Appendix 8 

APPENDIX 8—EXCEPTION AND WAIVER CRITERIA 

PROCEDURES FOR HANDLING REQUESTS FOR EXCEPTION 

FROM SEASONAL STIPULATIONS AND/OR CONDITIONS OF 

APPROVAL 

The Bureau of Land Management (BLM) will process requests for exception and waiver in coordination 

with the Wyoming Game and Fish Department (WGFD). A request for exception must be initiated in 

writing by the operator before the time that the work was originally proposed to conclude. The 

unpredictability of weather, animal movement and condition, etc., precludes analysis of requests related 

to wildlife far in advance of the time periods in question. Analyses of a request include review of 

potential mitigation measures and alternatives (e.g., traffic restrictions, alternative scheduling, and staged 

activity). The request is considered as a unique action and is analyzed and documented individually for 

Resource Management Plan (RMP) and National Environmental Policy Act (NEPA) compliance. 

Processing includes coordination with WGFD for seasonal wildlife-based lease stipulations or permit 

Conditions of Approval (COA). 

Exception requests will not be granted for stipulations or operating standards designed to protect 

threatened and endangered species, unless the BLM consults with the U.S. Fish and Wildlife Service 

(USFWS) and reinitiates consultation over the RMP, if appropriate. 

An exception, waiver, or modification must be based on one of two criteria. According to 43 CFR 3101.1-

4, “A stipulation included in an oil and gas lease shall be subject to modification or waiver only if the 

authorized officer determines that the factors leading to its inclusion in the lease have changed 

sufficiently to make the protection provided by the stipulation no longer justified or if the proposed 

operations would not cause unacceptable impacts.” 

An Exception is a one-time relief from the COAs applied to any surface disturbing or human disruptive 

activities, such as but not limited to, Application for Permit to Drill (APD), stipulations applied to a rightof-way (ROW), habitat treatments, and range projects. The project lead, operators, and lease holders must 

initiate requests in writing, and this documentation must be received by the BLM at least 2 weeks prior to 

the potential activity start date. The request must include the following information: 

WHY the operator or lease holder needs the exception. Please include the reason(s) why the action could 

not be completed within the original stipulation period, any evidence of why the action will not adversely 

affect the species being protected, or any other information (additional mitigation measures or 

alternatives) that will help BLM (and WGFD) in reviewing the request. 

WHO is filing the exception request. This must include the company name, the name of the contact 

person, and the address, telephone number, e-mail address (if available), and fax number of the contact 

person. 

WHAT is being requested. This must include a detailed description of the activity; the approval dates of 

the APD, sundry or ROW number, lease number, and the American Petroleum Institute (API) number. 

WHERE the activity will take place. This must include the legal description (including footage 

measurements of the well) of the activity, the location of the access roads and pipelines, and a map clearly 

depicting these areas. 

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WHEN the activity will occur. This must include the start date, end date, and time of day/night when 

activities will occur. 

Requests will be accepted by fax at (307) 367-5329 or hard copy letter (mail or hand-delivery acceptable). 

Hard copy requests should be mailed to the following address: 

Field Manager 

Bureau of Land Management 

Pinedale Field Office 

P.O. Box 768 

Pinedale, WY 82941 

ATTN: Wildlife Exception Request 

Please expect 2 weeks for processing of all requests. Following BLM review, the operator or lease holder 

will receive a response granting the request, denying the request, or delaying the action (with a 

recommendation of what needs to be completed before the request can be granted). These surveys may 

require additional surveys and field work before a recommendation can be made. These surveys must be 

coordinated and authorized by BLM biologists in advance. Please do not complete field surveys for 

exceptions before contacting the BLM. Results of surveys completed prior to direction from a BLM 

biologist may not be used or adequate in granting an exception. If there is any question whether field 

surveys will be required, contact one of the BLM biologists. 

A copy of the crucial winter range exception request must be sent to the WGFD at— 

West of Hwy 189: East of Hwy 189: 

Gary Fralick Scott Smith 

WGFD WGFD 

P.O. Box 1022 P.O. Box 850 

Thayne, WY 83127 Pinedale, WY 82941 

Exceptions will not be granted for stipulations or COAs resulting from Section 7 consultation regarding 

the Endangered Species Act with the USFWS for listed species unless a biological assessment (BA) is 

completed and re-initiation of Section 7 consultation occurs. This process, depending on the potential 

impacts and whether incidental take is involved, typically will require 3 to 6 months for completion. The 

operator or lease holder is responsible for the BA, which must be satisfactorily completed in accordance 

with the requirements of BLM. 

EXCEPTIONS TO SEASONAL RESTRICTIONS 

Activities within the planning area are managed with seasonal restrictions, no surface occupancy, or 

distance restrictions for sensitive and crucial habitats. Protective wildlife seasonal restrictions are 

consistent with statewide dates and/or distances. For example, big game crucial winter ranges are 

protected from November 15 through April 30. This restriction is intended to protect big game if weather 

or other habitat needs dictate. 

The Bureau of Land Management (BLM) can and does grant exceptions to seasonal restrictions if the 

BLM, in consultation with the WGFD, feels that granting an exception would not adversely impact the 

population being protected. Please remember that exceptions are for critical situations that may cause the 

applicant to be out of compliance with the timing stipulations attached to the COAs of their APD, ROW 

Grant, or other contract. They are NOT intended to be used to extend normal operations into the timing 

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stipulation period. The BLM uses a set of criteria when considering a request for an exception. 

Professional judgment plays a key part in the BLM’s decision on whether to grant exceptions. No clear 

formula exists. 

The following section is an example of factors considered by the BLM when determining whether a 

request for an exception to crucial big game winter range should be granted. Similar criteria and/or data 

are used when considering granting exceptions for other protected species, such as greater sage-grouse, 

elk calving areas, mountain plover, and pygmy rabbits. 

GENERAL GUIDELINES FOR TIMING STIPULATION AND 

SURFACE USE RESTRICTIONS 

Professional judgment plays a key part in a biologist’s recommendation to the BLM Field Manager, and 

there is no clear formula for arriving at these biological recommendations. Wildlife biologists will 

consider the general criteria below when evaluating an exception request. These factors will be 

considered as a whole and not individually. Please remember that animal presence/absence based on one 

site visit will not be the sole criterion for granting an exception request. 

Factors Considered 

1. Resource Concerns 

• Animal presence or absence 

• Additional or new resource concerns 

• Potential for increased wildlife accidents or poaching 

• What are the WGFD coordination and recommendations? 

2. Animal Conditions 

• Physical condition of individual animals (e.g., fat reserves) 

• Local animal population condition (animal density) 

• Potential for additive mortality 

• Likelihood of introduction or increased incidence of disease 

• Likelihood of decreased recruitment/birth rate 

3. Climate/Weather 

• Snow conditions (depth, crusting, longevity) 

• Current and historic local precipitation patterns 

• Current and historical seasonal weather patterns 

• Recent and current wind chill factors (indication of animals energy use) 

• Duration of condition 

• Short- and long-range forecasts 

4. Habitat Condition and Availability 

• Water and forage condition (availability, quality, and quantity) 

• Competition (interspecific, intraspecific) 

• Animal use of available forage 

• Suitable and ample forage immediately available and accessible 

5. Spatial Considerations 

• Migration/travel corridors 

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• Winter range, foraging, parturition or breeding 

• Topography (plains vs. mountains) 

• Topographic/geographic limitations (barriers) 

• Presence of thermal cover (e.g., protection from wind) 

• Proportion of range impacted 

• Juxtaposition and density of other activities/disturbances in the vicinity 

• Cumulative impacts 

6. Timing 

• When proposed activity would occur in the stipulation period (i.e., early or late in the stipulation 

period, length of activity, time of day, how much winter is remaining) 

• Kind and duration of potentially disruptive activity 

• Likelihood of animals habituating to the proposed activity 

• Are the factors that led to the seasonal stipulations or COA for wildlife still valid? 

• Will granting the exception cause less long-term impact to the resource than whatever short-term 

impact might occur? 

• Are there other mitigation measures or alternatives that would allow for granting the exception 

and still meet the intended objective of the stipulation/COA? 

• What is the severity of the proposed action and the potential impact? 

MODIFICATION OR WAIVER OF LEASE STIPULATIONS 

Title 43 CFR 3101.1-4 establishes procedures for granting modifications or waivers to oil and gas lease 

stipulations, as stated below: 

A stipulation included in an oil and gas lease shall be subject to modification or waiver only if the 

authorized officer determines that the factors leading to its inclusion in the lease have changed 

sufficiently to make the protection provided by the stipulation no longer justified or if proposed 

operations would not cause unacceptable impacts. If the authorized officer has determined, prior to lease 

issuance, that a stipulation involves an issue of major concern to the public, modification or waiver of the 

stipulation shall be subject to public review for at least a 30-day period. In such cases, the stipulation 

shall indicate that public review is required before modification or waiver. If subsequent to lease 

issuance the authorized officer determines that a modification or waiver of a lease term or stipulation is 

substantial, the modification or waiver shall be subject to public review for at least a 30-day period. 

The modification or waiver of an oil and gas lease stipulation implies that the sensitive resource for which 

the protective measure was considered is in some way not present in the area or in some way no longer in 

need of the protective measure. In either case, consideration of a modification or waiver of a lease 

stipulation would require environmental analysis and may result in an amendment to the land use plan. 

Terms Defined: 

• A Condition of Approval means a site-specific and enforceable requirement included in an 

approved Application for Permit to Drill (APD) or Sundry Notice that may limit or amend the 

specific actions proposed by the operator. Conditions of Approval minimize, mitigate, or prevent 

impacts to resource values or other uses of public lands. 

• A Lease Stipulation is a condition of lease issuance that provides a level of protection for other 

resource values or land uses by restricting lease operations during certain times or locations or to 

avoid unacceptable impacts, to an extent greater than standard lease terms or regulations. A 

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stipulation is an enforceable term of the lease contract, supersedes any inconsistent provisions of 

the standard lease form, and is attached to and made a part of the lease. Lease stipulations further 

implement the Bureau of Land Management’s (BLM) regulatory authority to protect resources or 

resource values. Lease stipulations are developed through the land use planning process. 

• An exception is a one-time exemption for a particular site within the leasehold; exceptions are 

determined on a case-by-case basis; the stipulation continues to apply to all other sites within the 

leasehold. An exception is a limited type of waiver. 

• A waiver is a permanent exemption from a lease stipulation. The stipulation no longer applies 

anywhere within the leasehold. 

• A modification is a change to the provisions of a lease stipulation, either temporarily or for the 

term of the lease. Depending on the specific modification, the stipulation may or may not apply to 

all sites within the leasehold to which the restrictive criteria are applied. 

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