ECOSYSTEM RESILIENCE

• Citation: 43 CFR Part 6100
• Sections: 18

§ 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.

§ 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 § 6101.2.

§ 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:

(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.

§ 6103.1.1 Management for Land Health.

(a) To facilitate ecosystem resilience, authorized officers should use watershed condition assessments ( see § 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 § 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.

§ 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 (§ 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 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 § 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 § 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.

§ 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.

§ 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 § 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 § 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 the principles enumerated in § 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 § 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 § 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.

§ 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 (§ 6102.2), manage for ecosystem resilience (§ 6102.5), inform restoration actions (§ 6102.3), and inform land health evaluations and determinations (§ 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;

(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.

§ 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.

§ 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 § 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 § 6102.5(b)(4) through (6)).

§ 6102.3.1 Restoration Prioritization and Planning.

(a) Authorized officers must identify measurable and quantifiable restoration outcomes consistent with the restoration principles enumerated in § 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 § 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 § 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 § 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.

§ 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.

(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.

(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.

§ 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 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 § 6102.3 and mitigation lease development plans must be consistent with § 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 § 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 § 6103.2(d)).

(2) Additional requirements for development plans and monitoring plans for mitigation leases are provided in § 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.

(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.

§ 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.

§ 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.

(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.

§ 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.

§ 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 §§ 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 §§ 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 § 6103.2);

(4) Report annually on the results of land health evaluations, and determinations ( see § 6103.1.2);

(5) Ensure that watershed condition assessments incorporate consistent analytical approaches ( see § 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 § 6103.2(c)), specifically by:

(1) Identifying clear goals or desired outcomes relevant to the management decision;

(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.

§ 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 (§ 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 (§ 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.