APPENDIX II Additional Material Submitted for the Record ARIZONA STATE UNIVERSITY, Hon. LARRY E. CRAIG, Tempe, AZ, June 27, 1995. Chairman, Subcommittee on Forests and Public Land Management, Committee on Energy and Natural Resources, U.S. Senate, Washington, DC. Re: Materials for the Hearing Record on the Livestock Grazing Act, Senate Bill 852 DEAR CHAIRMAN CRAIG: At the close of the hearing on the Livestock Grazing Act, Senate Bill 852, on June 22, you announced that the record would remain open until the close of the day on June 28. Enclosed are three documents that, in addition to my testimony previously submitted, I would like to have included in the record: 1. Letter from Joseph M. Feller to Senator Craig Thomas, dated June 25, 1995. 2. "The Livestock Grazing Act (Senate Bill 852) and Environmental Laws," by Joseph M. Feller, dated June 26, 1995. 3. "The Livestock Grazing Act (Senate Bill 852) and Grazing Management," by Joseph M. Feller, dated June 27, 1995. I have enclosed twenty-five copies of each document. I would be very grateful if you would make these copies available to the members of the committee as well as including them in the record. Sincerely yours, [Enclosures.] Hon. CRAIG THOMAS, Senate Office Building, Washington, DC. Re: Senate Bill 852, Livestock Grazing Act JOSEPH M. FELLER, ARIZONA STATE UNIVERSITY, DEAR SENATOR THOMAS: The purpose of this letter is to answer a question that you asked at the hearing on Senate Bill 852, the Livestock Grazing Act, on June 22, 1995. At that hearing, Ms. Lynn Kincannon of the Idaho Conservation League showed photographs of riparian areas on BLM land in Idaho and Utah. The photographs contrasted the highly degraded condition of overgrazed riparian areas with the superior condition of riparian areas that had received extended rest from grazing. You asked Ms. Kincannon how Senate Bill 852, the Livestock Grazing Act, would adversely affect the condition of such riparian areas or prevent the BLM from protecting them. The following is the answer to your question: 1. Section 136(b) of the Livestock Grazing Act would prohibit the BLM from placing any special terms or conditions in grazing permits to protect or enhance riparian areas. 2. Section 114(b) of the Livestock Grazing Act would prevent the BLM from taking into account the need to protect riparian areas when it sets the stocking rate for a grazing allotment. Section 114(b) requires that any change in stocking rate must be supported by "rangeland studies." "Rangeland studies,' as defined in section 104(a)(26) of the Act, do not include measurements or evaluations of the condition of riparian areas. 3. Sections 106(d) and 121(e) of the Livestock Grazing Act would, in effect, relieve the BLM of the responsibility to evaluate and consider the effects of grazing on ri parian areas. These two sections would declare that the only required consideration of grazing impacts under the National Environmental Policy Act (NEPA) would be the "studies supporting the land use plan." The land use plan applicable to the riparian areas in Utah depicted in Ms. Kincannon's third and fourth photographs is the San Juan Resource Management Plan, which was completed in 1991 and is typical of current BLM land use plans. The environmental impact statement (EIS) supporting the San Juan Resource Management Plan contains no evaluation of the condition of the riparian areas depicted in the photographs or of the condition of any other riparian areas in the San Juan Resource Area. The EIS and the land use plan, like most such EISs and plans, were written under the assumption that such information would be developed in subsequent, more site-specific studies. However, since the Livestock Grazing Act would relieve the BLM of the responsibility to perform such additional studies, it is likely that the passage of the Act would ensure that the condition of most riparian areas will never be evaluated, considered, or addressed by the BLM. 4. Section 161(a)(1) of the Livestock Grazing Act would provide no notice of proposed grazing decisions to affected interests who are concerned about riparian areas. Thus, for example, if the BLM were to propose to run herds of cattle through the riparian areas in Ms. Kincannon's photographs that are currently being rested, affected interests would not be notified. Without notice, they would be unable to present any information or arguments that might cause the BLM to reconsider or modify its proposal. Senator Thomas, I know that you are sincerely concerned about the protection and enhancement of riparian areas and other environmental resources on our western public lands. However, if you believe that the effect of the Livestock Grazing Act on these resources will be benign, then you have been misled. I hope that this information is useful to you in your consideration of the Livestock Grazing Act. If you or your staff would like any additional information or have any questions, please call me at (602) 965–3964. Sincerely yours, JOSEPH M. FELLER, THE LIVESTOCK GRAZING ACT (S. 852) AND ENVIRONMENTAL LAWS Senate Bill 852, the Livestock Grazing Act, contains two provisions that would exempt livestock grazing on Bureau of Land Management (BLM) public lands from environmental laws. Section 106(d) states: Livestock grazing activities and management plans. . . shall not require any consideration under the National Environmental Policy Act of 1969 [NEPA] in addition to the studies supporting the land use plan. Section 121(e) states: The issuance of a grazing permit or grazing lease that is consistent with a land use plan shall not be considered to be a federal action requiring the conduct of any study or assessment under the National Environmental Policy Act [NEPA] or any other law. [Emphasis added.] The effect of these two provisions will be that, if the Livestock Grazing Act becomes law, the only environmental review of livestock grazing on BLM lands will be the environmental impact statements (EISS) accompanying BLM land use plans. However, the EISS accompanying most BLM land use plans do not contain, and do not purport to contain, the environmental information necessary to make reasoned, informed, and lawful decisions about livestock grazing in particular areas. These EISS do not disclose, for example, the condition of riparian areas, the levels of pollution in streams, or the condition of wildlife habitat on individual grazing allotments. Without this information, there is no way of determining whether the grazing is causing violations of substantive environmental laws such as the Clean Water Act and the Endangered Species Act. Since the Livestock Grazing Act would relieve the BLM of any responsibility to perform any additional studies or assessments, the likely result of the Act's passage would be that the impacts of grazing on riparian areas, water quality, wildlife habitat, and other environmental resources on BLM land will never be assessed or addressed by the BLM. HISTORICAL PERSPECTIVE The current status of BLM land use planning is a result of a decision made in the early 1980s by Secretary of the Interior James Watt. At the behest of the livestock industry and over the opposition of environmental groups, Secretary Watt de cided that the BLM would not use its land use planning process to assess the environmental impacts of grazing in particular areas or prescribe measures to alleviate those impacts. Instead, the land use plans, known as Resource Management Plans (RMPs), and their accompanying EISS would provide only a broad framework, with the details to be filled in later by subsequent, more site-specific NEPA documents and plans that would actually deal with grazing impacts and management. Most current BLM land use plans and their accompanying EISs are of this "framework" variety and therefore lack specific environmental information and management prescriptions. The relationship between these BLM land use plans, their accompanying EISS, and subsequent, more site-specific NEPA documentation was explained in a brief filed in 1993 by the American Farm Bureau Federation, a leading organization representing public lands ranchers. In defending the BLM's failure to include specific environmental information in a resource management plan (RMP) and its accompanying EIS, the Farm Bureau Federation explained: [T]he RMP/EIS is not the final step in the NEPA process. The tiering process of going from the general to the specific, requires the BLM to complete the sitespecific activity planning process which in this case will lead to the preparation of a new AMP [allotment management plan] with its own NEPA documentation. Post-Hearing Memorandum of Points and Authorities of American Farm Bureau Federation and the Utah Farm Bureau Federation 23, National Wildlife Federation v. BLM, No. UT-06-91-01 (U.S. Dept. of the Interior, Office of Hearings and Appeals, Hearings Division) (Dec. 20, 1993) (memorandum filed Sept. 10, 1993). The Farm Bureau Federation argued that any attempt to examine the adequacy of the RMP and the EIS would be "premature" until the subsequent, more site-specific NEPA documentation was completed. Now, however, at the behest of the same livestock interests that convinced Secretary Watt to omit specific environmental information and management prescriptions from BLM land use plans and their accompanying EISS, the Livestock Grazing Act would declare that those land use plans and EISS are sufficient to satisfy NEPA and all other environmental laws, and would relieve the BLM of the responsibility to conduct the subsequent, more site-specific assessments that have been promised. The result of Secretary Watt's policy in the 1980s combined with the Livestock Grazing Act in the 1990s will be a nearly complete circumvention of NEPA and other environmental laws on the public rangelands. AN EIS FOR EVERY PERMIT? Proponents of the Livestock Grazing Act have argued that the exemptions in sections 106(d) and 121(e) of the Act are necessary because, in the absence of such exemptions, environmental groups will argue for, and courts may order, an environmental impact statement (EIS) to be prepared for every grazing permit. However, no environmental group has ever argued, and no court has ever held, that NEPA requires an EIS for every grazing permit. Environmental groups have argued, and a judge has held, that the issuance or renewal of a BLM grazing permit is a “federal action” within the meaning of NEPA. This holding, however, does not imply that an EIS is required for every permit. Rather, it implies simply that the BLM must, in some form and at some step in its planning and management processes, assess and consider the actual, on-theground impacts of the grazing authorized by the permits that it issues. The BLM has great flexibility to choose the form in which it will comply with NEPA. As a federal judge wrote twenty years ago in Natural Resources Defense Council v. Morton, "questions of format are to be left to the BLM." For grazing allotments that do not contain important resources or where grazing does not have serious impacts, a simple environmental assessment-a document much shorter than an EIS that covers one or several allotments may suffice. In areas where impacts are more serious, an EIS may be prepared that covers a group of geographicallyrelated allotments, such as allotments in a common watershed. The BLM also could comply with NEPA by including more specific information in the EISS supporting its land use plans, although under Secretary Watt the BLM rejected this option. Finally, in the unusual circumstance where a single, large allotment contains many important resources and grazing is having very serious impacts on those resources, the BLM may choose to prepare a separate EIS for that allotment. The Livestock Grazing Act, however, would go beyond giving the BLM flexibility. The Livestock Grazing Act would relieve the BLM of the responsibility to conduct any environmental analysis beyond its land use plans, whether or not those land use plans contain any specific assessment of the impacts of grazing. Since most BLM land use plans and their accompanying EISS contain no such assessment, the "practical effect of the Livestock Grazing Act will be to ensure that the effects of livestock grazing on riparian areas, water quality, wildlife habitat, scenic and recreational areas, and other environmental resources will never be evaluated, considered, or addressed on most BLM land. THE LIVESTOCK GRAZING ACT (S. 852) AND GRAZING MANAGEMENT Senate Bill 852, the Livestock Grazing Act, contains several provisions that severely restrict the ability of the United States Bureau of Land Management (BLM) to manage livestock grazing on the public lands that the BLM administers. If the Livestock Grazing Act becomes law, the combined effect of these provisions will be to leave the BLM without the necessary authority to limit and control livestock grazing in order to protect riparian areas, water quality, wildlife habitat, archaeological sites, scenic and recreational areas, and other environmental resources on the public lands. The Livestock Grazing Act would tie the BLM's hands in two ways: (1) The Act would prevent the BLM from placing terms and conditions in grazing permits to require proper management of livestock. (2) The Act would make it virtually impossible for the BLM to reduce the number of livestock on overgrazed allotments and on allotments where reductions are needed in order to protect resources or to accommodate other land uses besides livestock grazing. TERMS AND CONDITIONS OF GRAZING PERMITS Section 136(b) Section 136(b) of the Livestock Grazing Act would eliminate the authority of the BLM to manage grazing through the terms and conditions of grazing permits. This section prohibits the BLM from putting any term or condition in a grazing permit except for the terms and conditions described in section 136(a). Section 136(a) says that the only permissible terms and conditions are the kind and number of livestock, the period of use, the allotment to be used, and the total amount of use. The impact of the prohibition in section 136(b) is sweeping. Terms and conditions of grazing permits are the fundamental mechanism by which the BLM manages grazing. Under section 136(b), the BLM would no longer be able to require rotation, movement, or distribution of cattle, would no longer be able to place limits on the level of forage utilization, would no longer be able to require maintenance of fences, water developments, or other range improvements, and would no longer be able to impose special conditions to protect riparian areas, water quality, wildlife habitat, archaeological sites, or recreational areas. Section 136(c) Section 136(c) of the Livestock Grazing Act would prevent the BLM from making any changes in the terms and conditions of grazing permits unless and until it has gathered extensive "monitoring data." For the most part, the BLM lacks the funding and the personnel to gather such data.1 Given the lack of available funds, personnel, and time to gather such data, this section would practically prohibit the BLM from making any changes in grazing permits. Furthermore, even when monitoring data do exist, these data generally do not reflect many of the most serious environmental impacts of grazing. Monitoring studies generally measure forage utilization, range condition, and trend. These indicators do not reflect, for example, water quality, rates of soil erosion, the condition of riparian areas or other wildlife habitat, or the impacts of grazing on archaeological, scenic, recreational, and other resources.2 Since these other factors are not reflected in monitoring data, the Livestock Grazing Act would prevent the BLM from making changes in permit terms and conditions to address these factors. LIVESTOCK NUMBERS Proper stocking rate is an essential component of prudent range management. As a Forest Service report has stated, [S]tocking rate is and always will be the major factor affecting the degradation of rangeland resources. No grazing system can counteract the negative impacts of overstocking on a long-term basis. Clary & Webster, Managing Grazing of Riparian Areas in the Intermountain Region 6 (Intermountain Research Station, U.S. Forest Service, May 1989). The Livestock 1U.S. General Accounting Office, Rangeland Management: Interior's Monitoring Has Fallen Short of Agency Requirements, No. GAO/RCED-92-51 (1992). 2Joseph M. Feller, What is Wrong With the BLM's Management of Livestock Grazing on the Public Lands, 30 Idaho L. Rev. 555, 561-63, 576–79 (1994). Grazing Act, however, would make it virtually impossible for the BLM to adjust stocking rates in order to prevent degradation of rangeland resources. This effective ban on stocking adjustments is the result of three provisions in the Act: Section 107-Section 107 of the Livestock Grazing Act provides: Nothing in this title shall be construed to reduce or otherwise limit the levels of livestock grazing that were authorized to be permitted as of August 1, 1993. This section could be interpreted as a complete, permanent freeze on any reductions in livestock numbers. Even if it is not so interpreted, the following two additional provisions will effectively block any needed reductions. Section 114(b) Section 114(b) of the Livestock Grazing Act would prevent the BLM from changing the stocking rate on an allotment in order to protect water quality, riparian areas, wildlife habitat, archaeological sites, recreational uses, or other resources besides livestock forage. It requires that changes in stocking rates be supported by "rangeland studies." "Rangeland study" is defined in section 104(a)(26). The definition is limited to measurements such as utilization, trend, and production, that indicate the condition of the livestock forage resource. The impacts of grazing on other resources and uses are not reflected in these measurements, and therefore, under section 114(b), such impacts could not be considered in the determination of stocking rates. Moreover, as noted above, the BLM generally lacks the funding and personnel to conduct the "rangeland studies" defined in section 104(a)(26) and required by section 114(b). Therefore, these sections will act, in effect, as a ban on reductions in livestock numbers. Section 114(d)(2)—-Section 114(d)(2) of the Livestock Grazing Act provides that, even when the BLM has data that prove an allotment is being overgrazed, the BLM may not reduce the number of livestock on that allotment unless and until it has first implemented all "reasonable and viable management alternatives." In other words, even on an overstocked allotment, this section mandates that a reduction in stocking rate to a reasonable level must be the very last resort. This section could result in millions of dollars of wasted expenditures on costly alternatives, years of lost time, and prolonged environmental damage in situations where a reduction in stocking rate may be the least costly and most effective alternative to solve environmental problems. Where the BLM lacks the funds to implement other alternatives, this section may completely block the BLM from implementing needed reductions. THE WILDLIFE SOCIETY, Bethesda, MD, June 27, 1995. Hon. LARRY E. CRAIG, Chairman, Subcommittee on Forests and Public Land Management, Senate Committee on Energy and Natural Resources, Washington, DC. DEAR CHAIRMAN CRAIG: The Wildlife Society appreciates the opportunity to submit the following testimony for the record for the 22 June hearing of the Senate Subcommittee on Forests and Public Land Management on the Livestock Grazing Act (S. 852). While TWS agrees that the public rangelands administered by the Bureau of Land Management and the U.S. Forest Service are in need of management reform, S. 852 is a radical step away from scientific stewardship of our public lands. The Wildlife Society (TWS) is the international association of professional wildlife biologists and managers. Rangelands with stable soils that supports a wide diversity of native plant species, are important to sustaining wildlife diversity and productivity in the American West. If carefully and properly managed, livestock grazing is not necessarily detrimental to wildlife habitat. However, if grazing becomes the dominant use, as suggested in S. 852, the nation's rangelands will incur severe damage. The Livestock Grazing Act would limit public involvement in rangeland planning and management. Under the current rule, "interested publics" are able to become involved in the planning process by attending Resource Advisory Council meetings. S. 852 would allow only affected interests" with "substantiated evidence that the management of the public lands will affect the individual or organization" to participate in Grazing Advisory Councils-the only advisory group with the authority to set range improvement objectives. This would discourage appointments of conservationists to the councils. Grazing permits would not be "considered to be a Federal action requiring the conduct of any study or assessment under the National Environmental Policy Act or any other law." The definition of carrying capacity in the bill would allow the maximum stocking rate possible "without inducing permanent damage to vegetation or related resources." This language would prevent the public lands managers |