Summary
- Discusses the three primary priorities to the BLM’s proposed draft rule.
- Looks at the four major changes proposed to the existing regulatory scheme utilized by the BLM.
- Questions if the BLM has the capacity to implement the proposed changes.
Bureau of Land Management Makes Sweeping Changes to Public Lands Management in Proposed Rule
Izabela Habur via Getty Images
The Bureau of Land Management (BLM) manages 245 million acres of land and 700 million acres of subsurface mineral estates within the United States. On April 3, 2023, the BLM published a draft rule in the Federal Register proposing sweeping changes to the management of BLM lands. The proposed rule has a 75-day comment period to allow for public input before a final rule is drafted and published. The draft rule has three primary priorities: “promoting restoration, providing for balanced development, and protecting the healthy intact landscape.”
The BLM’s land management decisions are guided by the Federal Land Policy and Management Act (FLPMA) of 1976. FLPMA created the “agency’s multiple-use and sustained yield mandate to serve present and future generations.” The multiple uses, as defined under FLPMA section 103, include but are not limited to: recreation, range, timber, minerals, watershed, wildlife and fish, natural scenic, scientific, and historical values. Under FLPMA, the BLM is directed to inventory public lands and create management plans that implement the multiple-use and sustained-yield mandate. The BLM is also directed by FLPMA to promulgate regulations necessary to carry out the purposes of the Act. The regulatory authority is the authority the BLM is exercising in the promulgation of the current proposed rule.
The proposed rule includes four major changes to the existing regulatory scheme utilized by the BLM. The first is the placement of “conservation” on equal footing with the other multiple uses that BLM land is managed for by clarifying that conservation is a “use” under FLPMA. Conservation in the context of the proposed rule encompasses management of renewable resources designed to achieve desired future conditions through protection, restoration, and any other types of planning, permitting, and program decision-making. The second is authorizing the use of conservation leases to allow other individuals to dedicate BLM lands to conservation. The third alteration is a revision of the existing regulations that provided a framework for establishing Areas of Critical Environmental Concern (ACEC): the new rule prioritizes the creation and management of these areas. The fourth change expands the framework for making land health assessments to allow for informed management decisions on BLM lands: the existing regulation limits land health assessments to grazing lands only.
The clarification that “conservation” qualifies as a “use” under FLPMA is a significant alteration to the current management scheme. The BLM can only manage lands for the multiple uses defined in FLPMA unless the land has been specifically dedicated for certain management, such as wilderness areas, under FLPMA. The inclusion of conservation as a use allows the BLM to manage land for conservation purposes without a special land use designation. This provision clears the pathway to prioritize conservation and promote the protection of BLM lands for future generations.
The proposed rule also creates other pathways for conservation on BLM land using conservation leases. Conservation leases are a mechanism that would allow entities to support the protection and restoration of BLM lands. The proposed rule creates a framework to apply for and utilize a conservation lease. The length of conservation leases, as stated in the rule’s executive summary, would be for a maximum of ten years. Under the proposed rule section 6102.4, conservation leases can be issued for either restoration and land management or to mitigate the impacts of other projects. The leases can be issued to individuals, businesses, nongovernmental organizations, or tribal governments.
In addition to conservation leases, the proposed rule authorizes the creation and management of ACECs. ACECs are intended to protect areas where special management is needed for certain resources or for the protection of human health and life. Under the proposed rule section 1610.7, authorized officers are required to identify areas that are eligible for ACEC status. The rule would require officers to consider current land inventories and other special land designations during the land use planning process to identify areas on BLM land that may be eligible for ACEC status and consider the impacts of designation. As proposed, the rule includes provisions to ensure ACECs do not have their protections removed for extractive purposes: protections could only be removed if special management protection is no longer needed because equivalent or greater protections are provided through alternate means.
The proposed rule would also expand existing programs to further ensure the health of BLM lands. The proposed rule section 6103.1 extends the land health assessment and standards that were previously only used to assess grazing land health to all BLM lands. The stated goal of the extension is to provide for better management of BLM land and to promote informed decision-making to ensure that BLM lands are sustainably managed over time. The proposed rule authorizes the BLM to collect data to determine the cause of degradation in land health in order to make management decisions that will best promote the overall health of BLM lands. If the current land management plan is the reason the land is not meeting the land health standards, the proposed rule requires an authorized officer to take action to make progress toward fulfillment of the land health standards.
Department of Interior (DOI) Secretary Deb Haaland noted in a press release that our public lands are under increasing pressure and there is a need for new plans and strategies to promote smart development. The DOI noted that the rule arose in response to increasing impacts of climate change, which have created challenges for land in the western United States. Specifically, severe droughts have led to more intense wildfires that are burning millions of acres of public lands each year. In the proposed rule, the BLM mentioned that there is a rising need to ensure that there are “resilient ecosystems” that will allow these resources to be available for generations to come. Additionally, the BLM stated in a press release that the rule will help improve BLM’s collaborative work with communities, states, and tribes.
The rule is a response to the Biden administration’s proposal for this year’s semiannual agenda of rules and policies that are to be implemented throughout the year. President Biden also listed the rule as part of a policy initiative when establishing two new national monuments at the end of March. The DOI stated in a press release that the rule furthers the work begun by President Biden’s Infrastructure Law and Inflation Reduction Act by helping to identify and prioritize lands for conservation and restoration.
One question that arises with the proposed rule is whether the BLM has the capacity to implement the proposed changes. In 2021, Western Watershed Project conducted a study and reported to Politico that it found that 54 percent of grazing permit renewals issued by the BLM did not receive the appropriate environmental analysis. Western Watershed Project reported that their analysis showed that the BLM was struggling to comply with the National Environmental Policy Act and had failed to complete the land health evaluations required by the BLM regulations. The past challenges the BLM has had with remaining current on various environmental processes bring into question how the new programs will be successfully reviewed and implemented without compliance challenges.
Additionally, environmental critics of the plan, such as the Center of Biological Diversity, have reported to E&E News that BLM could have gone farther with the new rule to address the extinction crisis and urgent impacts from climate change. CBD also said that the proposed rule failed to address the underlying issues that result in degradation of public lands from uses such as grazing, fossil fuel extraction, and mining.
In 2022, the BLM took a similar approach to changes in land management in conjunction with the State of California. In California, the BLM entered into agreements to utilize lands to mitigate the environmental damage caused by renewable energy projects. The agreement functioned like the conservation leases in the current plan. The BLM first authorized these agreements in the Desert Renewable Energy Conservation Plan, which allowed the use of specific federal lands to offset environmental harm caused by renewable energy projects in order to promote renewable energy development. The successful use of the plan in California may suggest that the BLM has the capacity to implement the proposed rule.
The comment period on the proposed rule will end on June 20, 2023. In its press release regarding the publication of the proposed rule, BLM stated its intent to host five informational forums to discuss the rules in May and June 2023. After the close of the comment period, the BLM will have time to revise the proposed rule and issue a final rule for implementation. However, like many rules, it may be subject to legal challenges by those who are opposed to the changes, and it may be some time before a final rule is implemented. The issuance of a final rule will help to shape the future of land management in the United States.
Author