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HomeMy WebLinkAboutC22-210 MOU US Dept. of Interior_UCRD_BLMMEMORANDUM OF UNDERSTANDING AMONG THE U.S. DEPARTMENT OF INTERIOR, BUREAU OF LAND MANAGEMENT, UPPER COLORADO RIVER DISTRICT AND EAGLE COUNTY, COLORADO FOR DEVELOPMENT OF THE SUPPLEMENTAL EIS FOR THE COLORADO RIVER VALLEY AND GRAND JUNCTION RESOURCE MANAGEMENT PLANS I. Introduction The U.S. Department of the Interior, Bureau of Land Management, Upper Colorado River District (herein referred to as “BLM”), and Eagle County, Colorado, collectively referred to herein as “the Parties,” enter this Memorandum of Understanding (MOU) establishing a cooperating agency relationship, providing a framework for cooperation and coordination, and documenting agreed upon procedures, roles, and responsibilities associated with the preparation of the proposed Supplemental Environmental Impact Statement (SEIS) for the Colorado River Valley Field Office (CRVFO) and Grand Junction Field Office (GJFO) Resource Management Plans (RMP). The BLM is the lead agency with responsibility for the completion of the SEIS and the Record of Decision. The BLM acknowledges that the Cooperator has special expertise applicable to the SEIS effort, as defined at 40 CFR §1508.1. Eagle County is a Cooperating Agency due to expertise with County plans and resources within the County. The cooperating agency relationship established through this MOU shall be governed by all applicable statutes, regulations, and policies, including the Council on Environmental Quality’s National Environmental Policy Act (NEPA) regulations (in particular, 40 CFR 1501.7-8), the BLM’s planning regulations (in particular, 43 CFR 1601.0-5, 1610.3-1, and 1610.4), and the Department of the Interior Manual (516 DM 2.5). This MOU will facilitate an environmental review process that will satisfy the purpose for the SEIS. II. Background The Wilderness Workshop, Western Colorado Congress, Natural Resources Defense Council, and Sierra Club challenged the 2015 CRVFO RMP in the U.S. District Court of Colorado (CV 16-cv-01822-LTB). In an opinion and order on October 17, 2018, the U.S. District Court for the District of Colorado found that the BLM violated NEPA on two DocuSign Envelope ID: 200BE940-2EFD-417C-A3BB-9D8383962876 2 causes and ordered BLM and plaintiffs to reach agreement as to remedies. The plaintiffs and U.S. Department of Justice reached a settlement agreement to resolve the issue of remedy on September 16, 2019. The two deficiencies identified by the court for the CRVFO RMP are “BLM failed to consider reasonable alternatives to oil and gas leasing and development” and “BLM failed, in part, to take a hard look at the severity and impacts of greenhouse gas (GHG) pollution. Namely, it failed to take a hard look at the reasonably foreseeable indirect impacts of oil and gas.” The Center for Biological Diversity, The Wilderness Society, and Wilderness Workshop challenged the 2015 GJFO RMP in the U.S. District Court of Colorado (CV 19-cv-02869). The Federal Government motioned for a voluntary remand (without vacatur and without ruling) of the decision to approve the GJFO RMP so that BLM can prepare supplemental analysis to address portions of the RMP analysis affected by the deficiencies identified in the CRVFO decision (CV 16-cv-01822-LTB). The SEIS will consider one or more reasonable alternatives with respect to the lands that are allocated as open or closed to oil and gas leasing in the planning decision areas. The SEIS will quantify and reanalyze the indirect effects that combustion of oil and gas may have on greenhouse gas emissions associated with fluid mineral management alternatives considered in the Final EISs and the SEIS. The SEIS will have air quality analysis for the original four alternatives in the 2015 RMPs as well as for the new alternative(s). Analysis will also include other resources impacted by the new alternative(s). The No Action alternative for the SEIS will be the decisions approved for the 2015 RMPs for CRVFO and GJFO. III. Purpose A. To recognize the BLM as the lead agency with responsibility for the completion of the SEIS and Record of Decision (ROD). The BLM determined a SEIS should be prepared consistent with the requirement from the court and the settlement agreement. B. To recognize Eagle County as a Cooperating Agency in the SEIS process. C. To provide a framework for cooperation and coordination between the BLM and the Cooperator that will ensure successful completion of the SEIS in a timely, efficient, and thorough manner that satisfies compliance requirements, including completion of a document in less than two years (Notice of Intent to Decision) and that is less than 150 pages in length, excluding appendices. D. To formalize the commitment among the Parties regarding their respective responsibilities and expertise in the SEIS process. DocuSign Envelope ID: 200BE940-2EFD-417C-A3BB-9D8383962876 3 IV. Authority A. The authorities of the BLM to enter into and engage in the activities described within this MOU include, but are not limited to: 1. National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.). 2. Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701 et seq.). B. Regulations implementing the above authorities: 1. Council on Environmental Quality regulations (40 CFR §1501.7 and 1501.8.) 2. U.S. Department of the Interior’s NEPA regulations, 43 CFR parts 46, et seq., and its regulation regarding Cooperating Agencies, 43 CFR § 46.225(d) 3. Bureau of Land Management planning regulations (43 CFR 1601 et seq). This MOU does not grant the signatories any additional rights or powers, nor does it excuse the signatories from fulfilling any other statutory obligation they might have. Each Party is responsible for its own actions/omissions. This MOU does not incur upon the signatories a shared statutory responsibility to fulfill the obligations of the other signatories. V. Roles and Responsibilities A. Responsibilities of all Parties: 1. The Parties agree to participate in this planning process in good faith and make all reasonable efforts to resolve disagreements. 2. Each party agrees the SEIS will be prepared in 150 pages or fewer (excluding appendices) and will be completed within two years of Notice of Intent publication. 3. The Parties agree to comply with the planning schedule, which BLM will provide once the Notice of Intent date is known. The BLM anticipates providing Cooperating Agencies three weeks to review the internal draft SEIS, and two weeks to review the internal final SEIS. 4. Each Party agrees to fund its own expenses associated with the project. 5. The Parties agree to carefully consider whether proposed meetings or other activities would waive the Unfunded Mandates Reform Act exception to the Federal Advisory Committee Act (2 U.S.C. 1534(b) and 5 U.S.C App.). B. Lead Agency (BLM) Responsibilities: 1. As lead agency, the BLM retains final responsibility for the content of all planning and NEPA documents, which include the draft SEIS, final SEIS, and the Record of Decision. The BLM’s responsibilities include determining the purpose of and need for the SEIS, selecting alternatives for analysis, identifying effects of the proposed alternatives, and selecting the preferred alternative. In DocuSign Envelope ID: 200BE940-2EFD-417C-A3BB-9D8383962876 4 meeting these responsibilities, the BLM will follow all applicable statutory and regulatory requirements. 2. To the fullest extent consistent with its responsibilities as lead agency, the BLM will consider the comments, recommendations, data, and/or analyses provided by the Cooperators in the SEIS process, giving particular consideration to those topics on which the Cooperators are acknowledged to possess jurisdiction by law or special expertise. 3. To the fullest extent practicable, after consideration of the effect such releases may have on the BLM’s ability to withhold this information from other parties, the BLM will provide the Cooperators with copies of documents underlying the SEIS relevant to the Cooperators’ responsibilities, including technical reports, data, analyses, comments received, and working drafts related to environmental reviews. 4. Ensure that Parties receive the internal draft SEIS and internal final SEIS and have an opportunity to review and comment on the documents. 5. Provide the schedule to Cooperating Agencies as soon as it is available. The schedule may or may not be modified if a party cannot meet a milestone. 6. Maintain records management and the decision file to provide for the official Project Record, protecting all proprietary information and data collected to the extent allowed by the Freedom of Information Act, the Privacy Act, and/or other Federal law. 7. BLM shall have the lead role for National Historic Preservation Act (NHPA) and Section 106 compliance as well as NEPA compliance. This lead agency designation includes fulfilling the collective responsibilities of the Cooperating Federal Agencies under Section 106 of the NHPA for this undertaking on federally owned or managed lands, including tribal consultation per 36 CFR 800.2(a)(2). 8. BLM shall assume the lead role for special status species Section 7 consultation, if needed. C. Cooperating Agency Responsibilities: 1. Counties participating as Cooperating Agencies in this SEIS process are recognized to have special expertise in the following areas within the County: local land use information; resource management; recreation; socio-economics; and engaging in matters relating to public land use and other county matters. 2. The Cooperators will provide information, comments, and technical expertise to the BLM regarding those elements of the SEIS, and the data and analyses supporting them, in which it has special expertise or for which the BLM requests their assistance. 3. Within the areas of their special expertise, the Cooperator may participate in activities that include, but are not limited to, providing guidance on public DocuSign Envelope ID: 200BE940-2EFD-417C-A3BB-9D8383962876 5 involvement strategies; identifying data needs; assisting with alternative development to resolve issues; identifying effects of alternatives; and providing written comments on administrative drafts of the SEIS and supporting documents. 4. Provide comments within the timeframe identified in the schedule. Limit comments to those matters for which the Cooperating Agency has special expertise with respect to any environmental issue (40 CFR § 1501.8(7)). 5. If a milestone is anticipated to be missed, elevate any issue that may affect the ability to meet the schedule to BLM for timely resolution. Additional time may not be granted. VI. Other Provisions A. Authorities not altered. Nothing in this MOU alters, limits, or supersedes the authorities and responsibilities of any Party on any matter within their respective jurisdictions. Nothing in this MOU shall require any of the Parties to perform beyond its respective authority. B. Immunity and Defenses Retained. Each Party retains all immunities and defenses provided by law with respect to any action based on or occurring as a result of this MOU. C. Conflict of interest. The Parties agree not to utilize any individual or organization for purposes of plan development, environmental analysis, or Cooperator representation, including officials, employees, or third-party contractors, having a financial interest in the outcome of the SEIS. Questions regarding potential conflicts of interest should be referred to BLM HQ or Field Ethics Counselors for resolution. D. Documenting disagreement or inconsistency. Where the BLM and one or more Cooperators disagree on substantive elements of the SEIS (such as designation of the alternatives to be analyzed or analysis of effects), and these disagreements cannot be resolved, the BLM will include a summary of the Cooperators’ views in the Draft SEIS and the Final SEIS. The BLM will also describe substantial inconsistencies between its preferred alternative and the objectives of state, local, or tribal land use plans and policies. E. Management of information. Any records or documents generated because of the project become part of the official BLM record maintained in accordance with BLM record management policies. The Cooperator acknowledges that all supporting materials and draft documents may become part of the project record and may be subject to the requirements of the Freedom of Information Act (FOIA) and other federal or state statutes. The BLM acknowledges that the Cooperator’s handling of these materials may be impacted by §24-72-201 to 24-72-206, C.R.S. The Parties agree that the BLM at its discretion may withhold from the cooperators those documents that would otherwise be available for public release under 24-72-201 to DocuSign Envelope ID: 200BE940-2EFD-417C-A3BB-9D8383962876 6 24-72-206, C.R.S. F. Conflict Resolution. The Parties agree to make reasonable efforts to resolve procedural or substantive conflicts. In the event any disagreement between the parties cannot be resolved between the parties in a reasonable time, either party may refer the disagreement to the Colorado BLM State Director to timely resolve the issue. The decision of the Colorado BLM State Director will be the final decision for purposes of resolving the issue. The Parties acknowledge that BLM retains final responsibility for the analysis and decisions identified in the SEIS and ROD. G. The BLM will retain a contractor to assist with portions of the SEIS preparation. Cooperators may communicate with the contractor only through BLM’s representative. The Cooperator acknowledges that the BLM retains the exclusive responsibility to authorize modifications to the contract, and that the Cooperator is not authorized to provide technical or policy direction regarding the performance of the contract. H. Contingent Upon Appropriations and Authorization. Where activities provided for in the agreement extend beyond the current fiscal year, continued expenditures by the United States are contingent upon Congress making the necessary appropriations required for the continued performance of the United States’ obligations under the agreement. I. Contingent on Apportionment or Allotment of Funds. The expenditure or advance of any money or the performance of any obligation of the United States or Eagle County under this MOU shall be contingent upon appropriation or allotment of funds. No liability shall accrue to the United States or Eagle County for failure to perform any obligation under this MOU in the event that funds are not appropriated or allotted. VII. Agency Representatives Each Party will designate a representative as described in Attachment 1 to ensure coordination between the Cooperator and the BLM during the planning process. Each Party may change its representative by providing written notice to the other Parties. VIII. Administration of the MOU A. Approval: This MOU becomes effective upon signature by the authorized officials of the BLM and the Cooperator. B. Amendment: This MOU may be amended through written agreement of all signatories. C. Termination: If not terminated earlier, this MOU will end when the Final SEIS is accepted by the BLM State Director. Any Party may end its participation in this DocuSign Envelope ID: 200BE940-2EFD-417C-A3BB-9D8383962876 7 MOU by providing written notice to the other Party. D. Withdrawal: Any party may withdraw from the MOU with 30 days written notice. IX. Signatures The Parties hereto have executed this MOU on the dates shown below. BUREAU OF LAND MANAGEMENT (LEAD AGENCY) By: ____________________________________________ Date: _______________ Greg Larson, District Manager, Upper Colorado District, BLM EAGLE COUNTY, COLORADO (COOPERATING AGENCY) By: ____________________________________________ Date: _______________ Jeanne McQueeney, Chair, Board of County Commissioners DocuSign Envelope ID: 200BE940-2EFD-417C-A3BB-9D8383962876 5/16/2022 5/24/2022 Attachment 1 Agency Representatives Bureau of Land Management Representative: Bruce Krickbaum Project Manager ucrd-seis@blm.gov 970-240-5399 Eagle County Representative: Tori Franks Resiliency Director tori.franks@eaglecounty.us 970-328-8775 DocuSign Envelope ID: 200BE940-2EFD-417C-A3BB-9D8383962876