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Bureau of Land Management Proposes Rule to Prioritize Conservation, Promote Compensatory Mitigation, and Adjust Procedures for Designating ACECs

April 3, 2023

The Federal Register, published on April 3, 2023, includes a proposed rule by the Bureau of Land Management (BLM) to change BLM’s management of public lands significantly by prioritizing conservation and ecosystem resiliency. If finalized, this proposed rule would impact all public land users, including those engaged in conventional and renewable energy development, mining operations, and grazing. BLM is accepting public comment on the proposed rule until June 20, 2023, or until 15 days after the last public meeting, which BLM has yet to announce.

The proposed rule would have two regulatory effects: revise BLM’s existing regulation related to Areas of Critical Environmental Concern (ACECs) at 43 C.F.R. § 1610.7-2 and establish new regulations at 43 C.F.R. Part 6100 titled “Ecosystem Resilience.”

Revisions to BLM’s ACEC Regulation

The Federal Land Policy and Management Act (FLPMA) defines ACECs and directs BLM to give priority to their designation and protection during the land use planning process. The proposed rule would revise BLM’s ACEC regulation at 43 C.F.R. § 1610.7-2 to provide more detail on the process for identifying and designating ACECs. Most notably, the proposed rule would:

  • Modify the definitions of “relevance” and “importance” and define the term “special management attention;”
  • Require BLM, when revising land use plans, to include an alternative that analyzes all proposed ACECs;
  • Establish criteria that limit when BLM can remove an ACEC designation through the land use planning process; and
  • Allow BLM, when areas are nominated for designation as ACECs outside of a land use planning process, to manage these areas to protect relevant and important values until BLM completes a planning process.

Ecosystem Resilience Regulations

The proposed rule would establish new regulations at 43 C.F.R. Part 6100 that apply to all BLM programs. The proposed rule is notable in multiple respects because it would:

  • Define a host of terms, most notably “unnecessary or undue degradation;”
  • Require BLM to manage for conservation;
  • Allow BLM to issue conservation leases;
  • Require that BLM manage for ecosystem resilience;
  • Formalize a framework for compensatory mitigation; and
  • Establish fundamentals of land health.

Definitions (§ 6101.4)

The proposed rule would define a host of terms for application across all of BLM’s programs. Many of these terms currently are either undefined or defined only with respect to certain BLM programs. Most notably, the proposed rule would define “unnecessary or undue degradation” as “harm to land resources or values that are not needed to accomplish use goals or is excessive or disproportionate.” The proposed rule would also define “conservation,” “mitigation,” and “protection,” among other terms.

Management for Conservation (§§ 6101.5, 6102.1 to 6102.3-2)

The proposed rule would require BLM to manage for conservation use and bases this direction on FLPMA’s mandate that BLM manages the public lands in accordance with principles of multiple use and sustained yield. The proposed rule notably would:

  • Define “conservation” as “maintaining resilient, functioning ecosystems by protecting or restoring natural habitats and ecological functions;”
  • Require BLM to consider conservation as a use on par with other uses of the public lands;
  • Require BLM, when revising resource management plans (RMPs), to identify and protect “intact landscapes,” which the proposed rule defines as “an unfragmented 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;” and
  • Prioritize and plan for landscape restoration.

Conservation Leases (§§ 6102.4 to 6102.4-2)

The proposed rule would allow BLM to issue conservation leases. Particularly, the proposed rule would:

  • Allow BLM to issue conservation leases over public lands, which would authorize either restoration of public lands or mitigation of impacts; and
  • Establish the process to obtain, terms of, and bonds for conservation leases.

Formalized Compensatory Mitigation (§ 6102.5-1)

The proposed rule would attempt to provide a process for BLM to utilize compensatory mitigation to offset impacts from land uses. Particularly, the proposed rule would:

  • Direct BLM to require mitigation “to address adverse impacts to important, scarce, or sensitive resources;”
  • Allow BLM to use third-party mitigation fund holders to collect, manage, and expend mitigation funds collected by permittees; and
  • Establish criteria for approved third-party mitigation fund holders, including state or local government agencies.

Management for Ecosystem Resilience (§ 6102.5)

The proposed rule would require BLM to manage for resilient ecosystems, which the proposed rule defines as “ecosystems that have the capacity to maintain and regain their fundamental structure, processes, and function when altered by environmental stressors such as drought, wildfire, nonnative invasive species, insects, and other disturbances.” The proposed rule notably would require BLM to:

  • Avoid authorizing uses of the public lands that would permanently impact ecosystem resilience;
  • Identify priority watersheds, landscapes, and ecosystems that require protection and restoration efforts; and
  • Develop strategies, including mitigation strategies, to protect resilient ecosystems.

Fundamentals of Land Health (Subpart 6103)

The proposed rule would impose on BLM a requirement to manage lands in accordance with the fundamentals of land health. Particularly, the proposed rule would:

  • Require that standards or guidelines developed or revised in RMPs be consistent with specified fundamentals of land health that call for maintenance of or improvements to watersheds, ecological processes, water quality, and species’ habitats;
  • Require BLM to apply existing land health standards and guidelines, including those previously established as part of BLM’s grazing program; and
  • Require BLM to review and revise land health standards and guidelines as part of its land use planning process and review them at least every five years.

Issues to Consider

The proposed rule raises multiple questions, including:

  • Can BLM protect intact landscapes while continuing to authorize principal or major uses as defined by FLPMA? What is the relationship between the protection of an intact landscape and the designation of an ACEC? When must BLM make withdrawals under FLPMA to protect intact landscapes?
  • When and how will BLM utilize compensatory mitigation? Although the proposed rule appears to allow BLM to utilize compensatory mitigation to offset impacts from land uses, the proposed rule does not provide guidance on when BLM may utilize it or whether BLM may require it.
  • How do the priority watersheds, landscapes, and ecosystems that BLM identifies for protection and restoration efforts relate to ACEC designations? Are these areas distinct from ACECs?
  • How does the proposed rule’s direction that BLM avoid authorizing uses of the public lands that permanently impact ecosystem resilience harmonize with FLPMA’s requirement that BLM manages the public lands for multiple uses?
  • Which provisions of the proposed rule can BLM implement immediately, and which provisions first require BLM to revise its RMPs? What time and resources will be required for RMP revisions?
  • Would the proposed rule require BLM to revisit land use planning efforts that required significant time and negotiation with stakeholders, such as BLM’s greater sage-grouse land use plan amendments, the California Desert Conservation Area Plan, and the Western Solar Plan?
  • Will the rule, and particularly its provision establishing conservation as a use of the public lands, if finalized, survive the inevitable legal challenge?

Users of the public lands should closely evaluate this rule and consider its impacts on existing and future land use authorizations. Please contact Katie Schroder with questions about this proposed rule.