§ 6102.4 - Restoration and Mitigation Leasing.

§ 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.