HomeMy WebLinkAboutC22-328 MOU BLM_Big Game1
MEMORANDUM OF UNDERSTANDING
AMONG THE
U.S. DEPARTMENT OF INTERIOR, BUREAU OF LAND MANAGEMENT,
COLORADO STATE OFFICE
AND
EAGLE COUNTY, COLORADO
FOR
COOPERATIVE DEVELOPMENT OF THE
BIG GAME HABITAT, MOVEMENT ROUTE AND MIGRATION CORRIDOR
RESOURCE MANAGEMENT PLAN AMENDMENT
I. Introduction
The U.S. Department of the Interior (USDI), Bureau of Land Management, Colorado State
Office (herein referred to as “BLM”) and Eagle County (County/Cooperator) collectively
referred to herein as “the Parties,” enter this Memorandum of Understanding (MOU) outlining
cooperating agency relationship responsibilities during the National Environmental Policy Act
(NEPA) process for the proposed big game habitat, movement route and migration corridor
resource management plan amendment (RMPA) in Colorado, hereafter referred to as “the
Project.”This MOU establishes a cooperating agency relationship between the BLM and the
County, provides a framework for cooperation and coordination, and documents agreed upon
procedures, roles, and responsibilities associated with the preparation of the environmental
impact statement (EIS).
The BLM will consider and analyze an amendment to applicable BLM Colorado land use plans
to evaluate consistency with plans of other Federal and State agencies, Local governments, and
Tribes, to the extent possible with the BLM’s responsibility under the Federal Land Policy and
Management Act of 1976 (FLPMA), as amended, for the conservation of big game movement
routes, migration corridors and other important habitat areas. FLPMA mandates “land use plans
[of the Secretary] shall be consistent with State and local plans to the maximum extent [the
Secretary] finds consistent with Federal law and the purposes of this Act” (43 U.S.C. 1712).
The cooperating agency relationship established through this MOU shall be governed by all
applicable legal and regulatory mandates, including FLPMA, Council on Environmental
Quality’s (CEQ) NEPA regulations (40 CFR §1500; in particular, 40 CFR 1501.8), DOI
Implementing Regulations (43 CFR 46), and the BLM’s planning regulations (43 CFR §1600;
in particular, 43 CFR 1610.3.). The BLM recognizes a compelling need to ensure the interests
of the County are accounted for and the agencies are meaningfully engaged in the above stated
Project. As such, the BLM has invited Eagle County to be a cooperating agency pursuant to 40
CFR §1501.8.
The BLM acknowledges that the County has jurisdiction by law and/or special expertise
applicable to the project, as defined at 40 CFR §1508.1 The County is a cooperating agency due
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to expertise with County plans and resources within the County.
This MOU will facilitate a cooperative environmental review process ultimately aiding the goals
and missions of the Parties. The Parties agree to work cooperatively during the planning and
NEPA process. This MOU does not invalidate any existing agreements between the BLM and the
County.
II. Background
Policies exist at Federal and State levels for the conservation of movement routes, migration
corridors and important habitat for big game species. The “America the Beautiful” initiative
sets targets for conserving the nation’s lands and waters—expanding collaborative conservation
of wildlife habitats and corridors is one of the top priorities. The Department’s Secretarial
Order 3362 “Improving Habitat Quality in Western Big-Game Winter Range and Migration
Corridors” was signed in 2018. The Order is focused on conserving, enhancing, restoring, or
improving the condition of priority big game winter range and migration corridor habitat. The
Order directs BLM and appropriate Bureaus within DOI to work with states, including
Colorado, to enhance and improve big game winter range and migration corridors on federal
lands managed under the Department.
In 2019, the Governor of Colorado, Jared Polis, signed executive order D 2019 011,
Conserving Colorado’s Big Game Winter Range and Migration Corridors. In 2021, the
Colorado Parks and Wildlife updated their action plan for Implementation of Department of the
Interior Secretarial Order 3362: Improving Habitat Quality in Western Big-Game Winter
Range and Migration Corridors. In 2021, Colorado Department of Natural Resources released
a report titled Opportunities to Improve Sensitive Habitat and Movement Route Connectivity
for Colorado’s Big Game Species, encouraging the BLM to adopt recommendations for
managing land use development in big game seasonal migration corridors, movement routes,
priority winter ranges, and production, calving, fawning, and summer concentration areas.
Definitions
1. Lead Agency means the Federal agency having the primary responsibility for
preparing the NEPA document and for supervising compliance with the
requirements of NEPA (42 U.S.C. §§ 4321 et seq.), and the regulations established
by the Council on Environmental Quality (CEQ) (40 CFR 1501.7 Lead Agencies).
For purposes of this MOU, the BLM is the Lead Agency for the Project.
2. Cooperating Agency or Cooperator means any Federal, State, or local agency, or
tribal government which has jurisdiction by law or special expertise with respect to
any environmental impact involved in a proposed major Federal action significantly
affecting the quality of the human environment. The selection and responsibilities
of a cooperating agency are described in 40 CFR Part 1501.8. For purposes of this
MOU, the County is a cooperating agency for this Project. Additional State or local
agencies of similar qualifications or a Tribe may, by separate agreement, may
become a cooperating agency.
3. An EIS is a detailed written statement as required by Section 102(2)(c) of NEPA,
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and as defined by CEQ regulations at 40 CFR 1500-1508. NEPA regulations (40
CFR §1508.1).
4. A No Action Alternative for this proposed Project means the Proposed Actions
would not be implemented and there would be no change from the current planning
decisions.
III. Purpose
A. This MOU designates the BLM as Lead Agency, and the County as Cooperating Agency
in the proposed Project. The BLM determined an EIS should be prepared to analyze the
impacts of the proposed Project because the effects of the Proposed Action are likely to
significantly affect the quality of the human environment.
B. To provide a framework for cooperation and coordination between the BLM and the
County to ensure successful completion of the RMPA/EIS in a timely, efficient, and
thorough a manner that satisfies compliance requirements.
C. To recognize that the BLM is the Lead Agency with the responsibility for the completion
of the RMPA/EIS and the Record of Decision (ROD).
D. To formalize the commitment among the Parties regarding their
respective responsibilities, jurisdictional authority, and expertise of each
of the Parties in the planning and NEPA process.
IV. Authority
A. The BLM’s authorities 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 NEPA regulations (40 CFR §1501.7 et seq.).
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. BLM 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
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A. Responsibilities of all Parties:
1. The Parties agree to participate in this planning and NEPA process in good faith and
make all reasonable efforts to resolve disagreements. Where procedural or
substantive disagreement may impede effective and timely completion of the
RMPA/EIS, the Parties agree to utilize the facilitation and conciliation procedures
described below (see Sections VI.E and VI.H).
2. The Parties agree to comply with the planning schedule provided as Attachment
B, which includes dates for RMPA/EIS milestones and timeframes for Cooperating
Agency reviews and submissions.
3. Each Party agrees to fund its own expenses associated with the RMPA/EIS process.
This MOU does not authorize funding from or to either party.
4. Each party will assist other agencies to the best extent possible and coordinate the
exchange of information among the Parties for use of the best available science.
5. The EIS shall be completed in two years from the date of the issuance of the
notice of intent and prepared in 300 pages or fewer (excluding appendices) unless
a senior agency official of the Department approves in writing a new time or page
limit (40 CFR §1501.10).
6. Each Party will meet upon request and make available staff support to enhance
interdisciplinary capability.
B. Lead Agency (BLM) Responsibilities:
1. The BLM is the Lead Agency with responsibility for preparation of the RMPA/EIS.
It will ultimately be the responsibility of the BLM to comply with NEPA.
2. The BLM will collaborate, to the fullest extent possible, with the County concerning
those issues relating to their special expertise.
3. Coordinate to develop the purpose and need and alternatives in consultation with
cooperating agencies (§1501.7). Additionally, responsibilities include coordinating
with cooperating agencies during opportunities outlined in Attachment A,
including analyzing data, developing alternatives, evaluating alternatives and
estimating the effects, and/or carrying out any other tasks necessary for the
development of the RMPA/EIS.
4. As the Lead Agency, the BLM retains final responsibility for the content of all
planning and NEPA documents, which include the Draft RMPA/EIS, the Proposed
RMPA/Final EIS, and the ROD. The BLM’s responsibilities include final
determination of the purpose and need, selecting alternatives for analysis,
identifying effects of the proposed alternatives, selecting the preferred alternative,
and determining appropriate mitigation measures. In meeting these responsibilities,
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the BLM will follow all applicable statutory and regulatory requirements. Where
the County may provide information, review, or contribute to analysis, the BLM is
still responsible for all content within the RMPA/EIS.
5. To the fullest extent consistent with its responsibilities as the Lead Agency, the
BLM will consider the comments provided by the County in the RMPA/EIS
process, giving particular consideration to those topics on which the agency are
acknowledged to possess jurisdiction by law or special expertise. The BLM will use
information from the County to the maximum extent possible consistent with its
responsibility as the Lead Agency.
6. 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 County copies of the documents underlying the RMPA/EIS
relevant to the agency responsibilities, including biological assessments, technical
reports, data, comments received, and working drafts related to the Draft and Final
RMPA/EIS.
7. Develop the schedule (Attachment B) in consultation with cooperating agencies,
setting milestones for all environmental reviews and authorizations required for
implementation of the action. Appropriate timelines should be adhered to
throughout the process to the extent practicable by all parties. If a milestone is
anticipated to be missed, agency representatives will be notified as soon as
practicable (40 CFR §1501.7). Parties acknowledge the schedule may or may not be
modified if a party cannot meet a milestone.
8. Maintain records management and decision file to provide for the official
administrative record for the Project, protecting all proprietary information and data
collected to the extent allowed by the Freedom of Information Act (FOIA), the
Privacy Act, and/or other Federal law.
9. The BLM is responsible for developing the cost estimate for preparation of the
RMPA/EIS (40 CFR §1502.11).
10. The BLM is responsible for obtaining contractor support for the RMPA/EIS. To
facilitate timely and efficient completion of required environmental documents, the
BLM intends to contract the EIS preparation with a consulting firm approved by the
BLM. The contractor will conduct the environmental analysis process and to prepare a
Draft and Final EIS for BLM review at the BLM’s expense. The BLM and the
contractor will work together in a professional and productive manner under NEPA,
and all other applicable Federal and State laws, including if a biological assessment
will be prepared. The County’s relationship with the contractor shall be governed by
Section VI.I.
11. The BLM will maintain the integrity of the NEPA process for the EIS consistent with
Sec. 5 of Secretarial Order 3399 (April 16, 2021) to “utilize the NEPA process to
restore transparency and integrity to the decision-making process.”
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C. Cooperating Agency Responsibilities:
1. The County is a cooperating agency in this RMPA/EIS process and is recognized to
have jurisdiction over and special expertise in the planning area. Counties
participating as cooperating agencies in this effort are recognized to have special
expertise in the following areas within the County: local land use information;
resource management; oil and gas; socio-economics; soliciting public opinion; and
engaging in matters relating to public land use and other county matters.
2. The County may provide information, comments, and technical expertise to the
BLM regarding those elements of the RMPA/EIS in which the agency has
jurisdiction or special expertise or for which the BLM requests assistance. In
particular, the County may provide information on relevant issues, data needs, and
analysis.
3. Within the areas of their jurisdiction or special expertise, the County may
participate in activities identified in Attachment A. These activities include, but are
not limited to: providing guidance on public involvement strategies, identifying
data needs, suggesting management actions to resolve issues, identifying effects of
alternatives, suggesting mitigation measures, and providing written comments on
administrative drafts of the RMPA/EIS and supporting documents.
4. The County will meet the BLM’s schedule, including providing comments in a
timely manner and limit comments to those matters for which the Cooperating
Agencies have jurisdiction by law or special expertise with respect to any
environmental issue (40 CFR §1501.8(b)(7)). If a milestone is anticipated to be
missed, any issues relating to purpose and need, alternatives, or other issues that
may affect ability to meet the schedule, should be elevated to the BLM for timely
resolution (40 CFR § 1501.7). Additional time may not be granted.
5. On request of the BLM, the County will make available staff support review of the
NEPA documents. In response to the BLM’s request for assistance, if program
commitments preclude any involvement or the degree of involvement requested in
the action that is the subject of the environmental document, the County will notify
the BLM as soon as practicable (40 CFR §1501.7).
6. The County may contribute to the project Decision File, protecting all proprietary
information and data collected to the extent allowed by Freedom of Information Act
(FOIA), the Privacy Act, Colorado Privacy Act, and/or other state or Federal law.
The County agrees not to release these materials to individuals or entities other than
the Parties to this MOU (and their contractors), except as provided in Section VI.K
or required by law
VI. Other Provisions
A. Authorities not altered. Nothing in this MOU alters, limits, or supersedes the
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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. Financial obligations. Nothing in this MOU shall require any of the Parties to assume
any obligation or expend any sum in excess of authorization and appropriations
available. The Anti-Deficiency Act, 31 U.S.C. §1341, prohibits Federal agencies from
incurring an obligation of funds in advance of or in excess of available appropriations.
Accordingly, nothing in this MOU shall require any of the Parties to assume any
obligation or expend any sum in excess of authorization and appropriations available.
This MOU is neither a fiscal nor a funds obligation document.
C. 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.
D. Conflict of interest. The Parties agree not to utilize any individual or organization for
purposes of plan development, environmental analysis, or Cooperator, including
officials, employees, or contractors, having a financial interest in the outcome of the
RMPA/EIS. Questions regarding potential conflicts of interest should be referred to
BLM headquarters or ethics counselors for resolution.
E. Documenting disagreement or inconsistency. Where the BLM and one or more
Cooperators disagree on substantive elements of the RMPA/EIS (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 Cooperator’s views in the Draft
RMPA/EIS and the Proposed RMPA/Final EIS. The BLM will also describe substantial
inconsistencies between its proposed action(s) and the objectives of state, local, or tribal
land use plans and policies.
F. Nothing in this MOU precludes the County from participating in all phases of the
planning process generally available to the public.
G. 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 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 24-72-206,
C.R.S., but agrees to make withheld documents available for in person review by the
Cooperator when appropriate to do so in the judgement of the BLM.
H. Conflict Resolution. The Parties agree to make reasonable efforts to resolve procedural
or substantive conflicts and may agree to initiate a dispute resolution process. The
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Parties acknowledge that the BLM retains final responsibility for the decisions
identified in the RMPA/EIS and ROD.
I. The BLM, at its discretion, may select a contractor, or contractors, to assist in
preparation of the RMPA/EIS. The contractor would support the BLM with public
involvement, data collection, environmental analysis, and RMPA/EIS preparation. The
Cooperators may only communicate with the BLM contractor through or with the
approval of the BLM’s representative. Specific opportunities may be provided for the
Cooperators to provide information and comments directly to the contractor. In
addition, sub-groups can be established as needed to collaborate with the BLM and the
contractor’s technical staff on matters within County jurisdiction or areas of special
expertise. Parties acknowledge that the BLM retains the exclusive responsibility to
authorize modifications to any BLM contracts and the County is not authorized to
provide technical or policy direction regarding the performance of the contract.
J. Contingent Upon Appropriations and Authorization: Where activities provided for in
the MOU 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 MOU. The
expenditure or advance of any money or the performance of any obligation of the
United States under this MOU shall be contingent upon appropriation or allotment of
funds. No liability shall accrue to the United States for failure to perform any
obligation under this MOU in the event that funds are not appropriated or allotted.
K. Confidentiality: All Parties agree to keep all documents, including drafts, provided
during the NEPA process and pursuant to this MOU confidential to the extent
allowable by law. All Parties agree to keep all deliberations concerning the process,
prior to the release of a public Draft RMPA/EIS confidential to the extent allowable by
law.
L. Media Inquiries: All Parties agree that all media inquiries regarding the RMPA/EIS
will be coordinated such that any response is a single joint response agreed to by all
Parties.
VII. Agency Representatives
Each Party will designate a representative and alternate representative, as described in
Attachment C, to ensure coordination between the County and the BLM during the planning
and NEPA process. Each Party may change its representative at will 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 County.
B. Amendment: Amendment or modification of this MOU, within the scope of the MOU,
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shall be made by mutual consent of the parties, by the issuance of a written
modification, signed and dated by the Parties, prior to any changes being performed.
C. Termination: If not terminated earlier, this MOU will end when the ROD for the
RMPA/EIS is approved by the BLM State Director. Either of the Parties, in writing,
may terminate the MOU, in whole or in part, at any time before the date of expiration.
IX. Signatures
BUREAU OF LAND MANAGEMENT (LEAD AGENCY)
By: ____________________________________________ Date: _______________
Alan Bittner, Deputy State Director—Resources
BLM Colorado
COUNTY OF EAGLE, STATE OF COLORADO, By and Through Its COUNTY MANAGER
By: _________________________________________ Date: _______________
Jeff Shroll, County Manager
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Attachment A
Cooperating Agency Participation in the Big Game Corridor
RMPA/EIS
RMPA/EIS Stage Potential Activities of Cooperating Agencies within
acknowledged areas of expertise
Data Share; Conduct
scoping and identify
issues
Identify data needs; provide data and technical analyses within the
cooperator’s expertise. Identify coordination or consultation
requirements; identify significant issues; identify relevant local and
regional organizations and interest groups; provide non-financial
sponsorship of public forums with the BLM; collaborate in
assessing scoping comments following the NOI.
Develop planning criteria Provide any advice on proposed planning criteria. Identify pertinent
elements of relevant plans and legal requirements that shape other
policies and responsibilities.
Baseline Assessment Provide input on the Affected Environment, such as information
on local monitoring and baseline data related to expertise
Formulate alternatives May cooperate with the BLM Colorado State Office in developing
alternatives. Suggest goals and objectives for potential alternatives.
Suggest land allocations or management actions to resolve issues.
Suggest management actions to resolve issues. Decision to select
alternatives reserved to the BLM.
Estimate effects of
alternatives
Review, and where appropriate, may develop effects analysis
within area of expertise; suggest models and methods of impact
analysis; suggest mitigation measures for adverse effects.
Select the preferred
alternative; issue Draft
RMP/EIS
Cooperate with the BLM Colorado State Office in evaluating
alternatives and in developing criteria for selecting the preferred
alternative; provide input on Draft RMPA/EIS. Cooperating
agencies may provide written, public comments on Draft if
desired. Decision to select a preferred alternative and to issue a
Draft is reserved to the BLM.
Respond to comments As appropriate, review comments within expertise and provide
assistance in preparing the BLM’s responses.
Issue Proposed RMP/FEIS Action reserved to the BLM.
Initiate Governor’s
Consistency Review
Once initiated by the BLM, State Cooperating Agencies may
contribute to the Governor’s Consistency Review.
Sign ROD Action reserved to the BLM.
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Resolve protests; modify
Proposed RMP/FEIS if
needed; sign ROD
Action reserved to the BLM. A cooperator that has provided
information relevant to a protest may be asked for clarification.
Cooperating relationship does not negate an agency’s or
government’s rights to comment or protest the decision.
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Attachment B:
Schedule Overview
Target Timeline Key Milestones
Spring 2022 Invite cooperating agencies; begin data sharing for the
RMPA/EIS and continuous cooperating agency meetings
Summer 2022 Preliminary alternative, identify issues
June 2022 Notice of Intent and 45-day scoping period
December 2022 4-week review of draft RMPA/EIS
April 2023 Notice of Availability for the RMPA/DEIS and 90-day public
comment period
September 2023 4-week review of proposed RMPA/EIS
January 2024 Notice of Availability for the proposed RMPA/FEIS
January 2024
Public Protest Period (30 days) and Governor’s Consistency
Review (60 days). If protests, BLM’s protest resolution is an
internal review process
June 2024 Record of Decision/Approved Plan
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Attachment C
Agency Representatives
Bureau of Land Management Colorado
Primary Representative:
Ashley Phillips
State Office Planning and Environmental Coordinator
amphillips@blm.gov
303-239-3948
Backup Representative:
Alan Bittner
Deputy State Director – Resources
abittner@blm.gov
303-239-3768
Eagle County
Primary Representative:
Marcia Gilles
Director Open Space and Natural Resources
Marcia.gilles@eaglecounty.us
970-244-1762
