further protect and connect intact landscapes and functioning 
ecosystems.
    (e) Authorized officers must collect and track landscape intactness 
data to support minimizing surface disturbance and inform conservation 
actions. This information must be included in a publicly available 
national tracking system.


Sec.  6102.3  Restoration.

    (a) The BLM must emphasize restoration on the public lands to 
achieve its multiple use and sustained yield mandate.
    (b) In determining the restoration actions required to achieve 
recovery of ecosystems and promote resilience, the BLM must consider 
the causes of degradation, the recovery potential of the ecosystem, and 
the allowable uses in the governing land use plan, such as whether an 
area is managed for recreation or is degraded land prioritized for 
development. The BLM must then develop commensurate restoration goals 
and objectives (see Sec.  6103.1.1).
    (c) The BLM should employ management actions to promote 
restoration. Over the long-term, restoration actions must be durable, 
self-sustaining, and expected to persist in a manner that supports land 
health and ecosystem resilience.
    (d) When designing and implementing restoration actions on public 
lands, including authorizing restoration leases, authorized officers 
must adhere to the following principles:
    (1) Ensure that restoration actions address causes of degradation, 
focus on process-based solutions, and where possible maintain 
attributes and resource values associated with the potential or 
capability of the ecosystem;
    (2) Ensure that actions are designed, implemented, and monitored at 
appropriate spatial and temporal scales using suitable treatments and 
tools to achieve desired outcomes;
    (3) Coordinate and implement actions across BLM programs, with 
partners, and in consideration of existing uses to develop holistic 
restoration actions;
    (4) Ensure incorporation of locally appropriate best management 
practices, high-quality information, and adaptive management that 
supports restoration;
    (5) Identify opportunities to implement nature-based or low-tech 
restoration activities and use seed from native plants; and
    (6) Consult with Tribes to identify opportunities for co-
stewardship or collaboration (see Sec.  6102.5(b)(4) through (6)).


Sec.  6102.3.1  Restoration Prioritization and Planning.

    (a) Authorized officers must identify measurable and quantifiable 
restoration outcomes consistent with the restoration principles 
enumerated in Sec.  6102.3 in all resource management plans.
    (b) Authorized officers will, at least every 5 years, identify 
priority landscapes for restoration consistent with resource management 
plan objectives and the restoration principles enumerated in Sec.  
6102.3. In doing so, authorized officers must consider:
    (1) Current conditions and causes of degradation as indicated by 
watershed condition assessments, existing land health assessments, 
evaluations, and determinations, and other high-quality information 
(see Sec.  6103.2);
    (2) The likelihood of success of restoration activities to achieve 
resource or conservation objectives including ecosystem resilience;
    (3) Where restoration actions may have the most social and economic 
benefits or work to address environmental justice, including impacts on 
communities with environmental justice concerns; and
    (4) Where restoration or mitigation can minimize or offset 
unnecessary or undue degradation, such as ecosystem conversion, 
fragmentation, habitat loss, or other negative outcomes that 
permanently impair ecosystem resilience.
    (c) For priority landscapes identified in accordance with this 
subpart, authorized officers must periodically, and at least every 5 
years, develop or amend restoration plans consistent with resource 
management plan objectives in accordance with part 1600 of this 
chapter. Each restoration plan must include goals, objectives, and 
management actions that are:
    (1) Consistent with the restoration principles enumerated in Sec.  
6102.3;
    (2) Commensurate with recovery potential;
    (3) Evaluated against measurable objectives, including to 
facilitate adaptive management to achieve outcomes supporting ecosystem 
resilience (see subpart 6103);
    (4) Developed consistent with scientifically accepted standards and 
principles for restoration; and
    (5) Consistent with statewide and regional needs as identified in 
the assessment of priority landscapes for restoration as identified in 
this subpart.
    (d) Authorized officers must track restoration implementation and 
progress toward achieving goals at appropriate temporal scales. If 
restoration goals are not met, authorized officers must assess why 
restoration outcomes are not being achieved and what, if any, 
additional resources or changes to management are needed to achieve 
restoration goals.


Sec.  6102.4  Restoration and Mitigation Leasing.

    (a) The BLM may authorize restoration leases or mitigation leases 
under such terms and conditions as the authorized officer determines 
are appropriate for the purpose of restoring degraded landscapes or 
mitigating impacts of other uses.
    (1) Restoration or mitigation leases on the public lands may be 
authorized for the following purposes:
    (i) Restoration of land and resources by passively or actively 
assisting the recovery of an ecosystem that has been degraded, damaged, 
or destroyed to a more natural, resilient ecological state; and
    (ii) Mitigation to offset impacts to resources resulting from other 
land use authorizations.
    (2) Authorized officers may issue restoration or mitigation leases 
to any qualified entity that can demonstrate capacity for implementing 
restoration or mitigation projects (as appropriate) and meets the lease 
requirements. Consistent with the lease adjudication practices 
established in 43 CFR 2920, qualified entities for restoration or 
mitigation

[[Page 40343]]

leases may be individuals, businesses, non-governmental organizations, 
Tribal governments, conservation districts, or State fish and wildlife 
agencies. Qualified entities for a mitigation lease to establish an in-
lieu fee program are limited to non-governmental organizations, State 
fish and wildlife agencies, and Tribal government organizations. 
Restoration and mitigation leases may not be held by a foreign person 
as that term is defined in 31 CFR 802.221.
    (3) Restoration or mitigation leases shall be issued for a term 
consistent with the time required to achieve their objective.
    (i) A lease issued for purposes of restoration may be issued for a 
maximum term of 10 years, and all activities taken under the lease 
shall be reviewed mid-term for consistency with the lease provisions.
    (ii) A lease issued for purposes of mitigation shall be issued for 
a term commensurate with the impact it is mitigating, and all 
activities taken under the lease reviewed every 5 years for consistency 
with the lease provisions.
    (iii) Authorized officers may renew a restoration or mitigation 
lease if necessary to serve the purpose for which the lease was first 
issued, provided that the lease holder is in compliance with the terms 
and conditions of the lease and renewal is consistent with applicable 
law. Such renewal can be for a period no longer than the original term 
of the lease.
    (4) Subject to valid existing rights and applicable law, once the 
BLM has issued a lease, the BLM shall not issue new authorizations to 
use the leased lands if the use would be incompatible with the 
authorized restoration or mitigation use.
    (5) No land use authorization is required under the regulations in 
this part for casual use of the public lands covered by a restoration 
or mitigation lease.
    (b) The application process for a restoration or mitigation lease 
and for renewal of such a lease is as follows:
    (1) An application for a restoration or mitigation lease must be 
filed using an approved application form with the Bureau of Land 
Management office having jurisdiction over the public lands covered by 
the application.
    (2) The filing of an application gives the applicant no right to 
use the public lands.
    (3) Acceptance of an application or approval of a lease is not 
guaranteed and is at the discretion of the authorized officer.
    (4) Actions that pertain to or address geographic areas or resource 
conditions previously identified as needing restoration by the BLM 
through watershed condition assessments and existing land health 
assessments, land health evaluations, an existing restoration plan, a 
mitigation strategy, or high-quality inventory, assessment, and 
monitoring information shall be given priority for consideration (see 
subpart 6103).
    (c) An application for a restoration or mitigation lease must 
comply with the following requirements:
    (1) An application must include a restoration or mitigation 
development plan that describes the proposed restoration or mitigation 
use in sufficient detail to enable authorized officers to evaluate the 
feasibility, impacts, benefits, costs, threats to public health and 
safety, collaborative efforts, and conformance with BLM plans, 
programs, and policies, including compatibility with other uses.
    (2) The development plan shall include, but not be limited to:
    (i) Results from available assessments, inventory and monitoring 
efforts, or other high-quality information (see subpart 6103) that 
identify the current conditions of the site(s) of the proposed 
restoration or mitigation action;
    (ii) The desired future condition of the proposed lease area 
including clear goals, objectives, and measurable performance criteria 
needed to determine progress toward achieving the objectives;
    (iii) Justification for passive restoration or mitigation if 
proposed;
    (iv) A description of all facilities for which authorization is 
sought, including access needs and any other special types of 
authorizations that may be needed;
    (v) A map of sufficient scale to allow the required information to 
be legible as well as a legal description of primary and alternative 
project locations;
    (vi) Justification of the total acres proposed for the restoration 
or mitigation lease;
    (vii) A schedule for restoration activities if applicable; and
    (viii) Information on outreach already conducted or to be conducted 
with existing permittees, lease holders, adjacent land managers or 
owners, and other interested parties.
    (3) Restoration lease development plans must be consistent with 
Sec.  6102.3 and mitigation lease development plans must be consistent 
with Sec.  6102.5.1.
    (4) Applicants must submit the following additional information, 
upon request of the authorized officer:
    (i) Additional high-quality information, if such information is 
necessary for the BLM to decide whether to issue, issue with 
modification, or deny the proposed lease;
    (ii) Documentation of or proof of application for any required 
private, State, local, or other Federal agency licenses, permits, 
easements, certificates, or other approvals; and
    (iii) Evidence that the applicant has, or will have prior to 
commencement of lease activities, the technical and financial 
capability to operate, maintain, and terminate the authorized lease 
activities.
    (d) When reviewing restoration and mitigation lease applications, 
authorized officers will consider the following factors, along with 
other applicable legal requirements, which will make lease issuance 
more likely:
    (1) Lease outcomes that are consistent with the restoration 
principles in Sec.  6102.3(d);
    (2) Desired future conditions that are consistent with the 
management objectives and allowable uses in the governing land use 
plan, such as an area managed for recreation or prioritized for 
development;
    (3) Collaboration with existing permittees, leaseholders, and 
adjacent land managers or owners;
    (4) Outreach to or support from local communities; or
    (5) Consideration of environmental justice objectives.
    (e) If approved, the leaseholder shall provide a monitoring plan 
that describes how the terms and conditions of the lease will be 
applied, the monitoring methodology and frequency, measurable criteria, 
and adaptive management triggers.
    (1) The lease holder shall provide a lease activity report annually 
and at the end of the lease period. At a minimum, the report shall 
specify:
    (i) The restoration or mitigation activities taken as of the time 
of the report;
    (ii) Any barriers to meeting the stated purpose of the lease;
    (iii) Proposed steps to resolve any identified barriers; and
    (iv) Monitoring information and data that meet BLM methodology 
requirements and data standards (see Sec.  6103.2(d)).
    (2) Additional requirements for development plans and monitoring 
plans for mitigation leases are provided in Sec.  6102.5.1.
    (f) An approved lease does not convey exclusive rights to use the 
public lands to the lease holder The authorized officer retains the 
discretion to determine compatibility of the renewal of existing 
authorizations and future land use proposals on lands subject to 
restoration or mitigation leases.

[[Page 40344]]

    (g) A restoration or mitigation lease will not preclude access to 
or across leased areas for casual use, recreation use, research use, or 
other use taken pursuant to a land use authorization that is compatible 
with the approved restoration or mitigation use.
    (h) Existing access that accommodates accessibility under section 
504 of the Rehabilitation Act shall remain after a lease has been 
issued.
    (i) A restoration or mitigation lease may only be amended, 
assigned, or transferred with the written approval of the authorized 
officer, and no amendment, assignment, or transfer shall be effective 
until the BLM has approved it in writing. Authorized officers may 
authorize assignment or transfer of a restoration or mitigation lease 
in their discretion if no additional rights will be conveyed beyond 
those granted by the original authorization, the proposed assignee or 
transferee is qualified to hold the lease, and the assignment or 
transfer is in the public interest.
    (j) Administrative cost recovery, rents, and fees for restoration 
and mitigation leases will be governed by the provisions of 43 CFR 
2920.6 and 2920.8, provided that the BLM may waive or reduce 
administrative cost recovery, fees, and rent of a restoration lease if 
the restoration lease is not used to generate revenue or satisfy the 
requirements of a mitigation program (e.g., selling credits in an 
established market), and the restoration lease will enhance ecological 
or cultural resources or provide a benefit to the general public.


Sec.  6102.4.1   Termination and Suspension of Restoration and 
Mitigation Leases.

    (a) If a restoration or mitigation lease provides by its terms that 
it shall terminate on the occurrence of a fixed or agreed-upon event, 
the restoration or mitigation lease shall automatically terminate by 
operation of law upon the occurrence of such event.
    (b) A restoration or mitigation lease may be terminated by mutual 
written agreement between the authorized officer and the lease holder.
    (c) Authorized officers have discretion to suspend or terminate 
restoration or mitigation leases under the following circumstances:
    (1) Improper issuance of the lease;
    (2) Noncompliance by the holder with applicable law, regulations, 
or terms and conditions of the lease;
    (3) Failure of the holder to use the lease for the purpose for 
which it was authorized; or
    (4) Impossibility of fulfilling the purposes of the lease.
    (d) Upon determination that the holder has failed to comply with 
any terms or conditions of a lease and that such noncompliance 
adversely affects or poses a threat to land or public health or safety, 
or impacts ecosystem resilience, the authorized officer shall issue an 
immediate temporary suspension.
    (1) The authorized officer may issue an immediate temporary 
suspension order orally or in writing at the site of the activity to 
the holder or a contractor or subcontractor of the holder, or to any 
representative, agent, employee, or contractor of any such holder, 
contractor, or subcontractor, and the suspended activity shall cease at 
that time. As soon as practicable, the authorized officer shall confirm 
the order by a written notice to the holder addressed to the holder or 
the holder's designated agent. The authorized officer may also take 
such action that the authorized officer considers necessary to address 
the adverse effects or threat to land or public health or safety or 
impacts to ecosystem resilience.
    (2) The authorized officer may order immediate temporary suspension 
of an activity independent of any action that has been or is being 
taken by another Federal or State agency.
    (3) Any time after an order of temporary suspension has been 
issued, the holder may file with the authorized officer a request for 
permission to resume activities authorized by the lease. The request 
shall be in writing and shall contain a statement of the facts 
supporting the request. The authorized officer may grant the request 
upon determination that the adverse effects or threat to land or public 
health or safety or impacts to ecosystem resilience are resolved.
    (4) The authorized officer may render an order to either grant or 
deny the request to resume within 30 working days of the date the 
request is filed. If the authorized officer does not render an order on 
the request within 30 working days, the request shall be considered 
denied, and the holder shall have the same right to appeal as if an 
order denying the request had been issued.
    (e) Process for termination or suspension other than temporary 
immediate suspension.
    (1) Prior to commencing any proceeding to suspend or terminate a 
lease, the authorized officer shall give written notice to the holder 
of the legal grounds for such action and shall give the holder a 
reasonable time to address the legal basis the authorized officer 
identifies for suspension or termination.
    (2) After due notice of termination or suspension to the holder of 
a restoration or mitigation lease, if grounds for suspension or 
termination still exist after a reasonable time, the authorized officer 
shall give written notice to the holder and refer the matter to the 
Office of Hearings and Appeals for a hearing before an administrative 
law judge pursuant to 43 CFR part 4. The authorized officer shall 
suspend or revoke the restoration or mitigation lease if the 
administrative law judge determines that grounds for suspension or 
revocation exist and that such action is justified.
    (3) Authorized officers shall terminate a suspension order when 
they determine that the grounds for such suspension no longer exist.
    (4) Upon termination of a restoration or mitigation lease, the 
holder shall, for 60 days after the notice of termination, retain 
authorization to use the associated public lands solely for the 
purposes of reclaiming the site to its pre-use conditions consistent 
with achieving land health fundamentals, unless otherwise agreed upon 
in writing or in the lease terms. If the holder fails to reclaim the 
site consistent with the requirements of the lease terms within a 
reasonable period, all authorization to use the associated public lands 
will terminate, but that shall not relieve the holder of liability for 
the cost of reclaiming the site.


Sec.  6102.4.2   Bonding for Restoration and Mitigation Leases.

    (a) Bonding obligations. (1) Prior to the commencement of surface-
disturbing or active management activities, the authorized officer may 
require the restoration or mitigation lease holder to submit a 
reclamation, decommission, or performance bond conditioned upon 
compliance with all the terms and conditions of the lease covered by 
the bond, as described in this subpart. For mitigation leases, the 
lease holder will usually be required to provide letters of credit or 
establish an escrow account for the full amount needed to ensure the 
development plan meets all performance criteria. The bond amounts shall 
be sufficient to ensure reclamation of the restoration and mitigation 
lease area(s) and the restoration of any lands or surface waters 
adversely affected by restoration or mitigation lease operations. Such 
restoration may be required after the abandonment or cessation of 
operations by the restoration or mitigation lease holder in accordance 
with, but not limited to, the standards and requirements set forth by 
authorized officers.

[[Page 40345]]

    (2) Considerations for requiring a bond include, but are not 
limited to:
    (i) The type and level of active restoration;
    (ii) Amount and type of surface disturbing activity;
    (iii) Proposed use of non-natural restoration methods, such as the 
use of pesticides;
    (iv) Proposed use of experimental methods of restoration;
    (v) Risk of compounding effects resulting from restoration 
activities, such as a proliferation of invasive species; and
    (vi) Fire risk.
    (3) Surety bonds shall be issued by qualified surety companies 
certified by the Department of the Treasury.
    (4) Personal bonds shall be accompanied by:
    (i) Cashier's check;
    (ii) Certified check; or
    (iii) Negotiable Treasury securities of the United States of a 
value equal to the amount specified in the bond. Negotiable Treasury 
securities shall be accompanied by a proper conveyance to the Secretary 
of full authority to sell such securities in case of default in the 
performance of the terms and conditions of a conservation use 
authorization.
    (b) In lieu of bonds for each individual restoration or mitigation 
lease, holders may furnish a bond covering all restoration or 
mitigation leases and operations in any one State. Such a bond must be 
at least $25,000 and must be sufficient to ensure reclamation of all of 
the holder's restoration or mitigation lease area(s) and the 
restoration of any lands or surface waters adversely affected by 
restoration or mitigation lease operations in the State.
    (c) All bonds shall be filed in the proper BLM office on a current 
form approved by the Office of the Director. A single copy executed by 
the principal or, in the case of surety bonds, by both the principal 
and an acceptable surety is sufficient. Bonds shall be filed in the 
Bureau State Office having jurisdiction of the restoration or 
mitigation lease covered by the bond.
    (d) Default.
    (1) Where, upon a default, the surety makes a payment to the United 
States of an obligation incurred under a restoration or mitigation 
lease, the face amount of the surety bond or personal bonds and the 
surety's liability thereunder shall be reduced by the amount of such 
payment.
    (2) After default, where the obligation in default equals or is 
less than the face amount of the bond(s), the principal shall either 
post a new bond or restore the existing bond(s) to the amount 
previously held or a larger amount as determined by authorized 
officers. In lieu thereof, the principal may file separate or 
substitute bonds for each conservation use covered by the deficient 
bond(s). Where the obligation incurred exceeds the face amount of the 
bond(s), the principal shall make full payment to the United States for 
all obligations incurred that are in excess of the face amount of the 
bond(s) and shall post a new bond in the amount previously held or such 
larger amount as determined by authorized officers. The restoration of 
a bond or posting of a new bond shall be made within 6 months or less 
after receipt of notice from authorized officers.
    (3) Failure to comply with these requirements may:
    (i) Subject all leases covered by such bond(s) to termination under 
the provisions of this title;
    (ii) Prevent the bond obligor or principal from acquiring any 
additional restoration or mitigation leases or interest therein under 
this subpart; and
    (iii) Result in the bond obligor or principal being referred to the 
suspension and debarment program under 2 CFR part 1400 to determine if 
the entity will be suspended or debarred from doing business with the 
Federal Government.


Sec.  6102.5  Management Actions for Ecosystem Resilience.

    (a) Authorized officers must:
    (1) Identify priority watersheds, landscapes, and ecosystems that 
require protection and restoration efforts (see Sec. Sec.  6102.2 and 
6102.3.1);
    (2) Develop and implement plans and strategies, including 
protection, restoration, and mitigation strategies that effectively 
manage public lands to protect and promote resilient ecosystems (see 
Sec. Sec.  6102.1, 6102.3.1, 6102.5.1, 6103.1.2);
    (3) Develop and implement monitoring and adaptive management 
strategies for maintaining sustained yield of renewable resources, 
accounting for changing landscapes, fragmentation, invasive species, 
and other disturbances (see Sec.  6103.2);
    (4) Report annually on the results of land health evaluations, and 
determinations (see Sec.  6103.1.2);
    (5) Ensure that watershed condition assessments incorporate 
consistent analytical approaches (see Sec.  6103.2) both among 
neighboring BLM State Offices and with the fundamentals of land health; 
and
    (6) Share watershed condition assessments in a publicly available 
national database to determine changes in watershed condition and 
record measures of success based on conservation and restoration goals.
    (b) In taking management actions, and as consistent with applicable 
law and resource management plans, such as where an area is managed for 
recreation or is degraded land prioritized for development, authorized 
officers must:
    (1) Make every effort to avoid authorizing uses of the public lands 
that permanently impair ecosystem resilience;
    (2) Promote opportunities to support conservation and other actions 
that work toward achieving land health standards and ecosystem 
resilience;
    (3) Issue decisions that promote the ability of ecosystems to 
passively recover or the BLM's ability to actively restore ecosystem 
composition, structure, and function;
    (4) Meaningfully consult with Indian Tribes and Alaska Native 
Corporations during the decision-making process on actions that are 
determined, after allowing for Tribal input, to potentially have a 
substantial effect on the Tribe or Corporation;
    (5) Allow State, Tribal, and local agencies to serve as joint lead 
agencies consistent with 40 CFR 1501.7(b) or as cooperating agencies 
consistent with 40 CFR 1501.8(a) in the development of environmental 
impact statements or environmental assessments;
    (6) Respect Indigenous Knowledge, by:
    (i) Improving engagement and expanding co-stewardship of public 
lands with Tribal entities;
    (ii) Encouraging Tribes to suggest ways in which Indigenous 
Knowledge can be used to inform the development of alternatives, 
analysis of effects, and when necessary, identification of mitigation 
measures; and
    (iii) Communicating to Tribes in a timely manner and in an 
appropriate format how their Indigenous Knowledge was included in 
decision-making, including addressing management of sensitive 
information;
    (7) Seek opportunities to restore or protect ecosystem resilience 
when the effects of potential uses are unknown; and
    (8) Provide justification for decisions that may impair ecosystem 
resilience.
    (c) Authorized officers must use high-quality inventory, 
assessment, and monitoring data, as available and appropriate, to 
evaluate resource conditions and inform decision-making across program 
areas (see Sec.  6103.2(c)), specifically by:
    (1) Identifying clear goals or desired outcomes relevant to the 
management decision;

[[Page 40346]]

    (2) Gathering high-quality information relevant to the management 
decision, including standardized quantitative monitoring data and data 
about land health;
    (3) Selecting relevant indicators for each applicable management 
question (e.g., land health standards, restoration effectiveness, 
assessments of intactness);
    (4) Establishing a framework for translating indicator values to 
condition categories (such as quantitative monitoring objectives or 
science-based conceptual models); and
    (5) Summarizing results and ensuring that a clear and 
understandable rationale is documented, explaining how the data were 
used to make the decision.


Sec.  6102.5.1  Mitigation.

    (a) The BLM will apply the mitigation hierarchy to avoid, minimize, 
and compensate, as appropriate, for adverse impacts to resources when 
authorizing uses of public lands. As appropriate, the authorized 
officer may identify specific mitigation approaches or requirements to 
address resource impacts through land use plans or in other decision 
documents.
    (b) For important, scarce, or sensitive resources, authorized 
officers shall apply the mitigation hierarchy with particular care, 
with the goal of eliminating, reducing, and/or offsetting impact on the 
resource, consistent with applicable law.
    (c) When implementing the mitigation hierarchy, including 
authorizing mitigation leases, the BLM will:
    (1) Use a landscape-scale approach to develop and implement 
mitigation strategies that identify mitigation needs and opportunities 
in a geographic area, including opportunities for the siting of large, 
market-based mitigation programs or projects (e.g., mitigation banks) 
on public lands;
    (2) Use high-quality information to inform the identification and 
analysis of adverse impacts, to determine appropriate mitigation 
programs or projects for those impacts, and to achieve appropriate and 
effective mitigation outcomes;
    (3) Require identification of performance criteria for mitigation 
programs or projects, effectiveness monitoring of those performance 
criteria, and reports that assess the achievement of those performance 
criteria;
    (4) Use adaptive management principles to guide and improve 
mitigation outcomes; and
    (5) Ensure that any compensatory mitigation programs or projects 
are commensurate with the applicable adverse impacts and that the 
required compensatory mitigation programs and projects are durable, 
additional, and timely.
    (6) As used in this section, the terms additional, commensurate, 
durable, and timely have the following definitions:
    (i) Additional means the compensatory mitigation program or 
project's benefit is demonstrably new and would not have occurred 
without the compensatory mitigation measure.
    (ii) Commensurate means the compensatory mitigation program or 
project is reasonably related and proportional to the adverse impact 
from authorizing uses of public lands.
    (iii) Durable means the maintenance of the effectiveness of a 
mitigation program or project, including resource, administrative, and 
financial considerations.
    (iv) Timely means the lack of a time lag between the impact to the 
resources and the achievement of the outcomes of the associated 
compensatory mitigation.
    (d) The BLM may approve, through a formal agreement, a third-party 
mitigation fund holder to administer funds for the implementation of 
compensatory mitigation programs or projects. A BLM-approved third-
party mitigation fund holder may:
    (1) Collect mitigation funds from permittees;
    (2) Manage funds in accordance with agency decision documents, use 
authorizations and applicable law; and
    (3) Disperse those funds in accordance with agency decision 
documents, use authorizations, and applicable law.
    (e) Approved third-party mitigation fund holders must file with the 
BLM annual fiscal reports. To qualify as a third-party mitigation fund 
holder, the entity must either:
    (1) Qualify for tax-exempt status in accordance with Internal 
Revenue Code section 501(c)(3); provide evidence that they can 
successfully hold and manage mitigation accounts; be a public charity 
bureau for the State in which the mitigation area is located, or 
otherwise comply with applicable State laws; be a third party 
organizationally separate from and having no corporate or family 
connection to the entity accomplishing the mitigation program or 
project, BLM employees, or the permittee; adhere to generally accepted 
accounting practices that are promulgated by the Financial Accounting 
Standards Board, or any successor entity; and have the capability to 
hold, invest, and manage the mitigation funds to the extent allowed by 
law; or
    (2) Be a State or local government agency, if the government agency 
is able to demonstrate, to the satisfaction of the BLM, that:
    (i) it is acting as a fiduciary for the benefit of the mitigation 
project or site and can show that it has the authority and ability to 
collect the funds, protect the account from being used for purposes 
other than the management of the mitigation project or site, and 
disburse the funds to the entities conducting the mitigation project or 
management of the mitigation site;
    (ii) it is organizationally separate from and has no corporate or 
family connection to the entity accomplishing the mitigation program or 
project, BLM employees, or the permittee; and
    (iii) it adheres to generally accepted accounting practices that 
are promulgated by the Governmental Accounting Standards Board or any 
successor entity.
    (f) Authorized officers will require mitigation leases and collect 
annual rent at fair market value for large or otherwise substantial 
compensatory mitigation programs or projects on public lands, including 
mitigation banks and in-lieu fee programs. Mitigation leases may be 
required for other compensatory mitigation projects on public lands at 
the discretion of the authorized officer.
    (g) In addition to the general requirements for mitigation leases 
(Sec.  6102.4), in some circumstances, authorized officers may require 
that mitigation lease holders submit to the agency a formal agreement 
with a qualified mitigation fund holder as defined in paragraph (d) of 
this section.
    (h) An application for a mitigation lease for a mitigation bank or 
an in-lieu fee program, in addition to the requirements in (Sec.  
6102.4(c)), must also include sufficient information about the 
anticipated demand for and duration of the mitigation bank or in-lieu 
fee program, the anticipated types of mitigation projects that will be 
conducted, and the methods that will be used to generate, evaluate, 
assess, and maintain the mitigation projects.
    (i) Authorized officers will ensure that compensatory mitigation 
programs and projects, including those with mitigation leases, are 
tracked in the appropriate BLM data systems.

Subpart 6103--Managing Land Health To Achieve Ecosystem Resilience


Sec.  6103.1  Land Health Standards.

    (a) The BLM shall develop national land health standards that 
facilitate progress toward achieving the following fundamentals of land 
health across all ecosystems on lands managed by the BLM:

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    (1) Watersheds are in, or are making significant progress toward, 
properly functioning physical 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.
    (2) 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.
    (3) Water quality complies with State water quality standards and 
achieves, or is making significant progress toward achieving, BLM 
management objectives established in the land use plan, such as meeting 
wildlife needs.
    (4) 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.
    (b) Land health fundamentals will be advanced through national land 
health standards that, at a minimum, address the following resources, 
processes, and values:
    (1) Upland hydrologic function;
    (2) Riparian, wetland, and aquatic hydrologic function;
    (3) Upland ecological processes and biotic communities, including 
connectivity, and intactness of native plant and animal habitats;
    (4) Riparian, wetland, and aquatic ecological processes and biotic 
communities including condition, connectivity, and intactness of native 
plant and animal habitats;
    (5) Water quality; and
    (6) Habitat condition connectivity and intactness for Federal 
threatened and endangered species, Federal proposed or candidate 
threatened and endangered species, and other special status species.
    (c) To facilitate land health evaluations, the national land health 
standards will include indicators that are broadly applicable across 
the major ecosystem or habitat types (e.g., forest, rangeland, cold 
water fisheries) the BLM manages, and will include indicators derived 
from standardized datasets.
    (d) Authorized officers must manage all program areas in accordance 
with the fundamentals of land health and standards, as provided in this 
subpart. Authorized officers must adopt the national standards and 
indicators, and may, when necessary, incorporate geographically 
distinct land health standards and indicators to evaluate rare or 
unique habitat or ecosystem types (e.g., permafrost) if such habitats 
or ecosystems cannot be evaluated using the national land health 
standards and indicators.
    (e) Rangeland health standards developed under 43 CFR subpart 4180 
will be reviewed and amended or supplemented as necessary to 
incorporate the national standards and indicators within 3 years of the 
effective date of these regulations. Subsequently, authorized officers 
shall review all land health standards for sufficiency at least every 
10 years.
    (f) Amended land health standards must be approved by the 
appropriate BLM State Director prior to implementation.


Sec.  6103.1.1   Management for Land Health.

    (a) To facilitate ecosystem resilience, authorized officers should 
use watershed condition assessments (see Sec.  6103.2), and land health 
evaluations and causal factor determinations to support decision-
making. Such action promotes efficiency, supports environmental 
analysis, and streamlines decision-making.
    (b) To facilitate ecosystem resilience, authorized officers must 
manage all program areas to progress toward achieving land health 
standards.
    (1) Authorized officers must apply approved land health standards, 
as revised from rangeland health standards previously established under 
subpart 4180 of this chapter (fundamentals of rangeland health), across 
all ecosystems managed by the BLM.
    (2) Programs that authorize and manage uses or implement management 
actions on public land will develop management guidelines, which are 
best management practices designed to facilitate progress toward 
achievement and maintenance of land health standards.
    (i) Authorized officers may develop or adopt additional management 
guidelines to address local ecosystems and management practices.
    (ii) Programs and authorized officers will review management 
guidelines for sufficiency and make necessary revisions at least every 
10 years in conjunction with the review of land health standards 
described in this subpart.
    (c) Land use plans must identify the allocations and actions 
anticipated to achieve desired land health outcomes, including actions 
to maintain or restore land health in accordance with the land health 
standards. These actions include, but are not limited to, prioritizing 
development in degraded areas as well as prioritizing and implementing 
restoration actions (see Sec.  6102.3).
    (d) Land use plans shall identify statutory, regulatory, and other 
requirements that may prevent achievement of land health standards.
    (1) Best management practices and mitigation measures to minimize 
effects to land health resulting from these requirements should be 
identified and required where practicable.
    (2) Environmental effects analysis, consistent with NEPA 
requirements, for proposed management actions must consider effects to 
relevant land health standards.


Sec.  6103.1.2   Land Health Evaluations and Determinations.

    (a) Authorized officers shall rely on watershed condition 
assessments when possible to complete land health evaluations for BLM-
managed lands on a periodic basis, at least every 10 years (Sec.  
6103.2).
    (b) Authorized officers must determine the priority landscape and 
appropriate scale for completing land health evaluations based on 
resource concerns and, as necessary, to support decision-making 
processes.
    (c) Authorized officers must consider available watershed condition 
assessments and existing land health assessments, evaluations, and 
determinations in the course of decision-making processes for all 
program areas.
    (d) Land health evaluations interpret watershed condition 
assessments, including locally relevant high-quality information to 
draw conclusions about whether land health standards are achieved on 
public lands. In the course of conducting land health evaluations, 
authorized officers should:
    (1) Consider multiple lines of evidence to evaluate achievement of 
each standard;
    (2) Identify trends toward or away from desired conditions through 
analysis of high-quality information available over relevant time 
periods and spatial scales;
    (3) Document the rationale and findings as to whether each land 
health standard is achieved or significant progress is being made 
towards its achievement; and
    (4) Develop an interdisciplinary monitoring plan with quantitative 
objectives that can be measured to demonstrate significant progress 
when a land health evaluation report identifies that any standard is 
not achieved but significant progress is being made towards 
achievement.
    (e) When conducting a land health evaluation, if the authorized 
officer

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finds that resource conditions are achieving or making significant 
progress toward achieving land health standards, no additional land 
health analysis is needed to authorize a use or permit activities.
    (f) When conducting a land health evaluation, if the authorized 
officer finds that resource conditions are not achieving or making 
significant progress toward achieving land health standards, a 
documented causal factor determination must be prepared as soon as 
practicable but no later than 1 year after completion of the land 
health evaluation identifying the nonachievement. Causal factor 
determinations use available data to identify significant causal 
factors and describe contributing causal factors or conditions leading 
to non-achievement of standards.
    (1) If the authorized officer determines sufficient information 
exists to identify and address the significant causal factors 
preventing resources from achieving or making significant progress 
towards achieving land health standards, no further land health 
analysis is required to address such factors.
    (2) If the authorized officer determines insufficient information 
exists to identify and address the significant causal factors 
preventing resources from achieving or making significant progress to 
achieving land health standards, additional information, assessment and 
evaluation may be needed at finer scale.
    (3) The authorized officer must take appropriate actions to 
facilitate achievement or significant progress toward achievement of 
land health standards as soon as practicable, unless otherwise 
specified in the land use plan, or when significant causal factors are 
outside of BLM control (e.g., lack of streamflow due to dewatering on 
connected lands not administered by the BLM).
    (4) To the extent existing grazing management practices or levels 
of grazing use on public lands are identified as significant causal 
factors preventing resources from achieving or making significant 
progress towards achieving land health standards, authorized officers 
must proceed under Sec.  4180.2(c) of this chapter. by taking 
appropriate action as soon as practicable but no later than the start 
of the next grazing year.
    (5) Taking appropriate action means implementing actions that will 
result in significant progress toward achieving land health standards. 
Appropriate action must be consistent with applicable law, regulation, 
and the governing land use plan and its management objectives, such as 
where an area is managed for recreation or is degraded land prioritized 
for development. Appropriate actions may include, but are not limited 
to:
    (i) Establishment or modification of terms and conditions for 
permits, leases, and other use authorizations;
    (ii) Development and implementation of activity plans;
    (iii) Implementation of adaptive management actions; and
    (iv) Control of unauthorized use.
    (g) Upon determining that significant causal factors other than 
current management practices are preventing achievement of land health 
standards, but are not outside of BLM control (e.g., presence of 
invasive species), the authorized officer shall identify and prioritize 
appropriate actions that may result in significant progress toward 
achievement of land health standards (see Sec.  6102.5).
    (h) Subject to other applicable law, authorized officers may 
implement restoration plans, modify authorized uses, or implement other 
management actions to increase expediency and effectiveness of progress 
towards achieving land health standards, to protect areas achieving 
land health standards, or to meet other objectives.
    (i) If current authorized uses are determined to be significant 
causal factors and the authorized officer determines appropriate action 
is needed, then appropriate action must be consistent with the 
governing land use plan. Changes to some types of authorized uses may 
first warrant an amendment to the land use plan to allow the authorized 
officer to adjust those uses sufficient to make progress toward meeting 
land health standards. However, whether to undertake a planning process 
is at the discretion of the authorized officer.
    (j) Authorized officers will report annually on land health 
evaluation, and determination accomplishments; results; and actions 
taken to address areas not achieving or making progress toward 
achieving standards.
    (k) The BLM will maintain and annually update a publicly available 
record of land health evaluation and determination results and 
management actions taken to facilitate progress toward achieving land 
health standards.


Sec.  6103.2  Inventory, Assessment, and Monitoring.

    (a) Watershed condition assessments must be completed at least once 
every 10 years and used to inform land use planning, protect intact 
landscapes (Sec.  6102.2), manage for ecosystem resilience (Sec.  
6102.5), inform restoration actions (Sec.  6102.3), and inform land 
health evaluations and determinations (Sec.  6103.1.1). Watershed 
condition assessments assess and synthesize information on the 
condition of soil, water, habitats, and ecological processes within 
watersheds relative to the BLM's land health fundamentals and the 
national land health standards. When conducting watershed condition 
assessments, the BLM must:
    (1) Compile and analyze multiple sources of high-quality 
information to understand conditions and trends relevant to each land 
health standard, including remote sensing products, field-based data, 
and other data gathered through inventory, assessment, and monitoring 
activities; and
    (2) Incorporate consistent analytical approaches, quantitative 
indicators, and benchmarks where practicable.
    (b) The BLM will maintain a publicly available inventory of 
infrastructure and natural resources on public lands. This inventory 
must include both critical landscape components (e.g., roads, land 
types, streams, habitats) and core indicators that address land health 
fundamentals.
    (c) Authorized officers will use high-quality inventory, 
assessment, and monitoring information, including standardized 
quantitative monitoring data, remote sensing maps, and geospatial 
analyses, to inform decision-making across program areas, including, 
but not limited to:
    (1) Authorization of permitted uses;
    (2) Land use planning;
    (3) Watershed condition assessments and land health evaluations;
    (4) Restoration planning, including prioritization;
    (5) Assessments of restoration effectiveness;
    (6) Consideration of areas of critical environmental concern;
    (7) Evaluation and protection of intact landscapes;
    (8) Restoration and mitigation leasing; and
    (9) Other decision-making processes.
    (d) Authorized officers must inventory, assess, and monitor 
activities as necessary to inform the decision-making processes 
identified in paragraph (b) of this section and, in so doing, must 
employ the following:
    (1) Interdisciplinary monitoring plans for providing data relevant 
to decision makers;
    (2) Standardized field protocols and indicators to allow data 
comparisons through space and time in support of multiple management 
decisions;
    (3) Appropriate sample designs to minimize bias and maximize 
applicability of collected data;

[[Page 40349]]

    (4) Integration with remote sensing products to optimize sampling 
and calibrate continuous map products; and
    (5) Data management and stewardship to ensure data quality, 
accessibility, and use.

[FR Doc. 2024-08821 Filed 5-8-24; 8:45 am]
BILLING CODE 4331-27-P