On April 3, 2023, the Bureau of Land Management (“BLM”) published a proposed rule in the Federal Register that introduces a policy change in how the BLM will approach conservation activities on the land it manages. Specifically, the proposed rule would clarify that conservation is a “use” on par with any of the other land uses the BLM is required to prioritize under the Federal Land Policy and Management Act (“FLPMA”), establish a conservation leasing program that would allow for community groups to preserve federal land, and emphasize the important of a FLPMA program that requires BLM to designate some public lands as areas of critical environmental concern (“ACECs”).
Background: FLPMA & the BLM
The BLM was formed in 1946 by combining two existing agencies, the Grazing Service and the General Land Office, into one. Currently, the BLM manages 245 million acres of public land, more than any other federal agency. Most of the land managed by the BLM is located in twelve Western states, with roughly half of the total acreage of BLM-managed land located in Alaska and Nevada.
The BLM administers public land according to FLPMA, which was passed by Congress in 1976. FLPMA directs the BLM to manage public land according to the principles of multiple use and sustained yield, which requires public lands to be managed in order to sustain a variety of uses over time. 43 U.S.C. § 1701(a)(7). More specifically, FLPMA defines “multiple use” as “the management of the public lands and their various resource values so that they are utilized in the combination that will best meet the present and future needs of the American people[.]” 43 U.S.C. § 1702(c). The definition also includes some examples of the types of uses that public lands should be managed for, including “recreation, range, timber, minerals, watershed, wildlife and fish, and natural, scenic, scientific and historical values[.]” 43 U.S.C. § 1702(c). In turn, FLPMA defines “sustained yield” as “the achievement and maintenance in perpetuity of a high-level annual or regular periodic output of the various renewable resources of the public lands consistent with multiple use.” 43 U.S.C. § 1702(h). In other words, FLPMA directs BLM to manage public lands for a variety of resource uses, including the conservation of habitat and wildlife, with the goal of being able to continue those uses well into the future.
To help achieve the goals of multiple use, sustained yield, FLPMA directs the BLM to develop land use plans, referred to as resource management plans (“RMPs”), that detail how certain areas of public land will be used or managed. 43 U.S.C. § 1712. In drafting an RMP, BLM will typically consider a variety of factors, including “present and potential uses” of the land covered by the RMP, and “the relative scarcity of the values involved.” 43 U.S.C. § 1712(c). BLM is also directed to rely on “the inventory of the public lands, their resources, and other values,” and to “weigh long-term benefits to the public against short-term benefits” when making decision on resource use. 43 U.S.C. § 1712(c). The final draft of an RMP will generally establish whether an area is better suited for limited or restricted use, the allowable resource uses for the area covered by the RMP, any goals or objectives related to the condition of existing resources that BLM would like to attain, and any general management practices needed to achieve those goals. 43 C.F.R. § 1601.0-5(n). Because RMPs are drafting according to principles of multiple use, sustained yield, they will often authorize commercial, recreational, and conservation activities under one RMP. For example, an RMP could allow for livestock grazing, outdoor recreation such as fishing or camping, and include conservation measures for endangered species.
Along with crafting RMPs, FLPMA also directs BLM to “take any action necessary to prevent unnecessary or undue degradation of the lands.” 43 U.S.C. § 1732(b). One of the ways that BLM fulfills this requirement is by identifying some public lands as ACECs. Under FLPMA, an ACEC is defined as an area “within public lands where special management attention is required […] to protect and prevent irreparable damage to important historic, cultural, or scenic values, fish and wildlife resources or other natural systems or processes, or to protect life and safety from natural hazards.” 43 U.S.C. § 1702(a). FLPMA directs BLM to “give priority to the designation and protection of areas of critical environmental concern” in developing RMPs. 43 U.S.C. § 1712(c). However, to date, BLM has done little to develop ACECs as a FLPMA program. The new proposal from BLM seeks to change that.
What’s in the Proposed Rule?
The newly proposed rule from BLM focuses on promoting conservation in the land use planning process. According to BLM, the proposed rule “provides a framework to protect intact landscapes, restore degraded habitat, and ensure wise decisionmaking[.]” To do so, the proposed rule clarifies that conservation is a use “on par” with other uses of the public lands under FLPMA; establishes a program of conservation leasing to promote protection and restoration on public lands; and emphasizing the important of ACECs as the primary tool for protecting intact landscapes and habitat.
To establish conservation as a use on par with any other resource use regulated under FLPMA, the proposed rule would add a section to the existing FLPMA regulations for the purpose of “promot[ing] the use of conservation to ensure ecosystem resilience.” To promote conservation as a use throughout the FLPMA planning process, the proposed regulations would “integrate the fundamentals of land health and related standards and guidelines into resource management[.]” Currently, BLM only applies its land health standards to grazing activities. The proposed rule would require BLM to apply land health standards to all the resource uses it authorizes. Such land health standards include watershed function, ecological processes, water quality, and wildlife habitat. 43 C.F.R. § 4180.1. The proposed regulations also put forward new definitions for key terms, including “conservation.” Under the proposed rule, “conservation” is defined as “maintaining resilient, functioning ecosystems by protecting or restoring natural habitats and ecological functions.” Additionally, the proposed regulations promote conservation as a use under FLPMA by requiring BLM to “manage certain landscapes to protect their intactness” through the use of conservation actions, managing lands for uses compatible with conservation, habitat restoration projects, and management actions that “maintain or mimic characteristic disturbances.”
The proposed rule would also create a new conservation leasing program administered through FLPMA. Under the proposed rule, BLM could authorize conservation leases in order to restore, enhance, or mitigate degradation of public lands. Such leases could be issued to individuals, businesses, non-governmental organizations, or Tribal governments. Conservation leases issued for the purposes of restoration or protection of public lands would be issued for a maximum term of ten years, while leases issued for mitigation would be issued “for a term commensurate with the impact it is mitigating” and would be reviewed every five years. Once a lease is issued, BLM would not be able to authorize any other uses of leased lands unless those uses are consistent with the authorized conservation use. BLM has clarified that a conservation lease would not override any other valid existing rights, such as a grazing permit. However, any uses authorized after a conservation lease is already in place will need to be compatible with the conservation use.
Finally, the proposed rule seeks to expand BLM’s existing regulations for ACECs to “better ensure” that BLM is meeting FLPMA’s command to give priority to the designation and protection of such areas. Under the proposed regulations, ACECs are identified as “the principal BLM designation for public lands where special management is required to protect important natural, cultural, and scenic resources, systems, or processes, or to protect life and safety from natural hazards.” To be designated as an ACEC, the proposed regulations clarify that an area must meet three criteria: relevance, importance, and special management attention. “Relevance” is determined by whether the area contains any resources with “significant historic, cultural, or scenic value; a fish or wildlife resource; a natural system or process; or a natural hazard potentially impacting life and safety.” “Importance” is determined by whether the resources, values, systems, processes, or hazards located in the area have “qualities of special worth, consequence, meaning, distinctiveness, or cause for concern.” To make this determination, BLM may consider factors such as national or local importance, subsistence value, or regional contribution. Finally, “special management attention” is determined by whether an area contains resources, values, systems, processes, or hazards that require special management attention. An area needs special management attention if it needs certain management prescriptions in order to “conserve, protect, and restore” relevant resources or processes, to protect life and safety from natural hazards, or if the management activities would not be prescribed if “the relevant resources, values, systems, processes, or hazards were not present.” To evaluate whether an area is in need of special management attention, the proposed rule directs BLM to consider whether managing the area in such a way will protect or increase the vulnerability of the relevant resources; the values of other resource uses in the relevant RMP; the feasibility of managing the area according to an ACEC designation; and the relationship an ACEC would have to other types of designations.
Should the proposed rule become law, it is possible that agricultural producers that operate on BLM land, particularly ranchers that rely on BLM grazing permits, may see some additional restrictions or requirements as BLM begins issuing conservation leases and designating ACECs. While BLM has noted that existing rights will not be overridden by conservation leases, it is currently unclear how those leases would impact grazing permits that are granted or reissued after a conservation lease is in place. It is also unclear how the designation of an ACEC would impact existing grazing permits, or the issuance of new ones.
The proposed rule is currently available in the Federal Register, and a public comment period will be open through June 20, 2023.
To read the text of the proposed rule and find information on how to submit a comment, click here.
To read the text of FLPMA, click here.