The BLM will determine whether it is appropriate to continue to process, or to deny, a variance application based on the evaluation of an application.
The BLM has determined that, in appropriate circumstances, it can rely on the broad discretion it has under the Federal Land Policy and Management Act (FLPMA) of 1976 to deny right-of-way (ROW) applications without completing the National Environmental Policy Act (NEPA) of 1969 process. Such decisions must be made with regard for the public interest and be supported by reasoned analysis and an adequate administrative record. Decisions to deny pending applications must be assessed on a case-by-case basis. Denial of an application constitutes a “final agency action” and is therefore subject to administrative appeals to the Interior Board of Land Appeals (IBLA).
On the basis of a thorough evaluation of the information provided by an applicant and the input of Federal, State, and local government agencies, tribes, and the public, the BLM will determine whether it is appropriate to continue to process, or to deny, a ROW application submitted through the variance process. Variance evaluations will be conducted and documented at the BLM State and field office levels. To ensure a consistent application of the variance process, all ROW applications in variance areas that are determined to be appropriate for continued processing will be submitted by the BLM State Director to the BLM Washington Office for the Director's concurrence.
ROW applications in variance areas that the BLM determines to be appropriate for continued processing will generally be processed, at the applicant's expense, in compliance with NEPA and all other applicable laws, regulations, and policies, including but not limited to the Endangered Species Act (ESA) of 1973, the National Historic Preservation Act (NHPA) of 1966, and the National Park Service (NPS) Organic Act of 1916. Many of the actions taken under the variance process, however, could be incorporated into subsequent requirements such as NEPA. Proposed projects in variance areas will require consideration of alternatives and will likely result in environmental impact statement (EIS)-level NEPA documentation. Compliance with applicable laws, regulations, and policies could result in substantial changes to a project proposal or application denial.