U.S. Department of Interior Proposes New Conservation Framework

In April 2023, the Bureau of Land Management (BLM) published a proposed rule that would apply new “land health” standards to all BLM-managed public lands and programs. This new policy will have broad implications for federal land management. Interested parties must submit comments by June 20, 2023.

BLM manages roughly 10% of the land in the United States, more than 245 million acres. BLM’s proposal would revise regulations governing federal lands and policies to expand and reinforce the agency’s conservation efforts. Specifically, the proposed rule would apply land health standards to all BLM-managed public lands and uses, revise existing Federal Land Policy and Management Act (FLPMA) regulations to prioritize designating and protecting Areas of Critical Environmental Concern (ACECs), create a conservation lease tool, and introduce new procedural requirements to promote ecosystem resilience on public lands. In doing so, the proposal arguably would expand the express categories of land uses under FLPMA.

• Expanding and reaffirming ACECs. ACECs are areas where BLM applies special management attention to protect historic, cultural, and scenic values, fish or wildlife resources, or other natural systems or processes, or to protect human health from natural hazards. The proposed rule expands existing ACEC regulations, allowing BLM greater leverage to use this tool for ecosystem resilience. BLM will have to prepare land health assessments and evaluations to make determinations about land health conditions in order to manage public lands for conservation. As part of this process, BLM would prioritize the designation of ACECs during the planning phase.
• Creating a Conservation Lease. A conservation lease would be available to entities seeking to restore public lands or provide mitigation for a particular action. Once issued, subsequent authorizations must be compatible with the conservation use. BLM stated it would issue most conservation leases for 10-year terms, but the term can be flexible, e.g., in providing mitigation the term would be commensurate with the impact. Under the proposal, terms may be extended if necessary to serve the purpose for which the lease was originally issued.
• Reaffirming BLM’s Mitigation Hierarchy. The proposal requires mitigation, to the maximum extent possible, to address impacts on important, scarce, or sensitive resources. The proposed rule also sets rules for approving third-party mitigation fund holders.
• Elevating “Conservation” to a Designated Use. The proposed rule would require BLM to consider conservation as a use on par with existing uses under FLPMA’s “multiple use” framework. “Conservation” includes the management of renewable resources consistent with the fundamentals of land health, designed to “reach future conditions through protection, restoration, and other types of planning, permitting, and program decisionmaking.”

BLM specifically requested comments concerning the following:

• How will applying the fundamentals of land health beyond lands allocated to grazing interact with BLM’s management of nonrenewable resources such as mining, energy production, transmission, and transportation?
• Are there opportunities for the proposed rule to incorporate specific direction to conserve and improve the health and resilience of forests on BLM-managed lands, specifically to foster ecosystem resilience of old and mature forests?
• Should state and local governments be eligible for holding conservation leases?
• Should the rule constrain which lands are available for conservation leases?
• Should the rule expressly authorize using conservation leases to generate carbon offset credits?
• In what ways can BLM determine the fair market value for restoration or preservation activities?

BLM will host five information forums to discuss the details of the proposed rule, and public comments will close on June 20, 2023, or 15 days after the last public meeting. Companies and trade associations should carefully review this proposed rule and participate in the rulemaking process to ensure they can continue activities on federal lands without additional barriers.

Beveridge & Diamond’s Natural Resources and Federal Lands and Infrastructure, Project Development, and Permitting practices represent clients during project development, permitting, and related litigation on BLM-managed lands. Please contact the authors for more information on how these developments may impact your business.