Reinstating the Bureau of Land Management (BLM) Manual Section (MS-1794) and Handbook (H-1794-1) on Mitigation

United States Department of the Interior
BUREAU OF LAND MANAGEMENT
Grand Junction, Colorado  81506
http://www.blm.gov

September 22, 2021

In Reply Refer To:
1794 (210) P

EMS TRANSMISSION 10/05/2021
Instruction Memorandum No. 2021-046
Expires:  09/30/2024

To:                  State Directors

From:              Assistant Director, Resources and Planning

Subject:           Reinstating the Bureau of Land Management (BLM) Manual Section (MS-1794) and Handbook (H-1794-1) on Mitigation

Program Area: All Resource Programs.

Purpose: This Instruction Memorandum (IM) reinstates the BLM’s Manual Section (MS-1794) (Attachment 1) and Handbook (H-1794-1) (Attachment 2). The Mitigation Manual and Handbook provide policy and guidance on implementing mitigation to address impacts to resources from public land uses.

Administrative or Mission Related: This IM is directly related to the BLM mission.

Policy/Action: The purpose of MS-1794 and H-1794-1 is to support the Bureau of Land Management's (BLM) multiple use and sustained yield mission as defined under the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701 et seq.) (FLPMA) by providing policies to:

1. 1. 1. 1. Implement consistent principles and procedures for mitigation in the BLM's authorization of public land uses;
         2. Apply mitigation to address reasonably foreseeable impacts to resources (and their values, services, and/or functions) from public land uses; and
         3. Follow the mitigation hierarchy by first avoiding damage to the public lands and resources; second, minimizing damage that cannot be avoided; and third, compensating for any residual impacts to important, scarce, or sensitive resources or resources protected by law.

These policies direct the BLM to implement mitigation through a landscape-scale approach, utilize best management practices, maintain durability for mitigation measures, monitor mitigation measures for compliance and effectiveness, and adaptively manage mitigation measures, among several other policy provisions. These policies guide the BLM in the use of best science to support the Department’s commitment to honor the Nation’s trust responsibilities and conserve and manage the Nation’s natural resources and cultural heritage.

State directors are hereby directed to notify their state office mitigation lead, who will be responsible for facilitating implementation of this policy, providing technical assistance, and coordinating with headquarters, other state, district, and field offices, consistent with the direction in the BLM Mitigation Manual Section and Handbook. The state office mitigation lead will continue to serve as a member of the National Mitigation Team.

Timeframe: This IM, MS-1794, and H-1794-1 are effective upon issuance. For NEPA documents that are near completion for an action (e.g., preliminary Draft Environmental Impact Statement (EIS) is in the final stages of review), implementation of this policy may be modified to fit the specific circumstances so as not to delay publication of the NEPA document and approval of the project(s). This IM does not affect any existing, signed Record of Decision or Decision Record that is currently in effect.

Budget Impact: The BLM may incur initial costs related to developing mitigation strategies and implementing mitigation into land use plans. There is likely to be a net savings to the BLM from implementing mitigation with advanced consideration and on a landscape-scale versus identifying appropriate mitigation measures and sites on a case-by-case basis.

Background: Consistent with the Federal Land Policy and Management Act (FLPMA), the BLM has long analyzed and applied mitigation to account for the impacts caused by land use authorizations to public land resources. For many years, the BLM worked to establish policy to make mitigation for resources across the Bureau more consistent and predictable. The BLM first developed an interim compensatory mitigation policy in February 2005 and released a more comprehensive revised interim policy in September 2008. The 2005 policy focused on the BLM’s approach to onsite and compensatory mitigation for the BLM’s oil and gas, geothermal, and energy right-of-way programs. The 2008 revision broadened the scope of the 2005 interim policy by including other BLM program areas and further defining the circumstances and methods for considering compensatory mitigation.

In June 2013, the BLM issued a new interim mitigation policy (draft MS-1794). This interim policy provided procedures and instructions for taking a landscape approach to mitigation, determining mitigation standards, and targeting mitigation investments. The policy also provided guidance for developing regional mitigation strategies to solve resource challenges in particular geographic areas and for applying consideration of the full mitigation hierarchy to land-use authorizations. By releasing this policy on an interim basis, the BLM was able to gather important lessons learned and seek additional input.

In the fall of 2013, Secretary Jewell released Secretarial Order 3330, Improving Mitigation Policies and Practices of the Department of the Interior. In October 2015, the Department issued a Departmental Manual chapter outlining key principles and direction for executing mitigation at Department bureaus and offices, and the Executive Office of the President published a Presidential Memorandum on “Mitigating Impacts on Natural Resources from Development and Encouraging Related Private Investment.” MS-1794 and H-1794-1 were developed to be consistent with Departmental policy and the Presidential Memorandum, in addition to similar policies being developed by other natural-resource agencies, and incorporate key lessons learned since release of the interim mitigation policy.

Executive Order 13783, Promoting Energy Independence and Economic Growth (March 28, 2017) rescinded the Presidential Memorandum relating to the mitigation of impacts on natural resources. In response to EO 13783, Secretary’s Order (SO) 3349, American Energy Independence (March 29, 2017), rescinded SO 3330 and directed the Department to review guidance documents and policies that potentially burden the development or utilization of domestically produced energy resources. Secretarial Order 3360, Rescinding Authorities Inconsistent with Secretary’s Order 3349, American Energy Independence, rescinded BLM Manual Section 1794 (Dec. 22, 2016) and BLM Mitigation Handbook H-1794-1 (Dec. 22, 2016) on mitigation and directed the BLM to reissue new policy guidance on compensatory mitigation. This resulted in issuance of IM No. 2018-093, Compensatory Mitigation (July 24, 2018), which was replaced by IM No. 2019-018, Compensatory Mitigation (December 6, 2018).

President Biden issued EO 13990, Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis (January 20, 2021), which revoked EO 13783, Promoting Energy Independence and Economic Growth (March 28, 2017). Secretary Haaland issued SO 3398, Revocation of Secretary’s Orders Inconsistent with Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis (April 16, 2021), which revoked SO 3349 and SO 3360, which were found to be inconsistent with EO 13990, and directed that all policies and instructions that implemented the above revoked SOs or that are otherwise inconsistent with the policies set forth in EO 13990 be reviewed and revised, as necessary. The Compensatory Mitigation IM (IM No. 2019-018) was found to be inconsistent with EO 13990 and SO 3398, and after careful review of IM 2019-018, the BLM determined that it unduly constrained the BLM’s broad discretion to manage the public lands under FLPMA, and on July 12, 2021, IM 2019-018 was rescinded by IM 2021-038.

The Mitigation Manual (MS-1794) and Handbook (H-1794-1) are aligned with EO 13990, SO 3398, the priorities of the Department, and make clear that FLPMA vests the BLM with broad discretion to manage the public lands under principles of multiple use and sustained yield. The Mitigation Manual Section and Handbook were initially released in 2016. Some of the references cited in the 2016 release of the Mitigation Manual and Handbook were revised or rescinded since it’s first release. This release of the Manual and Handbook has been revised to reflect updates in the cited references. Additional revisions to these policy documents may be made in the future to reflect other policy updates.

Manual/ Handbook Sections Affected: This IM reinstates MS-1794 and H-1794-1. Among other manuals and handbooks, MS-1794 and H-1794-1 affect the BLM National Environmental Policy Act (NEPA) Handbook (H-1790-1) and the Land Use Planning Handbook (H-1601-1).

Coordination: The development of MS-1794 and H-1794-1 involved substantial coordination within the Headquarters Office (including the Director’s Office, Resources and Planning Directorate, Energy, Minerals, Realty Management Directorate, and the National Conservation Lands and Community Partnerships Directorate), with each state office, and with several field offices. Additionally, the Headquarters Office formed a team to support drafting these policies; team members represented all levels of the agency. The policy was also coordinated with the Office of the Solicitor and the Department of the Interior at the time it was developed.

Contact: State directors may direct any questions related to this IM, MS-1794, and H-1794-1 to David Jenkins (Assistant Director for Resources and Planning, djenkins@blm.gov).

Signed by:                                           Authenticated by:
David Jenkins                                     Robert M. Williams
Assistant Director, Resources and      Division of Regulatory Affairs and Directives,(HQ-630)
   Planning

2 Attachments

1. Mitigation Manual Section MS-1794 (31 pp)
2. Mitigation Handbook H-1794-1 (78 pp)