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S. 1214: State Grazing Management Authority Act


The text of the bill below is as of Apr 19, 2021 (Introduced).


II

117th CONGRESS

1st Session

S. 1214

IN THE SENATE OF THE UNITED STATES

April 19, 2021

introduced the following bill; which was read twice and referred to the Committee on Energy and Natural Resources

A BILL

To amend the Federal Land Policy and Management Act of 1976 to authorize the Secretary of the Interior and the Secretary of Agriculture to enter into cooperative agreements with States to provide for State administration of allotment management plans.

1.

Short title

This Act may be cited as the State Grazing Management Authority Act.

2.

Authorization of cooperative agreements between the Secretary of the Interior, the Secretary of Agriculture, and States

Section 402 of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1752) is amended by adding at the end the following:

(k)

Cooperative agreements with States

(1)

Definitions

In this subsection:

(A)

Allotment management plan

The term allotment management plan has the meaning given the term in subsection (k) of section 103, except that—

(i)

any reference to the lessees or permittees involved in that subsection shall be considered to be a reference to the Secretary concerned; and

(ii)

any reference to the Secretary concerned in that subsection shall be considered to be a reference to the Governor of the applicable State.

(B)

Cooperating agency

The term cooperating agency means, as applicable—

(i)

a State agricultural agency that is involved in a proposed action under an allotment management plan authorized under paragraph (2); or

(ii)

a Federal agency that—

(I)

is involved in a proposed action under an allotment management plan authorized under paragraph (2);

(II)

is not the lead agency; and

(III)

has the jurisdiction or special expertise such that the Federal agency needs to be consulted—

(aa)

to use a categorical exclusion; or

(bb)

to prepare an environmental assessment or environmental impact statement, as applicable.

(C)

Cooperative agreement

The term cooperative agreement means a cooperative agreement entered into under paragraph (2).

(D)

Domestic livestock

The term domestic livestock means an animal raised in an agricultural setting to produce labor or commodities.

(E)

Eligible Federal land

The term eligible Federal land means—

(i)

public lands that—

(I)

are subject to a grazing permit or lease issued by the Bureau under section 3 or 15 of the Act of June 28, 1934 (commonly known as the Taylor Grazing Act) (43 U.S.C. 315b, 315m); and

(II)

have periodically or historically been used or offered for public domestic livestock grazing, as determined by the Secretary concerned; and

(ii)

National Forest System land that—

(I)

is subject to a grazing permit or lease issued by the Secretary of Agriculture; and

(II)

has periodically or historically been used or offered for public domestic livestock grazing, as determined by the Secretary concerned.

(F)

Environmental assessment

The term environmental assessment has the meaning given the term in section 1508.9 of title 40, Code of Federal Regulations (or a successor regulation).

(G)

Environmental impact statement

The term environmental impact statement means a detailed statement required under section 102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(C)).

(H)

Lead agency

The term lead agency means the Federal agency headed by the Secretary concerned that, at the request of the Governor of the applicable State under paragraph (3)(A)(ii), carries out the NEPA process for a proposed action under an allotment management plan authorized under paragraph (2).

(I)

NEPA process

(i)

In general

The term NEPA process means any portion of the process, analysis, and other measure, including the preparation of an environmental impact statement, if necessary, that is required to be carried out by the Secretary concerned under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) before the Secretary concerned undertakes a proposed action.

(ii)

Period

For purposes of clause (i), the NEPA process—

(I)

begins on the date on which the Secretary concerned receives an application for a proposed action from a project sponsor; and

(II)

ends on the date on which the Secretary concerned issues, with respect to the proposed action—

(aa)

a record of decision, including, if necessary, a revised record of decision;

(bb)

a finding of no significant impact; or

(cc)

a categorical exclusion under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).

(J)

Project sponsor

The term project sponsor means a Federal agency or applicable State agency that seeks approval of a proposed action.

(K)

Secretary concerned

The term Secretary concerned means—

(i)

the Secretary, acting through the Director of the Bureau, with respect to public lands; and

(ii)

the Secretary of Agriculture, acting through the Chief of the Forest Service, with respect to National Forest System land.

(L)

State commission

The term State commission means an advisory commission for a State established under paragraph (8)(A).

(2)

Pilot project authorization

(A)

In general

At the request of the Governor of a State, the Secretary concerned shall enter into a cooperative agreement with the State to authorize the State to administer 1 or more allotment management plans on eligible Federal land in the State, including the commencement of a lease or the issuance of a permit for domestic livestock grazing on the applicable allotment, subject to valid existing rights and this subsection.

(B)

Requirement

The Secretary concerned may enter into a cooperative agreement under subparagraph (A) and a State may commence a lease and issue a permit under an allotment management plan authorized under that subparagraph only after the Governor of the State has submitted to the Secretary concerned—

(i)

if the applicable allotment is occupied, a notice from each holder of a grazing permit or lease occupying the applicable allotment that provides that—

(I)

the holder consents to management by the State of the applicable permit or lease, which may include a maximum fee that the State may charge the holder of the grazing permit or lease under paragraph (6)(C); and

(II)

if the grazing permit or lease is subsequently transferred, the transfer shall be subject to the requirement that the transferee consents to the management by the State of the applicable permit or lease, in accordance with subclause (I); and

(ii)

a proposed allotment management plan for the applicable allotment.

(3)

NEPA authority

(A)

In general

At the request of the Governor of a State—

(i)

a cooperative agreement shall include an assignment of the responsibilities of the Secretary concerned under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) to the State with respect to the allotment management plans authorized under paragraph (2); or

(ii)
(I)

the Federal agency headed by the Secretary concerned shall carry out the NEPA process for each proposed action under an allotment management plan authorized under paragraph (2);

(II)

the applicable agricultural agency of the State shall participate in the NEPA process as a cooperating agency; and

(III)

any other Federal or State agency may participate in the NEPA process as a cooperating agency, as the applicable State commission determines to be appropriate.

(B)

Multi-agency projects

(i)

Responsibilities of lead agency

The lead agency for a proposed action shall—

(I)

as soon as practicable and in consultation with the cooperating agencies, determine whether a proposed action requires the preparation of an environmental assessment or an environmental impact statement; and

(II)

if the lead agency determines under subclause (I) that an environmental impact statement is necessary—

(aa)

be responsible for coordinating the preparation of the environmental impact statement;

(bb)

incorporate, to the maximum extent practicable, any applicable State or local resource management plans into the environmental impact statement and environmental assessment, as applicable;

(cc)

provide each cooperating agency with an opportunity to review and contribute to the preparation of the environmental impact statement and environmental assessment, as applicable, for the proposed action, except that a cooperating agency shall limit comments to issues within the special expertise or jurisdiction of the cooperating agency; and

(dd)

as soon as practicable and in consultation with the cooperating agencies, determine the range of alternatives to be considered for the proposed action.

(ii)

Environmental documents

(I)

In general

In carrying out the NEPA process for a proposed action under an allotment management plan authorized under paragraph (2), the lead agency, in consultation with the cooperating agencies, shall prepare not more than 1 of each type of document described in subclause (II), as applicable.

(II)

Documents described

The documents referred to in subclause (I) are—

(aa)

an environmental assessment;

(bb)

a finding of no significant impact;

(cc)

an environmental impact statement; and

(dd)

a record of decision.

(iii)

Prohibition

A cooperating agency may not evaluate an alternative to the proposed action that the lead agency has not determined to be within the range of alternatives to be considered under clause (i)(II)(dd).

(C)

Categorical exclusions

With respect to the allotment management plans authorized under paragraph (2), the following actions shall qualify for a categorical exclusion under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.):

(i)

The conduct of vegetation restoration projects using a method such as—

(I)

aerial, drill, or broadcast seeding;

(II)

disking;

(III)

mowing;

(IV)

chaining;

(V)

the use of a forestry mulcher;

(VI)

prescribed fire;

(VII)

invasive species management; or

(VIII)

any other method of vegetation restoration that the applicable State commission considers to be appropriate.

(ii)

The conduct of pinyon or juniper treatments using a method such as—

(I)

prescribed fire;

(II)

hand removal;

(III)

chaining;

(IV)

dozing;

(V)

the use of a forestry mulcher; or

(VI)

any other method that a State commission considers to be appropriate.

(iii)

Any change to—

(I)

the type of domestic livestock grazing on the applicable allotment; or

(II)

the number of, or season of use for, permitted animal unit months that a State commission makes to the allotment management plan.

(iv)

The installation of new fencing and the maintenance and repair of existing fencing, including—

(I)

the installation of cattle guards;

(II)

the installation of new fencing to adjust pasture boundaries;

(III)

the installation of new gates; and

(IV)

the removal of fencing.

(v)

Water infrastructure improvements described in paragraph (4).

(vi)

Any other activity that would otherwise qualify for a categorical exclusion under an allotment management plan, permit, or lease for domestic livestock grazing.

(4)

Water infrastructure improvements

A cooperative agreement shall include, with respect to allotment management plans authorized under paragraph (2), the assignment to the State of the responsibilities of the Secretary concerned to approve or construct water infrastructure improvements that are appropriate for the improvement of public grazing, including—

(A)
(i)

guzzlers, head boxes, ponds, pumps, tanks, springs, wells, diversions, troughs, impoundments, water control structures, and pipelines; or

(ii)

any other improvements that the applicable State commission considers appropriate; and

(B)

any appurtenance to an improvement described in subparagraph (A).

(5)

Access to land; water rights

(A)

In general

The Secretary concerned—

(i)

shall provide access to the land covered by an allotment management plan authorized under paragraph (2), including for the purpose of the construction of water infrastructure improvements described in paragraph (4); and

(ii)

shall not require as a condition of a management activity under a cooperative agreement an action that affects water rights.

(B)

Adjudication of water rights

With respect to the allotment management plans authorized under paragraph (2), water rights under the authority of a State by law shall be adjudicated by the State.

(6)

Grazing fees

(A)

In general

A fee charged for domestic livestock grazing under an allotment management plan authorized under paragraph (2) and shared between the State and the Secretary concerned in accordance with subparagraph (B) shall be in an amount not greater than the amount established for the applicable year under Executive Order 12548 (43 U.S.C. 1905 note; relating to grazing fees) (or a successor Executive order).

(B)

Revenue sharing

(i)

In general

A cooperative agreement shall include a provision for the sharing between the State and the Secretary concerned of revenue received from grazing fees described in subparagraph (A).

(ii)

Requirement

Revenue sharing under this subparagraph shall be proportional to the services that the State and the Secretary concerned are required to provide under the applicable cooperative agreement.

(C)

Additional fees

In addition to any fee charged under subparagraph (A), a State may charge additional fees for domestic livestock grazing on land covered by an allotment management plan administered by the State under paragraph (2), the revenue from which shall be retained by the State.

(7)

Wildfires

(A)

Wildfire rehabilitation

In the case of a catastrophic wildfire (as determined by the Secretary concerned (or a designee of the Secretary concerned)) on land covered by an allotment management plan authorized under paragraph (2), the Secretary concerned shall rehabilitate the land in accordance with this Act.

(B)

Compensation

(i)

In general

If a State or the holder of a grazing permit has posted a bond or purchased insurance as described in paragraph (14)(A)(iv), the Secretary concerned may seek compensation for any damages caused by a catastrophic wildfire, including the costs of any rehabilitation efforts carried out under subparagraph (A), from the bond or insurance if—

(I)

not later than 60 days after the date on which the wildfire is brought under control, as determined by the Secretary concerned, the Secretary concerned—

(aa)

conducts an investigation of the catastrophic wildfire; and

(bb)

makes the results of that investigation public;

(II)

as a result of that investigation, the Secretary concerned determines that negligent or deliberate behavior by the State or the holder of the grazing permit, as applicable, contributed to the wildfire; and

(III)

the Secretary concerned is able—

(aa)

to provide to the State or the holder of the grazing permit, as applicable, an itemized list of damages; and

(bb)

to ask for payment of those damages from the applicable bond or insurance.

(ii)

Disputes

If a State or the holder of a grazing permit disagrees with a determination of the Secretary concerned under subclause (II) of clause (i) or the valuation, as determined by the Secretary concerned, of any damages identified by the Secretary concerned under subclause (III) of that clause, the Secretary concerned may—

(I)

negotiate with the State or holder; or

(II)

file an action for damages in an appropriate district court of the United States against the State or holder.

(C)

Effect

Nothing in this paragraph exempts any individual or entity from any monetary or other penalty due to criminal or negligent behavior.

(8)

State advisory commission

(A)

In general

A Governor of a State that enters into a cooperative agreement shall establish a commission to advise the Governor on—

(i)

the substance and terms of the cooperative agreement; and

(ii)

any matters relating to carrying out the cooperative agreement.

(B)

Membership

A State commission shall be comprised of 14 members, of whom—

(i)

11 shall be appointed by the Governor of the applicable State, of whom—

(I)

3 shall be holders of 1 or more grazing permits or leases in the State, each of whom, to the maximum extent practicable, represent a different industry;

(II)

1 shall be a representative of the State department of agriculture (or any substantially similar State agency);

(III)

1 shall be a representative of the State department of wildlife (or any substantially similar State agency);

(IV)

1 shall be a representative of a nationally or regionally recognized agricultural organization;

(V)

1 shall be a representative of a nationally or regionally recognized organization the mission of which is to promote grazing of domestic animals on public lands;

(VI)

1 shall be a representative of a conservation or environmental organization;

(VII)

1 shall be a representative of a sportsmen’s organization;

(VIII)

1 shall be a representative of other users of public lands; and

(IX)

1 shall be a representative of land-grant colleges and universities (as defined in section 1404 of the National Agricultural Research, Extension, and Teaching Policy Act of 1977 (7 U.S.C. 3103)) in the State with expertise related to agricultural grazing;

(ii)

1 shall—

(I)

be appointed by the Secretary of Agriculture; and

(II)

be a representative of the Forest Service; and

(iii)

2 shall be appointed by the Secretary, of whom—

(I)

1 shall be a representative of the Bureau; and

(II)

1 shall be a representative of the United States Fish and Wildlife Service.

(C)

Chair

To manage the meetings of a State commission, the Governor of the State shall appoint a Chair of the State commission from among members appointed to the State commission under subparagraph (B)(i).

(D)

Quorum

(i)

In general

Ten members of a State commission shall constitute a quorum.

(ii)

Decisions

With respect to the duties described in subparagraph (E), decisions of a State commission shall be made by majority vote, a quorum being present.

(E)

Duties

A State commission shall—

(i)

oversee the development of policies for the operation and use of the allotment management plans covered by the cooperative agreement;

(ii)

be involved in, and stay informed of, any dispute resolution necessary to ensure that the administration of the applicable allotment management plans by the State is in accordance with—

(I)

this Act; and

(II)

the laws described in subparagraphs (A) through (C) of paragraph (11);

(iii)

assist, as necessary, in setting or adjusting grazing permit or lease boundaries;

(iv)

assist and be involved in any other decision that may affect the stability of—

(I)

the allotment management plan; or

(II)

the holder of the grazing permit or lease; and

(v)

adopt or approve the allotment management plans covered by the cooperative agreement.

(9)

Terms; conditions

(A)

Term of cooperative agreements

A cooperative agreement entered into under paragraph (2) shall be for a term of 30 years.

(B)

Renewal of cooperative agreements

(i)

In general

The Secretary concerned shall agree to a renewal of a cooperative agreement for an additional 30 years if—

(I)

the State requests that the cooperative agreement be renewed;

(II)

the State has satisfied all conditions of the cooperative agreement; and

(III)

the applicable State commission determines that monitoring during the period of a grazing lease or permit has shown positive outcomes in the joint monitoring regimen under paragraph (13).

(ii)

No other requirements or conditions for renewal

The Secretary concerned may not impose any additional requirement or condition for the renewal of a cooperative agreement under this subparagraph.

(C)

Term of grazing leases and permits

A permit or lease for domestic livestock grazing on land covered by a cooperative agreement shall—

(i)

be issued by the applicable State agency for a term of 30 years beginning on the date on which the applicable cooperative agreement is entered into under paragraph (2) or renewed under subparagraph (B), as applicable; and

(ii)

contain only the terms and conditions included in the applicable allotment management plan adopted or approved by the applicable State commission.

(10)

Enforcement of grazing leases and permits

A State entering into a cooperative agreement under this subsection may enter into an agreement with any local law enforcement agency for the enforcement of the terms of any permit or lease for domestic livestock grazing on land covered by the cooperative agreement if the area in which the law enforcement agency would act under that agreement is within the jurisdiction of that agency.

(11)

Applicable law

In administering allotment management plans under paragraph (2), a State shall be subject to—

(A)

the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.);

(B)

the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.); and

(C)

any other applicable Federal law (including regulations) that is consistent with State administration of allotment management plans under this subsection.

(12)

Resolution of disputes

(A)

Authority of the Interior Board of Land Appeals

Nothing in this subsection provides to the Interior Board of Land Appeals authority to hear a case with respect to a decision relating to an allotment management plan administered by a State under paragraph (2).

(B)

State dispute resolution process

(i)

In general

A cooperative agreement shall provide for the development of a process by the State to resolve disputes relating to a decision by the State with respect to an allotment management plan administered by the State under the cooperative agreement, including resolution of disputes through any mediation authority available to the State on the date of enactment of this subsection.

(ii)

Resolution

A dispute described in clause (i) shall be resolved in accordance with the process developed under that clause.

(C)

Third-party disputes

No party that is not directly involved in the administration of an allotment management plan by a State under paragraph (2) may receive any costs or fees under section 2412 of title 28, United States Code, with respect to any action brought to challenge any action taken with respect to the allotment management plan.

(13)

Monitoring

(A)

In general

A cooperative agreement shall include provisions for a joint monitoring regimen for the land covered by the applicable allotment management plan to be conducted by the applicable State agency and any applicable Federal agencies.

(B)

Requirement

A joint monitoring regimen implemented under subparagraph (A) shall comply with the requirements of the applicable allotment management plan, as adopted or approved by the applicable State commission under paragraph (8)(E)(v).

(C)

Data collection

To the maximum extent practicable, all parties to the cooperative agreement shall be present when data are collected under the joint monitoring regimen carried out under this paragraph.

(D)

Availability of findings

The findings of any monitoring carried out under this paragraph shall be made available to the Secretary concerned.

(14)

Termination

(A)

Termination of allotment management plans by the Secretary concerned

(i)

Notification of noncompliance

If the Secretary concerned determines that a State is not adequately carrying out the responsibilities of the State under an allotment management plan covered by a cooperative agreement, the Secretary concerned shall—

(I)

notify the State of the determination of noncompliance with the applicable allotment management plan; and

(II)

on request of the Governor of the State, provide the State with a description of each responsibility of the State under the applicable allotment management plan that is in need of corrective action.

(ii)

Corrective action

A State shall take corrective action with respect to each area of noncompliance for which the Secretary concerned has made a determination of noncompliance under clause (i) by—

(I)

the date that is 1 year after the date on which the Secretary concerned notifies the State under clause (i)(I); or

(II)

if the Secretary concerned determines an extension is appropriate, the date that is 120 days after the deadline described in subclause (I).

(iii)

Termination

Subject to clause (iv), if a State has not taken satisfactory corrective action, as determined by the Secretary concerned, by the applicable date described in clause (ii), the Secretary concerned shall terminate the applicable allotment management plan.

(iv)

Effect of bond and insurance

The Secretary concerned may not terminate an applicable allotment management plan covered by a cooperative agreement under this subparagraph if the State or the holder of a grazing permit or lease covered by the cooperative agreement has posted a bond or purchased insurance that, in the determination of the Secretary concerned, is sufficient to cover the cost of any potential harm to the applicable land that is caused by the State or the holder, as applicable.

(B)

Termination of allotment management plan by the State

(i)

In general

Subject to clause (ii), a State may terminate an applicable allotment management plan covered by a cooperative agreement entered into under this subsection at any time.

(ii)

Notice required

A State shall provide to the Secretary concerned notice of any termination of an applicable allotment management plan covered by a cooperative agreement under clause (i) not less than 90 days before the date on which that termination shall take effect.

(C)

Revocation of consent by the permittee

(i)

In general

The holder of a grazing permit or lease that has consented to management by the State of the permit or lease under subclause (I) or (II) of paragraph (2)(B)(i) may revoke that consent at any time.

(ii)

Termination

On revocation of consent to management by the State of the permit or lease under clause (i), the applicable allotment management plan shall be terminated.

(D)

Effect of termination or revocation

On termination of an applicable allotment management plan covered by a cooperative agreement under subparagraph (A), (B), or (C)—

(i)

management of the applicable allotment shall revert to the Secretary concerned;

(ii)

the allotment shall be managed in accordance with the authorities under which the allotment was managed before the date on which the Secretary concerned entered into the cooperative agreement, including any allotment management plan that applied to the allotment before that date; and

(iii)

no new NEPA process shall be required with respect to the use, in accordance with clause (ii), of an allotment management plan that applied to the allotment before the date on which the Secretary concerned entered into the cooperative agreement.

.