Congress often grants rulemaking authority to federal agencies to implement statutory programs. The rules and regulations issued pursuant to this authority carry the force and effect of law and can have substantial implications for policy implementation.
The Bureau of Land Management (BLM) has used that authority to propose a draft Public Lands Rule that would require BLM to manage its lands for ecosystem resilience (i.e., to promote the use of conservation in land use management decisions). BLM develops, through public engagement, land use management plans for all of the lands it manages (which BLM calls Resource Management Plans or RMPs) which serve as land management blueprints.
In general, BLM relies on the presence of healthy landscapes and resilient ecosystems to fulfill its “multiple use and sustained yield” mission. In order to ensure the BLM has healthy landscapes and resilient ecosystem in the future, the BLM must promote the use of conservation in management decisions. BLM has identified two primary ways to promote conservation in land use decision-making:
- Protection of “intact landscapes”: an intact landscape is defined as an un-fragmented ecosystem that is free of local conditions that could permanently or significantly disrupt, impair, or degrade the landscape’s structure or ecosystem resilience, and that is large enough to maintain native biological diversity, including viable populations of wide-ranging species. Intact landscapes have high conservation value, provide critical ecosystem functions, and support ecosystem resilience; and
- Application of land health standards: land health standards consist of properly functioning watersheds and ecological processes, good water quality, and restored and maintained wildlife habitats.
The proposed Rule would require the BLM to do the following when it revises a RMP:
- Identify intact landscapes that would be protected;
- Determine which, if any, public land tracts would be put to a conservation use;
- Track impacts to intact landscapes (to be stored in a national database);
- Consider land health standards regardless of the program area; and
- Review the land health standards and guidelines for all lands and programs at least every five years.
The proposed BLM Rule would also update and expand eligibility criteria for Areas of Critical Environmental Concern (ACECs). ACECs are BLM designations that highlight areas where special management attention is needed to protect important historical, cultural, and scenic values, or fish and wildlife or other natural resources. ACECs can also be designated to protect human life and safety from natural hazards. ACECs can only be designated during a BLM land-use planning process. The draft Rule would also require BLM to make the following changes to their existing policies related to ACECs:
- Identify lands for ACEC designation as part of all of their land use planning processes;
- Allow members of the public to submit ACEC nominations outside of land use planning processes, which may result in interim management being implemented to protect values until a planning process can be begun; and
- Include in planning documents at least one alternative that analyzes in detail all proposed ACECs.
The BLM Rule would strengthen the protection and durability of ACEC designations by requiring BLM to find that an ACEC designation is no longer warranted before it could eliminate an existing ACEC designation. Currently, the BLM can propose to eliminate an ACEC designation without any supporting data or reason(s). The proposed Rule allows an ACEC designation to be removed only when:
- The State BLM Director makes a finding that special management is not needed because another legally enforceable mechanism provides an equal or greater level of protection; or
- The State Director finds that the resources, values, systems, processes, or natural hazards that were the reason(s) for the ACEC designation are no longer present, cannot be recovered, or have recovered to the point where special management is no longer necessary.
- The foregoing must be supported by data or documented changes on the ground.
The proposed Rule emphasizes restoration on BLM lands by:
- Requiring that every land use planning process include a plan to restore degraded lands; and
- Requiring BLM to identify landscapes that are in need of restoration at least every five years.
It would also encourage the BLM to issue conservation leases for restoration or mitigation purposes on its land and would prohibit BLM from authorizing any other uses of those leased lands that would be inconsistent with the authorized conservation use (subject to valid, existing rights). These leases would be similar to the way oil companies buy leases to drill and ranchers pay to graze cattle on BLM lands. Conservation leases would help industries such as oil and gas, renewables or ranching to mitigate (or offset) the impacts of their development. The leases would also be available to tribal nations and conservation organization to do restoration projects. We believe these leases can be a useful tool for the BLM to promote mitigation and restoration on the land.
While the draft Rule is an important and momentous step forward and can assist the administration in meeting its America the Beautiful (30×30) goals, BLM could and should strengthen it prior to issuing a final Rule. In particular, the Rule should:
- Strengthen the Area of Critical Environmental Concern section to increase the protection and durability of that designation by:
- Creating a duty for BLM to solicit from Tribes ACEC nominations of traditional homelands and clarify that BLM should seek co-stewardship arrangements for these areas;
- Clarifying that BLM must designate as an Area of Critical Environmental Concern any area that requires special management, so long as it possesses the requisite values or resources;
- Creating minimum management standards to ensure there is a threshold level of management for protection of the resources and values for which the ACEC is designated; and
- Requiring BLM to consider ACEC nominations outside of the planning process for interim management.
- Address the importance of conserving the wilderness resource as a key component of achieving conservation and landscape health, by requiring complete and current inventories of lands with wilderness characteristics (LWC), determinations around how to manage those lands, and protective management requirements for LWC;
- Strengthen language on the important role of habitat connectivity and wildlife corridors by requiring assessments of habitat connectivity, identification of wildlife corridors, and management of those corridors to support wildlife movement;
- Continue to explore opportunities for tribal cultural site protection and co-stewardship by consulting with Tribes to further develop the regulatory language and ensure it fully advances opportunities for co-stewardship, incorporation of Indigenous Knowledge, respect for Tribal sovereignty and treaty rights and protection of Tribal cultural sites;
- Strengthen language on climate resilience, including addressing the need to mitigate greenhouse gas emissions; and
Provide for the establishment of old growth forest emphasis areas, which would be managed to protect and restore old growth conditions, as well as prohibit cutting of legacy trees more than 150 years old, including those outside old growth emphasis areas (with exceptions for emergencies or Tribal cultural uses).