BLM Desk Guide to Cooperating Agency Relationships - National ...

ContentsDirector’s Message _____________________________________________________________ viiSection 1. Introduction ___________________________________________________________ 1The BLM’s Statutory Reponsibilities ______________________________________________ 1The Challenges of Federal Land Management ______________________________________ 2Section 2. Implementation of the Cooperating Agency Relationship ________________________ 7The Role of CAs _____________________________________________________________ 7Eligibility for CA Status ________________________________________________________ 8Eligibility of Tribes ____________________________________________________________ 9Invitations To Participate _______________________________________________________ 9How To Establish Participation _________________________________________________ 11The Role of CAs in the NEPA Process ___________________________________________ 11The Role of CAs in the Planning Process _________________________________________ 11Section 3. Preparation of a Memorandum of Understanding _____________________________ 17Section 4. Cooperating Agency Relationships: Frequently Asked Questions ________________ 21Qualifying Organizations ______________________________________________________ 21Criteria for CA eligibility ____________________________________________________ 21Federal agencies _________________________________________________________ 22State agencies ___________________________________________________________ 23Local governments _______________________________________________________ 23Tribal governments _______________________________________________________ 23Intergovernmental organizations _____________________________________________ 24The Establishment of Working Relationships ______________________________________ 25Consensus and collaboration in the CA relationship ______________________________ 25CA relationships and schedules ______________________________________________ 26CA roles in preparing RMPs and EISs _________________________________________ 27CAs and multistate projects _________________________________________________ 28The creation of MOUs _____________________________________________________ 28Informal alternatives to the CA relationship _____________________________________ 29The role of a joint lead agency _______________________________________________ 29Financial support for the CA relationship _______________________________________ 30Termination of the CA relationship ____________________________________________ 30Other Requirements and Challenges ____________________________________________ 31Meeting coordination and consistency requirements ______________________________ 31Information sharing _______________________________________________________ 34FACA compliance ________________________________________________________ 35CA meetings ____________________________________________________________ 36Protests and appeals ______________________________________________________ 36The BLM’s role as a CA ____________________________________________________ 36Section 5. Resources and Training _________________________________________________ 43Resources _________________________________________________________________ 43Training ___________________________________________________________________ 43BLM • A Desk Guide to Cooperating Agency Relationships and Coordination with Intergovernmental Partners • 2012iii

AcknowledgmentsDOI and BLM staff. 2d edition. Project coordinators: Shannon Stewart and Rob Winthrop(Decision Support, Planning, and NEPA). Writers: Cynthia Moses-Nedd (External andIntergovernmental Affairs), Robert Winthrop, and Shannon Stewart. Production and editing:Jacqui Read (Renewable Resources and Planning), Nancy Esworthy and Jennifer Kapus (NationalOperations Center). Legal support: Laura Damm (Offi ce of the Solicitor). Cooperating agencyliaison: Cynthia Moses-Nedd.We thank Island Press for permission to reproduce a table from The Western Confl uence: A Guideto Governing Natural Resources by Matthew McKinney and William Harmon. Thanks to RheySolomon (Shipley Group) for suggestions regarding cooperating agency roles.BLM • A Desk Guide to Cooperating Agency Relationships and Coordination with Intergovernmental Partners • 2012v

Since the BLM’s implementationof the Guide, we havecompleted more than60 resource management plansand have engaged more than300 intergovernmental partnersat the Federal, State, local,and tribal levels.vi

Director’s MessageThe Bureau of Land Management (BLM) has led the way in establishing a culture ofcooperation, collaboration, and partnership in its land use planning process by promulgatingregulations that establish a consistent role for cooperating agencies. State and fi eldoffi ces are required to engage their government partners consistently and effectively in thepreparation or revision of land use plans. In 2008 the Department of the Interior broadenedits regulations to require every Interior agency to offer cooperating agency status to all eligibleintergovernmental partners for all environmental impact statements. The Department alsoindicated that cooperating agency procedures could be used to support efforts conducted underenvironmental assessments. We believe that by working closely with our State, local, tribal, andFederal government partners, we improve communication and understanding, identify commongoals and objectives, and enhance the quality of our management of the public lands. Theseregulations demonstrate the strong commitment to recognizing the vital role that Federal, State,local, and tribal government partners play in ensuring effective and durable land managementdecisions.A Desk Guide to Cooperating Agency Relationships, fi rst published in 2005, is a “how to”publication that all BLM managers and staff have been required to put into practice. The Guidehas helped to shape our collaborative efforts with State, local, and tribal governments and otherFederal agencies to recognize common goals and achieve balanced approaches to multipleuse management across the public lands. Since the BLM’s implementation of the Guide wehave completed more than 60 resource management plans and have engaged more than 300intergovernmental partners at the Federal, State, local, and tribal levels. We have been able toincorporate the sound advice and recommendations of these government partners to create andimplement successful land use plans.We have updated the original Guide to refl ect policy changes in how we deal with thecooperating agency relationship, to incorporate what we have learned from our cooperatingagency experiences, to clarify how cooperating agency status differs from efforts to improvecoordination, and to include updated language and references from the Department ofthe Interior’s revised regulations and policies. We have also renamed it “A Desk Guideto Cooperating Agency Relationships and Coordination with Intergovernmental Partners.”This name change refl ects our commitment to working with Federal, State, local, and tribalgovernment partners and coordinating on a variety of activities on an ongoing basis. Throughthis expansion of our cooperative efforts, it is my hope that we enter a new era of public landmanagement that furthers our ultimate goal of managing public lands and resources for thegreatest good for all Americans.BLM • A Desk Guide to Cooperating Agency Relationships and Coordination with Intergovernmental Partners • 2012Director, Bureau of Land Managementvii

The CA relationship isdistinctive, moving beyondconsultation to engage officialsand staff of other agenciesand levels of government inworking partnerships.viii

Section 1IntroductionSection 1. IntroductionIn the American political system, differentspheres of government—Federal, State,local, and tribal—have their respective areasof responsibility, authority, and expertise.As a result, the need for cooperation in themanagement of public lands and resources isespecially critical. This Guide describes onetool for creating more effective governmentpartnerships: the lead agency–cooperatingagency relationship (referred to in this Guideas the “cooperating agency (CA) relationship”)and its application to the planning andenvironmental analysis responsibilities ofthe Bureau of Land Management (BLM).While this Guide is primarily concerned withimplementing formal CA relationships inpreparing resource management plans (RMPs)and environmental analyses, collaborationwith State, tribal, and local governments—aswell as with other Federal agencies—shouldalso be standard practice at the BLM for allland use planning and related implementationactivities.Section 1 of this Guide introduces the CArelationship and describes the opportunitiesand challenges this approach presents for theBLM and its government partners.Section 2 describes the CA provisions of theBLM’s planning and National EnvironmentalPolicy Act (NEPA) regulations and guidance,reviews CA eligibility criteria, and describes theappropriate roles for CAs at various steps inthe BLM’s planning and NEPA processes.Section 3 describes key elements of aneffective memorandum of understanding(MOU) establishing a CA relationship.Section 4 provides answers to frequentlyasked questions regarding effective workingrelationships with CAs.Section 5 describes sources of informationand training that can help support effectiveinteractions between the BLM and its CApartners.The BLM’s StatutoryResponsibilitiesThe CA relationship is distinctive, movingbeyond consultation to engage offi cialsand staff of other agencies and levels ofgovernment in working partnerships. The CAsshare skills and resources to help shape BLMland use plans and environmental analysesthat better refl ect the policies, needs, andconditions of their jurisdictions and the citizensthey represent.The CA relationship provides a framework forintergovernmental efforts by:• Gaining early and consistent involvementof CA partners• Incorporating local knowledge of economic,social, and environmental conditions, aswell as Federal, State, local, and tribal landuse requirements• Addressing intergovernmental issues• Avoiding duplication of effort1

BLM • A Desk Guide to Cooperating Agency Relationships and Coordination with Intergovernmental Partners • 20122• Enhancing local credibility of plans andenvironmental impact statements (EISs)• Encouraging CA support for managementdecisions• Building relationships of trust andcooperation• Making better, more informed decisionsThe CA role derives from the NationalEnvironmental Policy Act of 1969, which callson Federal, State, and local governmentsto cooperate with the goal of achieving“productive harmony” between humans andtheir environment (42 U.S.C. 4321–4347). Theregulations of the Council on EnvironmentalQuality (CEQ) that implement NEPA (40 CFRParts 1500–1508) allow Federal agencies—as lead agencies—to invite State, local, andtribal governments, as well as other Federalagencies, to serve as CAs in the preparation ofEISs.Additionally, in accordance with the FederalLand Policy and Management Act (FLPMA)of 1976, in the development and revision ofland use plans, the BLM has an independentresponsibility to coordinate with other units ofgovernment (43 U.S.C. 1712(c)(9)). As stated,the BLM will, to the extent practicable, seekto maximize consistency with the plans andpolicies of other government entities, whetheror not a CA relationship has been established.The National EnvironmentalPolicy Act…it is the continuing policy of the FederalGovernment, in cooperation with State andlocal governments, and other concernedpublic and private organizations … to createand maintain conditions under which manand nature can exist in productive harmony,and fulfill the social, economic, and otherrequirements of present and future generationsof Americans (42 U.S.C. 4331(a), emphasisadded).A CA relationship, however, provides anexcellent opportunity to meet the coordinationresponsibilities under FLPMA. This Guide willclarify the distinctions between a cooperatingagency relationship and the coordination thatthe BLM undertakes in carrying out FLPMA.The BLM amended its planning regulations in2005 to ensure that it engages its governmentpartners consistently and effectively throughthe CA relationship whenever land useplans are prepared or revised. In 2008 theDepartment of the Interior (DOI) applied thispolicy to the preparation of all EISs. TheCEQ and the DOI have also affi rmed that theCA relationship may be used for preparationof environmental assessments (EAs). CEQMemorandum on Cooperating Agency Reports,May 26, 2006; 43 CFR 46.225(e).The Challenges of FederalLand ManagementThe BLM has a large and complexresponsibility—managing more than 245million acres of America’s public lands androughly 700 million acres of its subsurfacemineral estate. More than 140 resourcemanagement plans authorize and guide everyaction and approved use of these lands andresources. The BLM’s plans encompassa highly varied terrain, from Alaska’s NorthSlope and California’s Mojave Desert, to theopen space surrounding many rapidly growingwestern cities. The agency’s challengeis to manage this portfolio on behalf of allAmericans, while recognizing the considerablelocal and regional consequences its decisionsmay have. The BLM must act in compliancewith Federal laws, regulations, and policieswhile seeking consistency with local andregional laws, policies, plans, needs, andvalues. This Guide represents a major steptoward meeting these challenges by ensuringthat the agency’s decisions benefi t from thevaried skills and knowledge of the BLM’sgovernment partners, including knowledge oflocal conditions and values.

In any Federal undertaking, harmonizingnational, regional, and local governanceentails at least three key tasks. As MatthewMcKinney and William Harmon noted in TheWestern Confl uence: A Guide to GoverningNatural Resources (2004), these includeintegrating the involvement of multiple partieswith competing interests and values, removingobstacles to sharing and validating relevantinformation, and resolving confl icts amonginstitutions and policies.• Multiple Parties. State, local, and tribalgovernment offi cials are often in a betterposition than are Federal land managersto engage the communities and interestgroups most likely to be affected by a planor proposed activity.• Complex Information. Effectivediscussion between Federal agenciesand the public is often blocked by deeplyincompatible views of the “facts” regardingcurrent environmental and socioeconomicconditions as well as the effects that aproposed plan or activity may have onthese conditions. Resolution of theseincompatibilities often requires the leadagency and CA partners to engage injoint factfi nding and to seek agreement onwhere to fi nd valid information and how tointerpret it.• Conflicting Policies and Institutions.The challenge of managing public landscan reveal signifi cant disagreementsin jurisdictions and mandates, not onlyamong Federal, State, local, and tribalgovernments but also among differentFederal or State agencies. The CArelationship offers a forum in which todiscuss and, if possible, reconcile divergentpolicies and plans for the common good.Although challenging, intergovernmentalcooperation in the management of lands andresources can yield great benefi ts for thepublic. The CA relationship is one tool amongmany that can advance collective effortsamong government partners. Each partymay have some lessons to learn—and somepractices to unlearn.Common Characteristics ofWestern Resource DisputesMultiple Parties• Clash of values• Competing interests• Complicated relationships• Varying types and levels of powerComplex Information• Lack of information• Misinformation• Different views on what information isrelevant• Different procedures to collect and assessdata• Different interpretation of data• Different levels of comfort with risk anduncertaintyA Briar Patch of Policies and Institutions• Multiple jurisdictions• Competing missions and mandates• Lack of meaningful public participation• Multiple opportunities for appeal• A fundamental question of who shoulddecideFrom The Western Confluence: A Guide toGoverning Natural Resources, by MatthewMcKinney and William Harmon. Copyright2004 by the authors. Reproduced bypermission of Island Press, Washington, DC.Experience has shown that there are threeprimary lessons that can lead to success whenworking across government boundaries. Theyare:1. Federal, State, local, and tribal partnersneed to recognize that the CA relationshipis a forum for sharing information andexpertise, not for asserting authority.Engaging in a CA relationship neitheraugments nor diminishes an entity’sSection 1. Introduction3

BLM • A Desk Guide to Cooperating Agency Relationships and Coordination with Intergovernmental Partners • 2012jurisdiction and authority. However, mutualrespect for each agency’s authority andjurisdiction is critical.2. BLM managers and staff shouldacknowledge that the CA relationshiprequires new ways of doing business.Engaging with government partners asCAs is a unique form of consultation.Cooperating agencies expect, and shouldbe given, a signifi cant role (commensuratewith available time and knowledge)in shaping plans and environmentalanalyses—instead of merely commentingon them.3. All parties will fi nd the CA relationship mostproductive when they emphasize mutual,rather than individual, gains and seeksolutions that meet others’ needs as wellas their own.Working with other government offi cialsthrough the CA relationship makes betteroutcomes more likely and can establish afoundation for long-term cooperation thatbenefi ts all partners.4

By adding provisions for the CAsto its planning regulations, theBLM has included the CAs aspartners in land use planning.6

Section 2Implementation of the CooperatingAgency RelationshipThis section explains the requirementsregarding CA relationships established by BLMplanning regulations and by guidance from theDOI on implementing NEPA (43 CFR Part 46;DM 516 Chapters 1–15).The CEQ regulations implementing NEPAgovern the CA relationship for all Federalagencies preparing EISs. Only those CEQregulations specifi c to the CA relationship arecited here. CAs are typically not treated asadvisory committees under the purview ofthe Federal Advisory Committee Act (FACA,5 U.S.C. App.). This is because meetingsheld exclusively between Federal offi cialsand elected offi cers of State, local, and tribalgovernments (or their designated employeesauthorized to act on their behalf) acting in theiroffi cial capacities are generally exempt fromthe requirements of FACA when the meetingsare solely for the purpose of exchanging views,information, or advice related to managementor implementation of Federal programsestablished pursuant to a public law thatprovides intergovernmental responsibilities oradministration (2 U.S.C. 1534(b)).The Role of CAsThe CEQ regulations call for early andsignifi cant involvement by CAs in thepreparation of an EIS. Both lead agenciesand cooperating agencies assume signifi cantobligations in offering and accepting the CArelationship, meaning:• As a lead agency, the BLM is expected touse the analyses and proposals of a CA “tothe maximum extent possible consistentwith its responsibility.”• CAs accept obligations to contribute staff tothe EIS team, develop and review analysesfor which they have particular expertise,and fund their own participation.The BLM land use planning process yieldsa dual-function document: an RMP and anEIS. The distinction is important. Planning(refl ected in the RMP) selects the goalsand identifi es the management actionsneeded to achieve them. Environmentalanalysis (refl ected in the EIS) identifi es theconsequences of achieving those goals. TheCEQ regulations make the CAs partners inenvironmental analysis. By adding provisionsfor the CAs to its planning regulations, the BLMhas included the CAs as partners in land useplanning. (Because this Guide discusses bothplans and implementation actions and projects,“EIS” will generally refer to implementationand project-level documents, although RMPrevisions also involve EISs.)40 CFR 1501.6 (CEQ)Roles of lead and cooperating agencies.(a) The lead agency shall:(1) Request the participation of eachcooperating agency in the NEPA process atthe earliest possible time.(2) Use the environmental analysis andproposals of cooperating agencies withjurisdiction by law or special expertise, tothe maximum extent possible consistentwith its responsibility as lead agency.(3) Meet with a cooperating agency atthe latter’s request.(b) Each cooperating agency shall:(1) Participate in the NEPA process atthe earliest possible time.(2) Participate in the scopingprocess….(3) Assume on request of the leadSection 2. Implementation of the Cooperating Agency Relationship7

BLM • A Desk Guide to Cooperating Agency Relationships and Coordination with Intergovernmental Partners • 20128agency responsibility for developinginformation and preparing environmentalanalyses including portions of theenvironmental impact statementconcerning which the cooperating agencyhas special expertise.(4) Make available staff support atthe lead agency’s request to enhance thelatter’s interdisciplinary capability.(5) Normally use its own funds. Thelead agency shall, to the extent availablefunds permit, fund those major activitiesor analyses it requests from cooperatingagencies. Potential lead agencies shallinclude such funding requirements in theirbudget requests.Eligibility for CA StatusState agencies, local governments, tribalgovernments, and other Federal agencies mayserve as CAs. CEQ regulations, apart from theprovision for tribes (see subsection Eligibilityof Tribes), recognize two criteria for CA status:jurisdiction by law and special expertise. TheBLM regulations incorporate these criteria.40 CFR 1508.5 (CEQ)Defining eligibility.Cooperating agency means any federalagency other than a lead agency whichhas jurisdiction by law or special expertisewith respect to any environmentalimpact…. A state or local agency of similarqualifi cations or, when the effects are ona reservation, an Indian Tribe, may byagreement with the lead agency become acooperating agency.Jurisdiction by law offers a very specifi c basisfor CA status: Authority by a Federal, State,tribal, or local government entity to approve,deny, or fi nance all or part of a proposal. Notethat a Federal agency eligible on the basis ofjurisdiction by law must serve as a CA whenso requested by the lead agency (40 CFR1501.6).• The U.S. Fish and Wildlife Service (FWS)could possess jurisdiction by law foran RMP or EIS through its consultationrole under Section 7 of the EndangeredSpecies Act (ESA). Note that the FWSwould qualify as a CA not merely becausethe BLM is obliged to consult with thatagency pursuant to Section 7 of the ESA,but because in the Section 7 consultationprocess the FWS has the authority toimpose binding terms and conditions on anagency’s action.• A State’s Department of Natural Resourcescould possess jurisdiction by law for anRMP or EIS through its delegated authorityunder Section 402 of the Clean WaterAct to issue National Pollutant DischargeElimination System permits.40 CFR 1508.15 (CEQ)Jurisdiction by law.Jurisdiction by law means agency authorityto approve, veto, or fi nance all or part ofthe proposal.Special expertise provides a broader windowfor CA status, emphasizing the “relevantcapabilities or knowledge” that a Federal,State, local, or tribal government entity haswith respect to reasonable alternatives or anysignifi cant environmental, social, or economicimpacts associated with a proposed action.Note that, as compared to a Federal agencywith jurisdiction by law, a Federal agency thatis eligible on the basis of special expertiseis not obligated to serve as a CA when sorequested by the lead agency (40 CFR1501.6).• State agencies responsible for policies orprograms affecting the condition and useof public lands—for example, by regulatingwater rights or sport hunting—wouldpossess special expertise through relevantstatutory responsibility.• Cities and counties within a planningarea would possess special expertiseregarding local land use plans and policiesrelevant to BLM requirements for land useplan coordination and consistency (43CFR 1610.3-1, 3-2). Local governments

could also possess expertise on theenvironmental, social, or economic impactsof a proposal and specialized local dataand information.There are two key considerations indetermining whether an agency or governmentpossesses special expertise relative to anRMP or EIS. The expertise must be relevantto the decisions to be made, and it must bedemonstrated, generally through anappropriate program focus and staffcapabilities.40 CFR 1508.26 (CEQ)Special expertise.Special expertise means statutoryresponsibility, agency mission, or relatedprogram experience.The MOU establishing a CA relationshipshould identify the basis for eligibility; seeSection 3 (Preparation of an MOU). Foradditional guidance on applying the CAeligibility criteria, see Section 4 (CooperatingAgency Relationships: Frequently AskedQuestions).will participate in the various steps ofBLM’s planning process as feasible, giventhe constraints of their resources andexpertise.Eligibility of TribesThe CEQ regulations differ from the BLMand DOI regulations regarding the eligibilityof American Indian tribes for CA status. TheCEQ regulations specify that a tribe is eligible“when the effects [of an action] are on areservation” (40 CFR 1508.5). In contrast,the BLM and DOI regulations apply the sameeligibility criteria for Federal, State, local, andtribal government entities: jurisdiction by lawor special expertise (43 CFR 1601.0-5(d)(2)and 46.225(a)(3)). The broader BLM and DOIcriteria will apply in the preparation of all RMPsand EISs and, when appropriate, EAs.For more guidance on managing the CArelationship with tribes, see Section 4(Cooperating Agency Relationships: FrequentlyAsked Questions).Section 2. Implementation of the Cooperating Agency Relationship43 CFR 1601.0-5 (BLM) (also see 43 CFR46.225(a) (DOI))Defining eligibility.(d) Eligible cooperating agency means:(1) A Federal agency other than alead agency that is qualifi ed to participatein the development of environmentalimpact statements as provided in 40 CFR1501.6 and 1508.5 or, as necessary,other environmental documents that BLMprepares, by virtue of its jurisdiction by lawas defi ned in 40 CFR 1508.15, or specialexpertise as defi ned in 40 CFR 1508.26; or(2) A federally recognized Indian tribe,a state agency, or a local governmentagency with similar qualifi cations.(e) Cooperating agency meansan eligible governmental entity thathas entered into a written agreementwith the BLM establishing cooperatingagency status in the planning and NEPAprocesses. BLM and the cooperatingagency will work together under the termsof the agreement. Cooperating agenciesInvitations To ParticipateThe CEQ regulations state that a leadagency shall request the participation ofeligible agencies and governments as CAsin the NEPA process (40 CFR 1501.6(a)(1)).Further, both BLM planning regulations andDOI NEPA regulations require managers toinvite eligible agencies and governments tobecome CAs on RMPs and EISs. Managersare expected to make a reasonable effort toidentify Federal, State, local, and tribal entitiespossessing jurisdiction by law or specialexpertise concerning an RMP or EIS. Oncethese entities are identifi ed, managers mustextend invitations to eligible agencies andgovernments (43 CFR 1610.3-1 and 43 CFR46.225(b)).In accordance with DOI regulations (43 CFR46.225(c)), the Responsible Offi cial for thelead bureau must consider any request bya government entity to participate as a CA.9

BLM • A Desk Guide to Cooperating Agency Relationships and Coordination with Intergovernmental Partners • 201210The request must be evaluated against CAeligibility criteria—jurisdiction by law or specialexpertise. If the Responsible Offi cial for thelead bureau denies a request, or determines itis inappropriate to extend an invitation, he orshe must state the reasons in the EIS.The BLM’s Division of Decision Support,Planning and NEPA (WO-210) conductsan annual CA data call on behalf of theDOI’s Office of Environmental Policy andCompliance. This information is subsequentlyprovided to the CEQ. Authorized offi cers(AOs) should keep records of all CAparticipation for planning and NEPA activitiesto support this effort. In addition to theannual data call, CEQ regulations requireany CA, in response to the lead agency’srequest for assistance in preparing the EISto reply that other program commitmentspreclude the requested involvement and toprovide a copy of said reply to CEQ (40 CFR1501.6(c)). In accordance, BLM offi ces areinstructed to submit immediately a copy of anycorrespondence from the BLM declining aninvitation to participate as a cooperator to theDivision Chief of WO-210; WO-210 will in turnsubmit this information to the CEQ.Note that the requirement to invite eligiblegovernment and tribal entities to become a CAapplies to all RMPs and EISs. This includesimplementation actions and projects analyzedin an EIS, and new plans, plan revisions, orplan amendments prepared in conjunction withan EIS. The requirement does not apply toplan amendments or other activities preparedthrough an EA, although the CEQ and DOIhave affi rmed that the CA relationship mayalso be used for preparation of EAs (CEQMemorandum on Cooperating Agency Reports,May 26, 2006; 43 CFR 46.225(e)).43 CFR 1610.3-1 (BLM)Inviting participation.(a)(5) Where possible and appropriate,develop resource management planscollaboratively with cooperating agencies.(b) When developing or revisingresource management plans, BLM StateDirectors and Field Managers will inviteeligible Federal agencies, state and localgovernments, and federally recognizedIndian tribes to participate as cooperatingagencies. The same requirement applieswhen BLM amends resource managementplans through an environmental impactstatement. State Directors and FieldManagers will consider any requests ofother Federal agencies, state and localgovernments, and federally recognizedIndian tribes for cooperating agency status.Field Managers who deny such requestswill inform the State Director of the denial.The State Director will determine if thedenial is appropriate.43 CFR 46.155 (DOI)Inviting participation.The Responsible Offi cial must wheneverpossible consult, coordinate, andcooperate with relevant State, local, andtribal governments and other bureausand Federal agencies concerning theenvironmental effects of any Federal actionwithin the jurisdictions or related to theinterests of these entities.43 CFR 46.225 (DOI)Inviting participation.(b)…the Responsible Offi cial forthe lead bureau must invite eligiblegovernmental entities to participate ascooperating agencies when the bureauis developing an environmental impactstatement.(c) The Responsible Offi cial for thelead bureau must consider any requestby an eligible governmental entity toparticipate in a particular environmentalimpact statement as a cooperating agency.If the Responsible Offi cial for the leadbureau denies a request, or determinesit is inappropriate to extend an invitation,he or she must state the reasons in theenvironmental impact statement. Denial ofa request or not extending an invitation forcooperating agency status is not subjectto any internal administrative appealsprocess, nor is it a fi nal agency actionsubject to review under the AdministrativeProcedure Act, 5 U.S.C. 701 et seq.

BLM • A Desk Guide to Cooperating Agency Relationships and Coordination with Intergovernmental Partners • 2012121. The BLM develops apreparation plan.The RMP’s preparation plan should includea list of potential CAs and a preliminaryassessment of the role of each entity basedon jurisdiction by law or special expertise.The preparation plan establishes the planningschedule and budget within which the CAsmust operate. Informal discussions withpotential CAs should begin at this time,followed by formal invitations for CA status asappropriate. The BLM works with the potentialCAs to prepare an MOU to establish CArelationships.Suggested roles for CAs:Identify relevant local and regionalorganizations and interest groups. Sponsorpublic forums in conjunction with thelead agency. Identify coordination needsassociated with Federal, State, local, andtribal land use plans, policies, and controls.Begin to identify signifi cant issues. Workwith the appropriate BLM offi ce to develop anMOU. Participate in the development of thepreparation plan, as appropriate. For example,it would be appropriate for CAs to help inidentifying data and inventory needs as well asanticipated management issues and concerns.It is expected that CAs would be involved to alesser extent on some aspects of a preparationplan, such as schedule and budget.2. The BLM conducts scoping andidentifies issues.This process provides a major opportunity forBLM and CA discussion. The issues selectedwill guide the planning process. To the extentconsistent with other BLM responsibilities,these issues should include matters signifi cantto CAs.Suggested roles for CAs:Sponsor public forums in conjunction with thelead agency. Collaborate in assessing scopingcomments. Identify coordination needsassociated with Federal, State, local, and triballand use plans, policies, and controls. Identifysignifi cant issues. Identify connected, similar,and cumulative actions.43 CFR 1610.4-1 (BLM)Identification of issues.At the outset of the planning process,the public, other Federal agencies, Stateand local governments and Indian tribesshall be given an opportunity to suggestconcerns, needs, and resource use,development and protection opportunitiesfor consideration in the preparation ofthe resource management plan. TheField Manager, in collaboration with anycooperating agencies, will analyze thosesuggestions and other available data, suchas records of resource conditions, trends,needs, and problems, and select topicsand determine the issues to be addressedduring the planning process. [Here andin other excerpts from 43 CFR 1610.4,emphasis added.]3. The BLM develops planningcriteria.At the start of the planning process thefi eld offi ce planning team determines theparameters that will guide development of theplan consistent with statutory and regulatoryrequirements. These planning criteria aid intailoring plans to identifi ed issues and helpeliminate unnecessary data collection andanalysis. The BLM has an obligation to seekconsistency with Federal, State, local, andtribal plans, but only to the degree that suchplans are also consistent with applicableFederal law and regulation.Suggested roles for CAs:Provide advice on proposed planning criteria.Identify pertinent elements of Federal, State,local, and tribal plans (such as transportationand environmental regulations). Identify legalrequirements that shape Federal, State, local,and tribal CA policies and responsibilities.43 CFR 1610.4-2 (BLM)Development of planning criteria.(a) The Field Manager will preparecriteria to guide development of theresource management plan or revision, toensure:

BLM • A Desk Guide to Cooperating Agency Relationships and Coordination with Intergovernmental Partners • 201214Suggested roles for CAs:Suggest models and methods for impactanalyses. Develop and review direct, indirect,and cumulative effects analysis within CA’sexpertise. Suggest mitigation measures foradverse effects.43 CFR 1610.4-6 (BLM)Estimating effects of alternatives.The Field Manager, in collaborationwith any cooperating agencies, willestimate and display the physical,biological, economic, and social effects ofimplementing each alternative consideredin detail.8. The BLM selects preferredalternative and issues the draft RMP.The various planning alternatives must beevaluated in relation to planning issues andcriteria and the analysis of effects. The AOselects a preferred alternative and forwardsthe resulting draft plan to the State Director forapproval and publication. The draft plan mustbe available for public comment for a minimumof 90 days.Suggested roles for CAs:Collaborate with the BLM’s AO in evaluatingalternatives. Provide information forpreliminary (internal) draft RMP. Review thepreliminary (internal) draft RMP. After publicrelease of the draft RMP/draft EIS, CAs mayprovide written comment, if desired, just asnon-CAs and members of the public areallowed.43 CFR 1610.4-7 (BLM)Selection of preferred alternative.The Field Manager, in collaboration withany cooperating agencies, will evaluatethe alternatives, estimate their effectsaccording to the planning criteria, andidentify a preferred alternative thatbest meets Director and State Directorguidance. Nonetheless, the decision toselect a preferred alternative remains theexclusive responsibility of the BLM. Theresulting draft resource management planand draft environmental impact statementshall be forwarded to the State Directorfor approval, publication, and fi ling withthe Environmental Protection Agency.This draft plan and environmental impactstatement shall be provided for commentto the Governor of the State involved,and to offi cials of other Federal agencies,State and local governments and Indiantribes that the State Director has reason tobelieve would be concerned.9. The BLM responds to commentsand issues the final RMP.The BLM is required to respond to substantivecomments submitted on a draft RMP/draftEIS that reveal new information, missinginformation, or fl awed analysis that couldsubstantially change the conclusions. The AOthen forwards the fi nal plan, revised as neededto refl ect comments received, to the StateDirector for publication. The document is alsoforwarded to the Governor for a 60-day reviewto identify any inconsistencies with State orlocal plans, policies, or programs.Suggested roles for CAs:Review comments within CA’s expertiseand assist the BLM in preparing responses.Review the preliminary (internal) draft ofthe proposed RMP. State agency CAs maycontribute to the Governor’s consistencyreview.43 CFR 1610.4-8 (BLM)Selection of resource management plan.After publication of the draft resourcemanagement plan and draft environmentalimpact statement, the Field Manager shallevaluate the comments received and selectand recommend to the State Director,for supervisory review and publication,a proposed resource management planand fi nal environmental impact statement.After supervisory review of the proposedresource management plan, the StateDirector shall publish the plan and fi le therelated environmental impact statement.See 43 CFR 1610.3-2(e) for requirements ofthe Governor’s consistency review.

Section 3Preparation of a Memorandumof UnderstandingKey to the CA relationship is the negotiationof an effective MOU that acknowledgesthe interests, expertise, and jurisdictionalresponsibilities of both the BLM and its CApartners and that outlines their respective rolesand responsibilities in the planning and NEPAprocesses. DOI policy states that bureausshould develop and adopt an MOU to establisha CA relationship and that an MOU must beused in the case of non-Federal agencies (43CFR 46.225(d)). An MOU will also providefor continuity despite changes in priorities andpersonnel within the BLM and its CA partners.While the framework for a CA relationship isestablished by an MOU, its utility is limitedif open and honest communication does notexist among the cooperating agencies. AnMOU may transform a diffi cult relationship intoa productive one, by reducing the chance forfriction and misunderstanding by describingin suffi cient detail each participant’s goalsand expectations and how the CAs will worktogether. Positive results will come from thewillingness of all parties to pursue soundresource management on America’s publiclands.at: http://www.blm.gov/wo/st/en/info/nepa/cooperating_agencies.html.Please note: The Model MOU is intendedto be used only as a guide. The BLM andCAs should work together to ensure that theagreed on MOU refl ects their unique workingrelationship and the tasks at hand.Introduction• Describe the planning or NEPA effortand the major statutory and regulatoryrequirements it fulfi lls.• Identify the government entities assumingCA status through the MOU and theirqualifi cations: jurisdiction by law, specialexpertise, or both.• If the CA is a tribal entity, specify thegovernment-to-government consultationprovision, including applicable laws anddirectives.PurposeSection 3. Preparation of a Memorandum of UnderstandingThe BLM should ensure that cooperatorsare engaged in drafting the MOU. There isno required format for an MOU, but thereare certain essential elements that shouldbe included in all MOUs as a basis for aneffective CA relationship. The BLM hasdeveloped a Model MOU, which providesguidance for developing a comprehensive,mutually respectful framework to guide theCA relationship. A summary of the BLM’sModel MOU is included below (a copy ofthe complete Model MOU can be found onthe BLM’s Cooperating Agencies webpage• Describe what the MOU will accomplish.• Designate cooperating agency(ies) in theplanning or NEPA process.• Identify the lead agency that hasresponsibility for the completion of theplanning or NEPA effort.• Establish a framework for cooperationand coordination between the leadagency and the cooperating agency(ies)17

BLM • A Desk Guide to Cooperating Agency Relationships and Coordination with Intergovernmental Partners • 2012that will ensure successful completion ofthe planning or NEPA effort in a timely,effi cient, and thorough manner.• Describe the respective responsibilities,jurisdictional authority, and expertise ofeach of the parties in the planning or NEPAprocess.Authorities for the MOU• Identify the principal statutory authoritiesthat authorize the parties to enter intothe MOU (such as the NEPA of 1969 (42U.S.C. 4321 et seq.); Federal Land Policyand Management Act of 1976 (43 U.S.C.1701 et seq.); Council on EnvironmentalQuality regulations on implementing NEPA(40 CFR Part 1501 et seq.); BLM planningregulations (43 CFR 1601 et seq.); andother authorities).Roles and Responsibilities• Identify the roles of each party in theplanning or NEPA process, and outline theresponsibilities each party will assume.• Describe the BLM’s responsibility for thecontent of the planning or NEPA document,including the BLM’s obligation to considerCA input, particularly in those areas wherethe CA is deemed to possess jurisdictionby law or special expertise.• Describe those areas where the CA willprovide information, comments, andtechnical expertise to the lead agencyregarding those elements of the planning orNEPA effort in which the CA has jurisdictionor special expertise or for which the leadagency requests the CA’s assistance.• Specifi cally address any matters ofcompensation (monetary or in-kind) forCAs providing technical analysis or data.The BLM should consult the Department’sOffi ce of the Solicitor to determine if anymatters of compensation require a moreformalized agreement than an MOU.• Describe the schedule for any tasksassigned through the MOU.Other Provisions• Include standard legal stipulations toindicate, for example, that authoritiesare not altered and that immunities anddefenses of all parties are retained.• Include provisions to address issues suchas confl icts of interest, the managementand documentation of disagreements, andprocedures that will be employed whenparties disagree on matters of scientifi cinformation, data collection, or analysis.• Describe procedures for handlingconfi dential and predecisional information,while paying particular attention to state“sunshine” laws, requirements of theFreedom of Information Act (FOIA), andother pertinent laws.• Include a confl ict resolution provision,which may include options for facilitationand joint factfi nding. The lead agencyand CAs may consider retaining anindependent facilitator to foster clearcommunication among the parties. Theparties may stipulate in the MOU that afacilitator be used for a specifi c period andmay agree to review the need for suchassistance at designated intervals. A costsharingagreement (monetary, or in-kind) topay for the facilitator should be detailed inthe MOU.• If necessary, include detailed provisions forengaging contractors as representatives forthe CAs.Agency Representatives• Designate a representative and alternaterepresentative for each party to ensurecoordination between the cooperatingagency(ies) and the lead agency during theplanning or NEPA process.18

Administration of the MOU• Describe MOU approval authority. Forthe BLM, the MOU shall be signed by theauthorized offi cer in accordance with BLMManual 1203 and appropriate delegationsof authority. For CAs, the MOU shall besigned by a similarly authorized offi cial.• Describe how the MOU may be amendedor modifi ed.• Describe how and under whatcircumstances the MOU may beterminated.Section 3. Preparation of a Memorandum of Understanding19

Section 4Cooperating Agency Relationships:Frequently Asked QuestionsQualifying OrganizationsCriteria for CA eligibility► What types of organizations mayserve as CAs?The CA relationship is limited to governmententities: State agencies, local governments,tribal governments, and other Federalagencies.► Within the interdisciplinary (ID)team, is a CA limited to participatingonly on the topics on which the BLMhas acknowledged its jurisdiction bylaw or special expertise, as reflectedin the MOU?A CA is entitled to collaborate as part of anRMP or EIS ID team in those areas for whichthe MOU acknowledges the CA’s jurisdictionby law or special expertise. A CA’s formalinvolvement on other issues occurs at thediscretion of the BLM’s AO. In practical terms,the scope and nature of a CA’s participationis a matter for negotiation that takes intoaccount the CA’s policy concerns, the staff andresources it can reasonably contribute to theeffort, the schedule, and other constraints.► What discretion does the BLM haveto determine the scope of a CA’sspecial expertise?The criterion of special expertise emphasizesthe relevant capabilities or knowledge that aCA may contribute to the planning and NEPAprocess. Managers are required to offerCA status to potentially eligible governmententities, including tribes, when preparing orrevising an RMP or preparing an EIS. It isthe AO’s responsibility, however, to determinewhich entities possess special expertiserelative to a proposed plan or project and thenature of their expertise, subject to reviewby the State Director. The claimed expertiseshould be demonstrated (not merely asserted),and it should be relevant to the decisions to bemade.40 CFR 1508.26 (CEQ)Special expertise means statutoryresponsibility, agency mission, or relatedprogram experience.► How is expertise demonstrated?In most cases, a government entity’s expertiseis demonstrated through staff capabilities andan appropriate program focus. For example,a local government that routinely conductstransportation planning and road maintenancemay be assumed to have special expertise onthese topics whether the work is carried out bypermanent staff and/or contractors. There aremany small governments that cannot afford tokeep full- or part-time staff for every resourcearea and consequently rely on consultantsfor help. A government entity without regularprogrammatic responsibilities for a givenresource area, however, cannot establishspecial expertise for the CA relationship byhiring a consultant or specialist in that area.Note: Some expertise is based on informalrather than technical knowledge. (See thediscussion of knowledge of local “custom andculture” by tribal and local government offi cialsbelow.)Section 4. Cooperating Agency Relationships: Frequently Asked Questions21

BLM • A Desk Guide to Cooperating Agency Relationships and Coordination with Intergovernmental Partners • 201222► What are some considerationsin determining whether expertiseis relevant?Relevance in this context means not only thatthe topic of the expertise has importance forthe plan or project, but that the governmententity claiming the expertise can speak toforeseeable effects on the people, property,or resources for which it has responsibility.For example, one county requested CAstatus on the basis of special expertise inair quality modeling. While air quality was arelevant issue and the county had programresponsibility and technical skills on this topic,the county was so distant from the project areathat it would not be infl uenced by any projectgeneratedair quality impacts. For this reasonthe county’s expertise was not relevant tothe project, and its request for CA status wasdenied.► Is knowledge of local “customand culture” a sufficient basis forincluding local governments as CAsunder the special expertise criterion?Yes. Leaders of local governments arepresumed to possess special expertiseconcerning the history, institutions, and socialand economic conditions of their jurisdictions.This knowledge is often relevant to assessingbaseline conditions and potential effects ofplanning alternatives.► How should the criterion of specialexpertise be applied to tribes?Because American Indian tribes have culturallydistinctive uses and understandings of landand resources, a tribe’s special expertise maybe wide-ranging. Examples include the effectsof a proposed planning decision on tribalemployment and income, the need for accessto ceremonial places, and the medicinalvalue of certain plant species. Sharing tribalknowledge of “custom and culture” throughthe CA role may create special challenges inmanaging information appropriately, as publicdisclosure of certain tribal information may beinappropriate.Guidelines for Conducting TribalConsultation, BLM Manual Handbook,H-8120-1, Sec. IV(E)Native Americans may be reluctant toshare sensitive information regardingresource locations and values with agencyoffi cials. This is partly because agencieshave been hindered, until recently, fromeffectively protecting Native Americancultural information from public disclosureunder the Freedom of Information Act.Federal agencies► What discretion do Federalagencies have when requested toserve as CAs?A Federal agency eligible on the basis ofjurisdiction by law must serve as a CA whenso requested. A Federal agency eligible on thebasis of special expertise may choose whetheror not to serve as a CA when so requested. AState, local, or tribal entity eligible on eitherbasis may choose whether or not to serve as aCA when so requested.40 CFR 1501.6 (CEQ)Upon request of the lead agency, any otherFederal agency which has jurisdictionby law shall be a cooperating agency. Inaddition any other Federal agency whichhas special expertise with respect to anyenvironmental issue, which should beaddressed in the statement may be acooperating agency upon request of thelead agency. An agency may request thelead agency to designate it a cooperatingagency [emphasis added].► What should the BLM do if aFederal agency with jurisdiction bylaw refuses/declines an invitation tobe a CA?It is important to document the request anddenial of the request in writing and include itas part of the project fi le. A copy of the denialletter should also be forwarded immediatelyto the Washington Offi ce Division of DecisionSupport, Planning and NEPA and submitted aspart of the BLM’s annual CA data call. While

a formal CA agreement may not be reachedbetween the parties in some instances, thereare other informal methods of engagementthat may be pursued. The goal is to worktogether to the extent practicable to developanalysis acceptable to the lead agency andany agency(ies) with jurisdiction by law.State agencies► Can more than one State agencybe granted CA status for a given RMPor EIS?Yes. Because multiple State agencies mayhave special expertise or jurisdiction by law,there may be instances where more thanone State agency assumes CA status. Whenworking with multiple State agencies, it isdesirable to have one entity (for example, theGovernor’s offi ce) coordinate all commentsand analyses from State CAs to ensure theBLM benefi ts from a consistent perspective.This working arrangement should be describedas part of the MOU.Jack Morrow Hills Final CoordinatedActivity Plan–Final EISChapter 5, Sec. 5.1.2, July 2004 (GreenRiver RMP Amendment)The Wyoming Offi ce of FederalLand Policy represents the State ofWyoming, with the following agenciesdesignated as members: 1. WyomingState Geological Survey, 2. WyomingGame & Fish Commission, 3. WyomingDEQ [Department of EnvironmentalQuality]–Water, 4. Wyoming Oil and GasCommission ... [includes 16 agencies].Local governments► What is a “local government” forpurposes of CA requirements?A local government is defi ned in BLMplanning regulations as a general purposeunit of government with resourcemanagement authority or a politicalsubdivision of a State. Counties (boroughs inAlaska) and incorporated cities clearly qualify.Special-purpose districts (such as conservationdistricts) will qualify if State law defi nes themas political subdivisions.43 CFR 1601.0-5(h) (BLM)Local government means any politicalsubdivision of the State and any generalpurpose unit of local government withresource planning, resource management,zoning, or land use regulation authority.Wyoming Statutes 16-4-201(a)(iv) (2004)“Political subdivision” means every county,city and county, city, incorporated andunincorporated town, school district andspecial district within the state.Tribal governments► Does inviting a tribe’s participationas a CA satisfy the BLM’s obligationto consult on a government-togovernmentbasis regarding land useplanning or other actions?No. Consultation is particularly importantin the BLM’s government-to-governmentrelationship with tribes. Once formalconsultation has been initiated, tribal offi cialsmay decide to use the CA role as a convenientway to communicate their views or contributetheir expertise. However, this is at the tribe’srequest, not the BLM’s.Executive Order 13175: Consultationand Coordination with Indian TribalGovernmentsOur Nation, under the law of the UnitedStates, in accordance with treaties,statutes, Executive Orders, and judicialdecisions, has recognized the right ofIndian tribes to self-government. Asdomestic dependent nations, Indian tribesexercise inherent sovereign powers overtheir members and territory. The UnitedStates continues to work with Indian tribeson a government-to-government basis toaddress issues concerning Indian tribalself-government, tribal trust resources, andIndian tribal treaty and other rights. (E.O.13175, Section 2(b), November 6, 2000.)Section 4. Cooperating Agency Relationships: Frequently Asked Questions23

BLM • A Desk Guide to Cooperating Agency Relationships and Coordination with Intergovernmental Partners • 2012► Must a native group be federallyrecognized to be eligible to serve asa CA?Yes. Only government entities can becooperating agencies. Under Federal law,only federally recognized tribes qualify asgovernments (25 U.S.C. 479a).While Federal agencies must consider theinterests of members of the public in general,the agencies’ offi cial interactions with tribes,including consultation, are distinguished byunique legal relationships. The sovereignstatus of Indian tribes and special provisionsof their law set Native Americans apart fromall other U.S. populations and defi ne a speciallevel of Federal agency responsibilities.► Do reservation lands need to beaffected for a tribe to serve as a CA?No. The CEQ’s NEPA regulations allowtribes to serve as CAs “when the effects [ofa proposed action] are on a reservation” (40CFR 1508.5). (In its guidance, the CEQ hassupported extending CA status to federallyrecognized Alaska Native villages and tribeswhen the proposed action would affecttribal interests.) In contrast, both DOI NEPAregulations and BLM planning regulationsuse the same eligibility criteria for tribes as forFederal, State, and local government entities:jurisdiction by law or special expertise. Someareas with large native populations, notablyAlaska, lack reservations almost entirely.In practice, tribes may have aboriginal orhistorical ties to lands at a considerabledistance from contemporary centers of tribalsettlement.Guidelines for Conducting TribalConsultation, BLM Manual Handbook,H-8120-1, Sec. V(B)Tribes and groups with historical ties to thelands in question, including those that areno longer locally resident, should be giventhe same opportunity as resident tribesand groups to identify…their issues andconcerns regarding the public lands.Intergovernmental organizations► May an intergovernmentalorganization serve as a CA?No. Many regional intergovernmentalassociations exist to provide technicalassistance or other services to membergovernments. The terminology varies: theRogue Valley Council of Governments, theUintah Basin Association of Governments,and the Genesee–Finger Lakes RegionalPlanning Council, are all intergovernmentalassociations. These organizations arenot themselves units of government. Anintergovernmental association may not,therefore, serve as a CA. Some regionalgovernment bodies, such as regional planningauthorities, are defi ned as political subdivisionsin State law and could therefore qualify asCAs.New Hampshire Revised Statutes, Title3, 36:49-aRegional planning commissions arepolitical subdivisions of the state. However,regional planning commissions haveonly that power and authority expresslyprovided for in [New Hampshire RevisedStatutes] 36.► May an intergovernmentalorganization represent a CA in theBLM’s planning process?Yes. An intergovernmental organization mayrepresent one or more CAs, provided thatall agencies to be represented are membersof that organization and all have formallyauthorized it to act on their behalf. Suchauthorizations should be identifi ed in the MOU.Please be aware that such representationwill likely preclude the use of the UnfundedMandates Reform Act exemption to FACA (seeFACA compliance below for more information).24

The Establishment ofWorking RelationshipsConsensus and collaboration inthe CA relationship► Does a CA relationship require theBLM and the cooperators to makedecisions by consensus?No. Consensus may not always be achievableor consistent with the BLM’s legal obligationsor policy decisions. However, the DOI’sNEPA regulations at 43 CFR 46.110(c)require that the Responsible Offi cial must,whenever practicable, use a consensus-basedmanagement approach to the NEPA process.Consensus-based Management43 CFR 46.110(a)Consensus-based managementincorporates direct community involvementin consideration of DOI bureau activitiessubject to NEPA analyses, from initialscoping to implementation of the bureaudecision. It seeks to achieve agreementfrom diverse interests on the goals of,purposes of, and needs for bureau plansand activities, as well as the methodsanticipated to carry out those plansand activities. . . . Consensus-basedmanagement involves outreach to persons,organizations, or communities that may beinterested in, or affected by, a proposedaction, with an assurance that theirinput will be given consideration by theResponsible Offi cial in selecting a courseof action.43 CFR 46.110(b)In incorporating consensus-basedmanagement in the NEPA process, thebureaus should consider any consensusbasedalternative(s) put forth by thoseparticipating persons, organizations orcommunities who may be interested in oraffected by the proposed action. Whilethere is no guarantee that any particularconsensus-based alternative will beconsidered to be a reasonable alternativeor be identifi ed as the bureau’s preferredalternative, the bureaus must be able toshow that the reasonable consensusbasedalternative, if any, is refl ected inthe evaluation of the proposed action anddiscussed in the fi nal decision. To beselected for implementation, a consensusbasedalternative must be fully consistentwith NEPA, the CEQ regulations, andall applicable statutory and regulatoryprovisions, as well as Departmental andbureau written policies and guidance.43 CFR 46.110(e)If the Responsible Offi cial determinesthat the consensus-based alternative,if any, is not the preferred alternative,he or she must state the reasons forthis determination in the environmentaldocument (43 CFR 46.110(d)). Whenpracticing consensus-based managementin the NEPA process, bureaus mustcomply with all applicable laws, includingany applicable provisions of the FederalAdvisory Committee Act (FACA).Collaboration mandates methods, notoutcomes. It brings diverse parties togetherto seek broadly acceptable solutions to (whatare usually) complex problems. It does notguarantee the parties will achieve consensus,and the BLM remains the fi nal decisionmakeron matters within its jurisdiction.► How does the involvement of CAsaffect the role of the BLM’s AO in thedevelopment of an RMP or EIS?CA involvement makes the AO’s leadership ofthe land use planning process essential. Inguiding planning efforts, field managers arechallenged to reconcile bureau-wide policyobjectives with the needs and values of local,regional, and national constituencies. Tobe successful, the fi eld manager must becommitted to collaborative problem solving.Section 4. Cooperating Agency Relationships: Frequently Asked Questions25

BLM • A Desk Guide to Cooperating Agency Relationships and Coordination with Intergovernmental Partners • 201226► In working collaboratively withCAs on a plan, should the AO limit therange of issues and solutions to beconsidered?Since a key reason to involve other unitsof government is to benefi t from theirdistinctive perspectives and expertise,innovative approaches should be encouraged.Nonetheless, collaboration increases theneed to establish practical parameters forthe planning process. As the representativeof the lead agency, the AO is responsible forclarifying for CAs the general goals of theRMP. The goals include, where appropriate,the range of potential land use allocationsas consistent with statutory and regulatoryrequirements. Such limits are best establishedthrough clear planning criteria and a welldevelopedstatement of purpose and need.► Does the potential CA partneralso have a say in determining theobjectives and ground rules of the CArelationship?Yes, the MOU establishing the CA relationshipshould refl ect the views of all signatories.► What if the parties cannot agree onthe terms of an MOU?The AO should make a good faith effort tonegotiate the terms of an MOU with thepotential CA partner, consistent with applicablestatutes, regulations, and this Guide. If thiseffort is unsuccessful, the CA relationship hasnot been established.► Is it appropriate to use a thirdpartyfacilitator to help CAs and BLMstaff collaborate when preparing anRMP or EIS?Yes. CAs and BLM staff may differ signifi cantlynot only in their policy orientations but also intheir knowledge, skills, style of interaction, andexperience with NEPA and the BLM planningprocess. An effective facilitator may helpthe parties negotiate the MOU, focus effortsproductively, and resolve disagreements asthey arise. CAs should participate in theselection of a facilitator. However, using afacilitator does not alter the decisionmakingresponsibilities of the BLM or CAs.► What should the BLM andCAs do if they cannot agree onsubstantive elements of an RMP orEIS—for example, the designationof alternatives or the analysis ofeffects?Where the BLM and one or more CAs disagreeon substantive elements of an RMP or EIS andthese disagreements cannot be resolved, theBLM should include a summary of the CAs’views in the draft and fi nal documents.CA relationships and schedules► Is it appropriate to extenda planning or EIS schedule toaccommodate the needs of CAs?Normally, no. The preferences of CAsregarding the pace and direction ofcollaborative efforts do not supersede the needto adhere to established schedules. Thoseschedules should be included in the MOUsestablishing CA relationships. Wheneverpossible, the AO and CA representativesshould develop a mutually agreeable planningor EIS schedule while negotiating theirMOUs. It is important to discuss with CAswhat acceptable timeframes are for meetings,requests for information, and requests forreviews. Appropriate timelines should beincorporated into the MOU and adheredto throughout the process to the extentpracticable by all parties.► If effective collaboration with CAswould be compromised by adheringto an established planning or EISschedule, what are some solutions?AOs and their CA partners have a number ofoptions, including:• Vary the level of a CA’s involvement. BothCEQ and BLM regulations make it clear

that the CAs may negotiate a level ofinvolvement consistent with their availablestaffi ng and resources. The CAs mayvary the time and resources they commitby determining which meetings to attend,whether to offer data or analyses (or both),and at what stage of document preparationto comment.• Seek ways to reorganize the planning orEIS schedule for greater effi ciency, withoutmodifying the deadline for completion.• Improve the effi ciency of collaborationamong the CAs and BLM staff. Theinvolvement of an effective facilitator mayimprove the speed and focus of CA andBLM staff interaction.• Where none of these approaches isfeasible, the Washington Offi ce mayconsider a change in the planningschedule, or the Responsible Offi cial maychange the schedule for completion of aNEPA document.40 CFR 1501.6(c) (CEQ)A cooperating agency may in responseto a lead agency’s request for assistancein preparing the environmental impactstatement ... reply that other programcommitments preclude any involvementor the degree of involvement requestedin the action that is the subject of theenvironmental impact statement. A copy ofthis reply shall be submitted to the Council[on Environmental Quality].43 CFR 1601.0-5(e) (BLM)Cooperating agencies will participate in thevarious steps of BLM’s planning processas feasible, given the constraints of theirresources and expertise.CA roles in preparingRMPs and EISs► May the CAs use their expertise toprepare (rather than merely reviewand comment on) sections of an RMPor EIS or the technical analyses onwhich either is based?Yes, where appropriate, when the CApossesses expertise and resources tocomplete the task in a timely manner, the BLMmay agree to include the CA’s analysis aspart of an RMP or EIS. Work developed bythe CA becomes the BLM’s work, however,and the BLM is responsible for all contentwithin the planning or NEPA document and thesupporting materials, which must be includedin the administrative record.40 CFR 1501.6(a) (CEQ)The lead agency shall…[u]se theenvironmental analysis and proposals ofcooperating agencies with jurisdiction bylaw or special expertise, to the maximumextent possible consistent with itsresponsibility as lead agency.► May a CA participate in the reviewof protests to a plan?No. Protest resolution is an internal reviewprocess conducted by the BLM WashingtonOffi ce, to determine if in preparing a planapplicable laws, regulations, and policies werefollowed. However, a CA that has providedinformation relevant to an issue raised in aprotest may be asked for clarifi cation.► What is the role of a CA once theRecord of Decision (ROD) is signed?While formal CA status ends once the RODis signed, CA expertise may be valuable inimplementing plans and projects, as wellas in monitoring outcomes and assistingwith enforcement. Both the BLM andlocal communities may benefi t from anongoing relationship. In addition, after theestablishment of a new or revised RMP, CArelationships may be formed around the NEPASection 4. Cooperating Agency Relationships: Frequently Asked Questions27

BLM • A Desk Guide to Cooperating Agency Relationships and Coordination with Intergovernmental Partners • 201228processes for subsequent implementationactivities.CAs and multistate projects► What are some tips for dealing withCAs on multistate projects?The project manager should take responsibilityfor drafting key documents, such as lettersof invitation and the MOU, to ensure thatall agencies and governments receive aconsistent message about the nature of theproject and their opportunity for signing on asa CA. Correspondence to potential CAs isusually best issued by the appropriate stateoffi ce over the State Director’s signature.Managing the administrative record can beparticularly challenging on multistate projects.The project manager should ensure thatprocedures are in place for maintaining acomplete administrative record, includingcorrespondence with potential and actual CAs.► How does the potential role of aCA differ when participating in an EISfor a multistate project as comparedwith participation in a localized planor project?The CA role involves a signifi cant commitmentof time and resources. Local governmentsmay not fi nd it advantageous to participate ascooperators in large projects that encompassissues not specifi c to their interests. Theinterest of local governments in a multistateproject such as an electric transmissionline, for example, may be limited to a fewmiles of the right-of-way that affects theirjurisdiction, but may not include discussionsabout endangered species in a distant State.This type of concern may be addressed byspeaking with project staff or the local fi eldmanager in a meeting specifi cally called toaddress these issues, rather than requestingCA status.The creation of MOUs► Is a single MOU or are multiple,separate MOUs preferable for largeprojects involving many cooperators?While a single MOU signed by multipleCAs may be a very effi cient approachto establishing CA relationships, it doeshave limitations. If a single MOU is to beeffective, CAs must have similar roles andresponsibilities that can be adequatelydescribed in the single agreement, and allparties must be willing to sign jointly. In someinstances, CAs may have unique or specifi ccircumstances that would be better describedin individual MOUs. Some CAs may also beunwilling to sign a joint MOU with other CAs.► Are variations in the BLM’s ModelMOU acceptable?Yes, in fact adapting the Model MOU isencouraged. CAs should be fully engagedin the drafting of an MOU. The BLM’s ModelMOU is intended to be used only as a guide.The BLM’s Model MOU outlines certainessential elements that should be includedin all MOUs as a basis for an effective CArelationship. The BLM and CAs should worktogether to ensure that the agreed on MOUrefl ects their unique working relationship andthe tasks at hand.► Are there other uses for MOUsbesides establishing CArelationships?Yes. The BLM has used MOUs for manypurposes. For example, MOUs havedescribed the relationship between the BLMand other Federal, State, local, or tribal entitieson land use plan implementation. SuchMOUs outline roles, priorities, and timelinesfor actions needed to implement land use plandecisions and to monitor the effectiveness ofthose actions at meeting established goalsand objectives. In a few instances, MOUshave also described the coordination betweenthe BLM and other units of government asprovided under FLPMA for the BLM’s land

use planning process. These MOUs focuson defi ning a coordination framework that isacceptable to both parties.Informal alternatives to the CArelationship► Are there ways to engage agenciesand governments other than throughformal CA relationships?Sometimes agencies and governments areunwilling to enter into formal CA agreementsdue to concerns about confl ict of interest,capacity/workload issues, or lack ofunderstanding. When those situations arise,there are many ways to engage potentialpartners in close working relationshipswithout their becoming a formal cooperator.For example, the AO may maintain informalcommunication on key issues, relevantinformation, and the partners’ preferredoutcomes.► How should the BLM treatgovernment partners that wish to beclosely involved in a plan or projectassessment and that are eligible forCA status, but that are unwilling tosign an MOU?By DOI regulation, an MOU must be used toestablish the CA relationship in the case ofnon-Federal agencies, and this agreementmust include a commitment to maintain theconfi dentiality of documents and deliberationsduring the period before the bureau’s publicrelease of any NEPA document, includingdrafts to the extent permitted by law (43 CFR46.225(d)). As noted above, when otheragencies or local governments are unwilling tosign an MOU, the AO may maintain informalcommunication on key issues, relevantinformation, and the partners’ preferredoutcomes. In nearly all cases, however, itis inappropriate to provide the same level ofinvolvement in a plan or project analysis foran entity unwilling to formalize its participationas provided to formal CAs. For example,the MOU should specify how the parties willcontrol the dissemination of predecisionaldocuments, whether prepared by the BLMor one of the CAs. The MOU is intended toprotect the interests of all parties and providesa set of mutually agreeable procedures guidingthe collaboration.The role of a joint lead agency► Under what circumstances shoulda Federal, State, local, or tribalgovernment entity be invited to serveas a joint lead agency, as opposed toparticipating as a CA?The DOI NEPA regulations at 43 CFR 46.220provide guidance on establishing joint leadagency relationships. In most cases, theResponsible Offi cial should designate oneFederal agency as the lead, with the remainingFederal, State, local, and tribal governmentsassuming roles as CAs. In this manner, theother Federal, State, local, and tribal entitiesmay work to ensure that the NEPA documentwill meet their needs for adoption andapplication to their related decision(s).In some cases, a non-Federal agency(including a tribal government) must complywith State or local requirements that arecomparable to the NEPA requirements. Inthese cases, the Responsible Offi cial maydesignate the non-Federal agency as ajoint lead agency. (See 40 CFR 1501.5 and1506.2 for a description of the selection oflead agencies, the settlement of lead agencydisputes, and the use of joint lead agencies.)In some cases, the Responsible Offi cial mayestablish a joint lead relationship amongseveral Federal agencies. If there is a jointlead, then one Federal agency must beidentifi ed as the agency responsible for fi lingthe environmental impact statement with theEnvironmental Protection Agency.Section 4. Cooperating Agency Relationships: Frequently Asked Questions29

BLM • A Desk Guide to Cooperating Agency Relationships and Coordination with Intergovernmental Partners • 2012Financial support for the CArelationship► Will the BLM compensate the CAsfor their participation?The CAs normally assume the costs oftheir own participation, including salary,travel, and other expenses. A fi eld offi ceshould reimburse the costs of any studiesit specifi cally requests from a CA within itsexpertise.40 CFR 1501.6(b)(5) (CEQ)Each cooperating agency shall …[n]ormally use its own funds. The leadagency shall, to the extent availablefunds permit, fund those major activitiesor analyses it requests from cooperatingagencies.► Are CAs required to fund, staff, orprepare analyses if requested?No. CAs are not required to fund, staff, orprepare analyses. CAs may elect to do so, butthe decision is theirs.Termination of the CA relationship► Under what circumstances may aCA relationship be terminated?If the BLM and one or more of its CA partnersfi nd that they cannot work together toward acommon goal and efforts at dispute resolutionhave been unsuccessful, it is appropriateto terminate the CA relationship. Factorsidentifi ed by the CEQ as suggesting theneed to consider termination include a CA’sunwillingness to accept the lead agency’skey decisions; deliberate violation of keyprocedural agreements (such as the restrictedrelease of predecisional documents); anddeliberate misrepresentation of the planningand NEPA process or its fi ndings.Factors Supporting Termination of theCA Relationshipauthority regarding the scope of theanalysis, including authority to defi nethe purpose and need for the proposedaction.• The cooperating agency is not able orwilling to provide the data and rationaleunderlying its analyses or assessment ofalternatives.• The cooperating agency releasespredecisional information (includingworking drafts) in a manner thatundermines the agreement to workcooperatively before publishing draft orfi nal analyses.• The cooperating agency consistentlymisrepresents the process or thefi ndings presented in the analysis anddocumentation.This list of factors is not exhaustive.(Adapted from: Council on EnvironmentalQuality, Memorandum for Heads of FederalAgencies: Cooperating Agencies inImplementing the Procedural Requirementsof the National Environmental Policy Act,Attachment 1 (2002))The MOU should include provisions fortermination, as well as other ground rules,such as procedures for dispute resolution.► Is a disagreement aboutsubstantive matters that is raisedin the planning or NEPA process avalid basis for terminating the CArelationship?No. While the BLM remains the decisionmakerfor matters within its jurisdiction, the CAsare not required to concur on all fi ndings;for example, the effects anticipated froma particular planning alternative. Workingthrough disagreements within the planning orNEPA team often results in stronger, betterjustifi ed fi ndings and decisions.30• The cooperating agency cannot acceptthe lead agency’s fi nal decisionmaking

Other Requirementsand ChallengesMeeting coordination andconsistency requirements► What is the scope of the BLM’scoordination responsibilities indeveloping and revising RMPs?The BLM has a responsibility to coordinatewith other government units. To the extentpracticable, the BLM will seek to maximizeconsistency with the plans and policies ofother government entities. This responsibilityapplies whether or not a CA relationship hasbeen established.FLPMA, 43 U.S.C. 1712(c) (BLM)In the development and revision of landuse plans, the Secretary shall…(9) to the extent consistent with thelaws governing the administration of thepublic lands, coordinate the land useinventory, planning, and managementactivities of or for such lands with the landuse planning and management programsof other Federal departments and agenciesand of the States and local governmentswithin which the lands are located…and ofor for Indian tribes by, among other things,considering the policies of approved Stateand tribal land resource managementprograms. In implementing this directive,the Secretary shall, to the extent he fi ndspractical, keep apprised of State, local,and tribal land use plans; assure thatconsideration is given to those State, local,and tribal plans that are germane in thedevelopment of land use plans for publiclands; assist in resolving, to the extentpractical, inconsistencies between Federaland non-Federal Government plans,and shall provide for meaningful publicinvolvement of State and local governmentoffi cials, both elected and appointed, in thedevelopment of land use programs, landuse regulations, and land use decisions forpublic lands, including early public noticeof proposed decisions which may have asignifi cant impact on non-Federal lands.43 CFR 1610.3-1 (BLM)Coordination of planning efforts.(a) In addition to the public involvementprescribed by §1610.2, the followingcoordination is to be accomplished withother Federal agencies, state and localgovernments, and federally recognizedIndian tribes....(1) Keep apprised of non-Bureau ofLand Management plans;(2) Assure that BLM considers thoseplans that are germane in the developmentof resource management plans for publiclands;(3) Assist in resolving, to the extentpracticable, inconsistencies betweenFederal and non-Federal governmentplans;(4) Provide for meaningful publicinvolvement of other Federal agencies,State and local government offi cials,both elected and appointed, andFederally recognized Indian tribes, in thedevelopment of resource managementplans ... and(5) Where possible and appropriate,develop resource management planscollaboratively with cooperating agencies.► Is there a “coordinating agencystatus” designation?No. There is no such designation as“coordinating agency status.”► Is an MOU required between alocal government and the BLM todefine coordination?No. While there are a few examples wherethe BLM has used MOUs for this purpose, anMOU is not required. However, a frameworkis needed to defi ne the coordination and howit will occur. An MOU may be a useful tool toestablish these terms. Such an MOU shouldbe negotiated and agreed on by both parties.Section 4. Cooperating Agency Relationships: Frequently Asked Questions31

BLM • A Desk Guide to Cooperating Agency Relationships and Coordination with Intergovernmental Partners • 201232► Can the BLM meet its coordinationresponsibilities through a CArelationship?The BLM has a duty to coordinate even ifa formal CA relationship is not established.In accordance with FLPMA, the BLM’scoordination responsibilities includemaximizing consistency with the plans andpolicies of other government entities andproviding for meaningful public involvementof other Federal, State, local, and tribalgovernment offi cials in the development ofland use decisions (see above). The CArelationship provides an excellent opportunityto meet, and exceed, these coordinationresponsibilities under FLPMA. The CArelationship goes beyond coordination byfacilitating a close collaboration in sponsoringpublic involvement, reviewing resource data,formulating alternatives, analyzing potentialimpacts, and sharing internal draft documents.The BLM encourages the establishment of aCA relationship if this type of collaboration isexpected.43 CFR 46.155 (DOI)Consultation, coordination, andcooperation with other agencies.The Responsible Offi cial must wheneverpossible consult, coordinate, andcooperate with relevant State, local, andtribal governments and other bureausand Federal agencies concerning theenvironmental effects of any Federal actionwithin the jurisdictions or related to theinterests of these entities.43 CFR 1610.3-1 (BLM)Coordination of planning efforts.(b) When developing or revisingresource management plans, BLM StateDirectors and Field Managers will inviteeligible Federal agencies, state and localgovernments, and federally recognizedIndian tribes to participate as cooperatingagencies.► Does coordination underFLPMA require the BLM to sharepredecisional documents?No. FLPMA does not require the sharingof predecisional documents as part of acoordination-based relationship. However,during the planning process, a key element ofthe cooperating agency relationship includesBLM sharing of predecisional documents withcooperators. Absent extraneous factors suchas protection of proprietary or contractualinformation or ensuring compliance with Statepublic records or public meetings requirements(“sunshine laws”), predecisional documentscan be shared with cooperating agencies inaccordance with the terms of the MOU thatdirects the activities within the relationship.Sharing of predecisional documents may occuras part of the BLM’s coordination activitiesat the discretion of the AO. However, if it isdeemed critical to the coordination process,sharing of predecisional documents shouldbe guided by a detailed written agreement orMOU between the parties. Such an agreementor MOU should specify that predecisionaldocuments will remain confi dential to theextent allowed by law.► To what extent is the BLMobligated to follow local plans andpolicies?By regulation, the BLM has an obligationto keep apprised of non-BLM plans; assureconsideration is given to those plans thatare germane to the development of theBLM RMPs; assist in resolving, to the extentpracticable, inconsistencies between Federaland non-Federal plans; provide for meaningfulpublic involvement of other Federal agencies,State, local, and tribal government offi cialsin the development of the BLM’s RMPs; andwhere possible and appropriate, developthe BLM’s RMPs collaboratively with CAs.Furthermore, the BLM’s RMPs must beconsistent with offi cially approved or adoptedresource-related plans, and the policies andprograms contained therein, of other Federal,State, local, and tribal governments, so longas those plans and policies/programs are also

consistent with the purposes, policies, andprograms of Federal laws and regulations.43 CFR 1610.3-2 (BLM)Consistency requirements.(a) Guidance and resourcemanagement plans and amendments …shall be consistent with offi cially approvedor adopted resource related plans, andthe policies and programs containedtherein, of other Federal agencies, Stateand local governments, and Indian tribes,so long as the guidance and resourcemanagement plans are also consistent withthe purposes, policies, and programs ofFederal laws and regulations applicable topublic lands.For example, a county’s capital improvementplan might identify a parcel of BLM landfor acquisition to build a fi re station or acommunity center. Under the Recreationand Public Purposes Act, such a transfer ofland could be consistent with Federal law. Inrevising its RMP, the local fi eld offi ce wouldneed to consider this request, weighed againstother relevant management objectives,such as the need to protect critical habitatfor threatened or endangered species or tominimize confl icts with existing uses, such asa nearby shooting range already permitted bythe BLM.Recreation and Public Purposes Act, 43U.S.C. 869 (a)The Secretary of the Interior ... may ...dispose of any public lands to a State,Territory, county, municipality, or otherState, Territorial, or Federal instrumentalityor political subdivision for any publicpurposes, or to a nonprofi t corporation ornonprofi t association for any recreationalor any public purpose consistent with itsarticles of incorporation or other creatingauthority.► When inconsistencies between aproposed action and a local plan orpolicy cannot be resolved, shouldthey be acknowledged in the RMPor EIS?Yes. The CEQ regulations require thatinconsistencies between the proposed actionand other Federal, State, local, or tribal landuse plans and policies be documented in theEIS.40 CFR 1502.16 (CEQ)[The environmental consequences sectionof the EIS] shall include discussions of...(c) Possible confl icts between theproposed action and the objectives ofFederal, regional, State, and local (and inthe case of a reservation, Indian tribe) landuse plans, policies and controls for thearea concerned.40 CFR 1506.2 (CEQ)(d) To better integrate environmentalimpact statements into state and localplanning processes, statements shalldiscuss any inconsistency of a proposedaction with any approved state or localplan or laws (whether or not federallysanctioned). Where an inconsistencyexists, the statement should describe theextent to which the agency would reconcileits proposed action with the plan or law.► What if a State or local plan isinconsistent with a Federal lawor policy?In such cases, the BLM does not have anobligation to seek consistency. For example,in preparing RMPs the BLM is requiredto designate and protect areas of criticalenvironmental concern (ACECs). The BLMcould not honor a request from a countygovernment that only ACECs consistent withthe county’s general plan be designated inthe RMP, if this would prevent the BLM fromcomplying with its statutory obligation.Section 4. Cooperating Agency Relationships: Frequently Asked QuestionsFLPMA, 43 U.S.C. 1712(c) (BLM)In the development and revision of landuse plans, the Secretary shall …33

BLM • A Desk Guide to Cooperating Agency Relationships and Coordination with Intergovernmental Partners • 201234(3) give priority to the designation andprotection of areas of critical environmentalconcern.Information sharing► May the BLM share predecisionalplanning documents with the CAs?Yes. Unless constrained by other factors, suchas a State public records requirement or theneed to protect the confi dentiality of proprietaryor contractual information, predecisionaldocuments should be freely shared withthe CAs. If the AO does not intend to makepredecisional documents publicly available,the MOU establishing the CA relationshipshould specify that such documents will remainconfi dential to the extent allowed by law.► Are documents provided by CAs orto CAs subject to disclosure underthe Freedom of Information Act(FOIA, 5 U.S.C. 552)?It depends on the nature and content of thedocument. FOIA includes a provision thatallows an agency to exempt from releasedocuments involving “inter-agency or intraagencymemorandums or letters which wouldnot be available by law to a party other thanan agency in litigation with the agency.” (FOIAexemption 5, 5 U.S.C. 552(b)(5)). A leadFederal agency could assert this exemptionto protect from disclosure those documentsprepared by cooperating or joint lead agenciesthat contributed to the development of anRMP or EIS. Such documents may satisfyboth requirements of FOIA exemption 5: theyare predecisional and they are part of thelead agency’s deliberative process. AlthoughFOIA exemption 5 may be applicable, in manyinstances documents that meet this exemptionare released. In response to a FOIA request,the BLM should review each document thatresponds to the request under FOIA and anyapplicable FOIA policies and guidance todetermine whether release is appropriate.Note that the release of a document bya CA may be considered a waiver of thelead Federal agency’s deliberative processprivilege, potentially precluding withholdingdocuments under FOIA exemption 5. TheAO should consult with the FOIA offi cer or theDepartment’s Office of the Solicitor if there arequestions about whether releasing a sensitivedocument would waive applicable privilegesand subject the document to disclosure underFOIA.► Are there exceptions to FOIAexemption 5?Yes. Communications from a CA will notqualify as exempt from release under FOIAexemption 5 where that agency is advancing acompetitive position that would be detrimentalto another party, which will almost always bethe case here.Limitations on FOIA Exemption 5In some circumstances, [FOIA exemption5] may also apply to documents generatedoutside of an agency. Documents preparedby outside consultants at the requestof the agency and recommendations oradvice from Congress or the States can beprotected if those documents played a rolein the agency’s deliberative process andthe outside parties are not advocating theirown interests in seeking a Governmentbenefi t at the expense of others. Thismay include Indian tribes under limitedcircumstances. However, the bureaushould conclude that documents generatedoutside of the Federal Government meetthe “intra- or inter-agency” thresholdrequirement only after consulting withits designated FOIA attorney [emphasisadded]. (U.S. Department of the Interior,Freedom of Information Act Handbook, 383DM 15, Sec. 5.7(A)(2), 2004.)► How should the BLM work witha CA whose actions are governedby a State open records(“sunshine”) requirement?The BLM can successfully enter and hassuccessfully entered into CA relationshipswith partners in states that have open records(“sunshine”) requirements. Such requirements

vary from State to State. The AO and the CAmust decide on the best ways to work togetherand describe that approach in the MOUestablishing the CA relationship. Keepingpredecisional material from public view ifpermitted under the law may encourage candiddiscussion among all members of the planningor project team, including CA representatives.FACA compliance► Are meetings between theBLM staff and CAs subject to therequirements of the FederalAdvisory Committee Act(FACA, 5 U.S.C. App. 2)?As a general matter many meetings betweenBLM staff and CAs are exempt from FACApursuant to the Unfunded Mandates ReformAct. This intergovernmental exemption toFACA applies to meetings between Federaloffi cials and elected State, local, or tribalgovernment offi cials “or their designatedemployees with authority to act on their behalf”acting in their offi cial capacity (2 U.S.C.1534(b)). The criteria below must be metfor the intergovernmental exemption to beapplicable.Unfunded Mandates Reform Act, 2U.S.C. 1534(b)The Federal Advisory CommitteeAct (5 U.S.C. App.) shall not apply toactions in support of intergovernmentalcommunications where—(1) meetings are held exclusivelybetween Federal offi cials and electedoffi cers of State, local, and tribalgovernments (or their designatedemployees with authority to act on theirbehalf) acting in their offi cial capacities;and(2) such meetings are solely forthe purposes of exchanging views,information, or advice relating to themanagement or implementation ofFederal programs established pursuantto public law that explicitly or inherentlyshare intergovernmental responsibilitiesor administration.Further, even if the requirements of theUnfunded Mandates Reform Act are notmet, FACA will not apply to the group if thesole purpose of the meeting is to “exchangefacts or information” (41 CFR 102-3.40(f)).Additionally, FACA will not apply if a groupmeeting occurs with a Federal offi cial whereadvice or recommendations are sought fromthe attendees on an individual basis and notfrom the group as a whole (41 CFR 102-3.40(e)). These FACA considerations areparticularly important at key decision pointsin a planning or project assessment process,such as the designation of alternativesfor analysis or the selection of a preferredalternative.The BLM’s Collaborative StakeholderEngagement and Appropriate DisputeResolution Program has developed guidanceon FACA, which is available online at http://www.blm.gov/style/medialib/blm/wo/Planning_and_Renewable_Resources/adr_confl ict_prevention.Par.24269.File.dat/facaguide.► May a CA be represented by acontractor instead of an official oremployee of the CA?Yes, but only if the appropriate relationshipbetween the CA and the contractor isestablished. Meetings in which a CA isrepresented by a contractor who is not anoffi cial or employee of the CA with authorityto act on behalf of the CA acting in its offi cialcapacity are generally not covered by theintergovernmental FACA exemption (2 U.S.C.1534(b)). In some situations, State law maytreat the contractor as an employee, and theintergovernmental exception to FACA mayapply. See the question on FACA above formore guidance.It is important to emphasize that the CArelationship is intended to facilitate theexchange of views and expertise betweenBLM personnel and other governmentoffi cials and staff. The BLM recognizes thatlimited local government staff and potentiallyheavy time demands of the CA role maymake it necessary in some instances todesignate contractors to participate in someSection 4. Cooperating Agency Relationships: Frequently Asked Questions35

BLM • A Desk Guide to Cooperating Agency Relationships and Coordination with Intergovernmental Partners • 201236interdisciplinary team or work group meetings.The use of contractors should be the exceptionrather than the rule and must be undertakenconsistent with the requirements of FACA.CA meetings► Should CA meetings be opened orclosed to the public?Decisions about opening or closing CAmeetings to the public and the level of publicparticipation at CA meetings are within theAO’s discretion. Opening CA meetings to thepublic is consistent with the general directionof the BLM’s public involvement policy,refl ected, for example, in the BLM’s publicationCollaborative Stakeholder Engagement andAppropriate Dispute Resolution (2009). Insupport of these goals, it is recommendedthat the option of opening CA meetings to thepublic receive serious consideration. OpeningCA meetings to the public does not mean thatthe public must be allowed to participate in thediscussions. The public’s role at CA meetingsmay be limited to that of observer.There may also be good reason for closingsome or all CA meetings to the public. Closedmeetings may support a deliberative processwhere CAs explore and evaluate ideas andoptions. In making the decision to open orclose CA meetings to the public, any applicableFederal or State open meeting (“sunshine”)laws should be considered.If FACA applies, all meetings should be heldconsistent with the requirements of FACA.► Is it acceptable for the leadagency to hold meetings with somecooperators but not others?The lead agency should limit meetings thatinvolve some cooperators but not others onsubstantive topics to the extent practicable.While it may not always be possible to meetwith all cooperators at the same time or inthe same location, the lead agency shouldseek input from all CAs on substantive issues,such as changing the preferred alternative orproposing new special designations.Protests and appeals► Does participation as a CA preventthat agency from protesting orappealing the final decision?No. A CA may protest a fi nal land use planningdecision as long as it meets the requirementsof BLM protest procedures. Similarly, a CAmay appeal a decision as long as it meetsthe requirements for appeal under applicablelaws. By becoming a CA, a governmententity does not forfeit any rights otherwiseavailable to it, including the right to protest aland use planning decision or to fi le an appealon implementation actions or project leveldecisions.43 CFR 1610.5-2(a) (BLM)Protest procedures.Any person who participated in theplanning process and has an interestwhich is or may be adversely affected bythe approval or amendment of a resourcemanagement plan may protest suchapproval or amendment. A protest mayraise only those issues that were submittedfor the record during the planning process.Procedures for protest and appeal ofimplementation actions and project leveldecisions are explained in 43 CFR Part 4,Subpart B, 4.21 and Subpart E. Any specialprovisions regarding the application of thegeneral procedures for protests and appealsare explained in the CFRs for the specifi cprogram that applies to the decision.The BLM’s role as a CA► If requested, must the BLMparticipate as a CA?If another agency asks the BLM to be a CA inthe preparation of a NEPA document for anaction in which the BLM has jurisdiction by law,the BLM must accept (40 CFR 1501.6). If onthe other hand an agency asks the BLM to bea CA in the preparation of a NEPA document inwhich the BLM has special expertise, the BLMmay elect to be a CA.

Unfortunately, requests for the BLM to be aCA are not always made in a timely manner.In some instances, the BLM has receivedrequests to be a CA after the development ofan administrative draft of a NEPA document.In these cases, the potential effectivenessof engaging in a CA relationship shouldbe evaluated, and alternative strategiesfor working together and meeting therequirements of NEPA may need to beconsidered.► What factors should go into theBLM’s decision whether or not tobecome a CA?In deciding whether to become a CA, theBLM should consider any BLM decisionsto be made and any BLM actions that areseparate from, but connected to, the leadagency’s proposal. Consideration shouldbe given to the level of BLM expertise withrespect to reasonable alternatives or anysignifi cant environmental, social, or economicimpacts associated with a proposed action.Consideration should also be given to whatresources the BLM has to commit to theprocess and document preparation.• Expanding the scope of a NEPA analysis toconsider connected and cumulative actionsof all CAs into a single document improvesoverall interagency coordination.• Agencies working cooperatively helpthe public to participate effectively andeffi ciently, with fewer meetings to attendand fewer letters to write. Participation ofmultiple agencies in a single NEPA processmay help the public better understand theentire scope of a proposal, rather thanlearning a piece of it now and anotherpiece later.• The BLM may provide suffi cient inputso that the NEPA analysis specifi callyaddresses the action that the agency mustconsider before making its decision. Thishelps to avoid the struggle of adaptinganother agency’s documentation to fi t theBLM’s proposed action.• The BLM may benefi t from a single NEPAanalysis that simultaneously considersactions separate from, but connected to,the lead agency proposal.Section 4. Cooperating Agency Relationships: Frequently Asked Questions► What are the benefits to the BLM ofparticipating as a CA?Participation as a CA in the preparation ofan EIS or EA provides the BLM with manybenefi ts (as described below) and shouldreceive serious consideration.• The BLM may adopt the EIS withoutrecirculating the document when, after anindependent review of the analysis, theagency concludes that its comments andsuggestions have been satisfi ed (40 CFR1506.3(c)).• The BLM, and the lead agency, maysave staff time and dollars through suchcooperation, as compared with eachagency preparing its own document.• The BLM may provide suffi cient input sothat the NEPA analysis document meets allDOI and BLM requirements or standards.► What are BLM’s roles and responsibilitiesas a cooperator? Where/howshould the BLM capture those rolesand responsibilities in writing?As a CA, the BLM should collaborate to thefullest extent possible concerning those issuesrelating to its jurisdiction and special expertise.This may include, but is not limited to, helpingto identify issues to be addressed; arrangingfor the collection and/or assembly of necessaryresource, environmental, social, economic,and institutional data; analyzing data;developing alternatives; evaluating alternativesand estimating the effects of implementingeach alternative; and carrying out any othertask necessary for the development of theenvironmental analysis and documentation.The BLM is strongly encouraged to enter intoan interagency MOU with the lead agency, onethat formally acknowledges their respective37

► What should the BLM do if itdisagrees with the lead agency’sselection of a preferred alternativeor disagrees with the scope of theissues or impacts analyzed?Consensus may not always be achievable onkey elements of a NEPA analysis. The CArelationship brings diverse parties togetherto seek broadly acceptable solutions to whatare usually complex problems. It does notimply that the parties will achieve consensus.The BLM should provide its views and inputthrough the CA relationship as described in theMOU.It is important to keep in mind that engagingin a CA relationship neither augments nordiminishes the BLM’s jurisdiction or authority.Even when participating as a CA, the BLMremains the fi nal decisionmaker on any andall matters within its jurisdiction. In addition,by becoming a CA, an agency does not forfeitthe right to comment, protest, or appeal theanalysis or decision advanced by the leadagency.Regarding the scope of the NEPA analysis,the BLM will have to determine independentlyif the NEPA analysis in which it cooperatedis appropriate to cover any proposed actionsand decisions that the BLM wants or needsto make. If it deems the analysis suffi cient,the BLM will need to adopt the lead agency’sNEPA document (see above). If it determinesthat the analysis is not suffi cient, the BLM willhave to initiate new or supplemental NEPAanalysis to support the Bureau’s proposedaction and decision.► To what extent does the leadagency’s NEPA document needto analyze impacts toBLM-administered lands?The scope of the NEPA analysis should fullyconsider connected and cumulative actionsthat may take place on BLM-administeredlands.BLM Manual Handbook, H-1790-1,Sec. 6.5.2.1Connected actions are those actionsthat are “closely related” and “should bediscussed” in the same NEPA document….Actions are connected if they automaticallytrigger other actions that may require anEIS; cannot or will not proceed unlessother actions are taken previously orsimultaneously; or if the actions areinterdependent parts of a larger actionand depend upon the larger action fortheir justifi cation…. Connected actionsare limited to actions that are currentlyproposed (ripe for decision). Actions thatare not yet proposed are not connectedactions, but may need to be analyzedin cumulative effects analysis if they arereasonably foreseeable.BLM Manual Handbook, H-1790-1,Sec. 6.5.2.2Cumulative actions are proposed actionswhich potentially have a cumulativelysignifi cant impact together with otherproposed actions and “should bediscussed” in the same NEPA document.► How does the BLM determine if aNEPA analysis provides a sufficientbasis for its decision? When shouldthe BLM pursue a separate EIS orprepare a supplemental EIS?Before making a decision based on anotheragency’s NEPA document, the BLM mustdetermine that the NEPA document hasadequately analyzed the BLM’s proposedaction. The BLM must determine if theproposed action is a feature of or essentiallysimilar to an alternative analyzed in theNEPA document. The BLM must consider ifthe proposed action is located in the sameanalysis area. The BLM must also determine ifthe direct, indirect, and cumulative effects thatwould result from implementation of the BLM’sproposed action are covered or are similar(both quantitatively and qualitatively) to thoseanalyzed in the NEPA document.Section 4. Cooperating Agency Relationships: Frequently Asked QuestionsActive participation as a CA may affordsuffi cient input so that the NEPA document39

BLM • A Desk Guide to Cooperating Agency Relationships and Coordination with Intergovernmental Partners • 2012contains an appropriate level of analysis tosupport the BLM’s decision. If the analysisis not suffi cient to support the BLM’sproposed action, additional NEPA analysiswill be required. In these cases, tiering andincorporation by reference should be used tothe extent practicable to avoid paperwork andredundant analysis.► When should the BLM choose to bea joint lead agency rather than a CA?The BLM should consider being a joint leadagency when it and another agency haveapproximately equal pieces of a proposalunder consideration. An MOU must be signedby both agencies serving as joint leads, clearlydefi ning the roles and responsibilities of each.Only one agency must be identifi ed as theagency fi ling the EIS with the EnvironmentalProtection Agency.40

Section 4. Cooperating Agency Relationships: Frequently Asked Questions41

Working effectively in the CArelationship requires BLMand CA staff to understand therelevant organization andpolicies of their partners.42

Section 5Resources and TrainingWorking effectively in the CA relationshiprequires BLM and CA staff to understandthe relevant organization and policies oftheir partners. Each can benefi t from thelessons learned in other CA relationships (forexample, lessons gained from working withinthe constraints of tight planning schedules, orfrom resolving a disagreement over methodsof impact analysis). The CAs will be moreeffective participants when armed with asound grasp of planning and NEPA conceptsand procedures. DOI regulations direct thebureaus, including the BLM, to provide, wherepracticable, any appropriate community-basedtraining to reduce costs, prevent delays, andfacilitate and promote effi ciency in the NEPAprocess (43 CFR 46.200(c)).Here are some sources of information andtraining that can help—ResourcesThe BLM’s website on CA status provides linksto land use planning and NEPA regulations,BLM handbooks, a Model MOU, and otherinformation useful to BLM staff and their CAcolleagues. You can fi nd that informationat: http://www.blm.gov/wo/st/en/info/nepa/cooperating_agencies.html.For those without Internet access, keydocuments helpful for cooperators areavailable from any BLM state offi ce or fi eldoffi ce. These documents include the following:• Council on Environmental Quality (CEQ)NEPA Regulations (40 CFR parts 1500–1508)• Council on Environmental Quality’s FortyMost Asked Questions Concerning CEQ’sNEPA Regulations (46 FR 18026, 1981,questions 14a–14d)• BLM Planning Regulations (43 CFR 1600)• BLM Land Use Planning Handbook(Section I)• BLM NEPA Handbook (Chapter 9 and 12)• DOI NEPA Regulations (43 CFR Part 46)TrainingPlanning- and NEPA-related TrainingThe BLM’s National Training Center (NTC)provides in-person and online courses onplanning and NEPA concepts and procedures,collaboration, and alternative disputeresolution. The in-person course, Kick-startYour RMP (1610-10), and all of the onlinecourses (such as Planning Nuts and Bolts[1610-09], NEPA Concepts [1620-17], and theNEPA Analysis Process for the BLM [1620-02])are open to Federal, State, local, and tribalgovernment offi cials and staff. Many of theonline courses and other resources may befound through the NTC’s Knowledge ResourceCenter (www.ntc.blm.gov/krc).CONTACT: The BLM’s National TrainingCenter (http://www.ntc.blm.gov, 602-906-5536) for further information or a copy of theplanning- and NEPA-related courses and otheronline resources.Section 5. Resources and Training43

BLM • A Desk Guide to Cooperating Agency Relationships and Coordination with Intergovernmental Partners • 2012BLM Cooperating Agency TrainingThe BLM’s Washington Offi ce provides trainingon CAs’ roles and responsibilities in theplanning and NEPA processes. By request,the training is provided in two formats:• 1- to 2-hour workshop overviews forinternal and external audiences• 1- to 2-day training sessions, offeredin various locations for BLM staff andcooperatorsCONTACT: The BLM’s CommunicationsDirectorate (http://www.blm.gov/wo/st/en/info/directory.html, 202-208-6913) for furtherinformation.Economic Strategy WorkshopsThese 1-day workshops bring togethercommunity leaders and BLM staff to exploreregional social and economic conditions,trends, and opportunities relevant to theBLM’s planning process and communitydevelopment goals. The BLM’s Land UsePlanning Handbook requires that at least onesuch workshop be conducted at the beginningof each RMP/EIS (Appendix D).CONTACT: The BLM’s Washington Offi ceDivision of Decision Support, Planning andNEPA (http://www.blm.gov/wo/st/en/prog/planning.html, 202-912-7215).Collaboration and AppropriateDispute Resolution (ADR) TrainingThe BLM’s Collaborative StakeholderEngagement and Appropriate DisputeResolution Program and the NTC providein-person and online training on collaborativestakeholder engagement and ADR for BLMemployees and managers. Many of the inpersonclasses and all of the online coursesand resources are open to Federal, State,local, and tribal government offi cials and staff.Collaborative stakeholder engagementand ADR encompass a broad spectrum of“upstream” and “downstream” processesfor preventing, managing, and resolvingdisputes outside the conventional arenas ofthe courts, the legislature, or administrativechannels. Upstream collaborative stakeholderengagement processes are designed toprevent a confl ict or dispute from arisingor to manage confl ict at an early stage.Downstream ADR processes involve managingand resolving an existing confl ict or dispute,often by use of a third-party neutral.The acronym “ADR” traditionally has beenused to stand for “alternative disputeresolution.” The substitution of “appropriate”in more recent literature addresses variousdifferences in connotation, and, in the BLM,refl ects Bureau involvement in a broaderspectrum of confl ict prevention, confl ictmanagement, and confl ict resolution processesthan are included in the traditional defi nitionof ADR. “Appropriate dispute resolution”includes the traditional “alternative disputeresolution” processes.CONTACT: The BLM’s CollaborativeStakeholder Engagement and AppropriateDispute Resolution Program (http://www.blm.gov/adr, 202-912-7215) or the BLM’s NationalTraining Center (http://www.ntc.blm.gov,602-906-5536).44

BLM/WO/AE-11/008+1780Bureau of Land ManagementDivision of Decision Support, Planning and NEPA20 M Street, SEWashington, DC 20003Editing, design, and production services provided bythe BLM National Operations Center,Information and Publishing Services Section.