Existing gas and oil developments near the Lorne Plateau can be seen from an EcoFlight plane near De Beg, June 25, 2018.
On April 18, the Bureau of Land Management (BLM), the federal government’s largest land manager, announced how it will fulfill its longstanding legal obligation to conserve the 245 million acres of land it regulates. Promulgated rules to explain.
This so-called “public lands rule” includes an important, if long-overdue, recognition that an agency’s “multiple-use” mission includes a conservation obligation. Of the 216,000 public comments received by BLM, more than 90% supported the new rules.
Nearly a half-century ago, in the Federal Land Policy and Management Act (FLPMA) of 1976, Congress established that BLM land management is based on the “natural, scenic, scientific, and historic values” of the land.
These values were intended to inform multi-use management and not to avoid “permanent damage to land productivity and environmental quality.” But for nearly half a century, the agency’s rules have failed to explain how the agency should achieve its protection objectives.
The BLM also establishes and maintains “Area of Critical Environmental Concern” (ACEC), a 1976 statute that explicitly directed the BLM to prioritize and protect ecological, historic, scenic, and cultural values. Nor did he take any consistent action to do so. BLM has never promulgated regulations to implement this provision.
The new public lands rules address both oversights and recognize that conservation is a multipurpose use that includes maintaining resilient and functioning ecosystems by protecting or restoring natural habitats and ecosystem functions. It makes that clear. To help promote ecosystem resilience, this rule authorizes “restoration or mitigation” leases to protect, manage, or restore natural environments, ecological communities, or cultural and historic resources. I am.
Designation of Areas of Significant Environmental Concern – Federal law requires that “irreparable damage to significant historical, cultural or scenic values, fish and wildlife resources” be prevented. . . or to protect life and safety from natural disasters” will be standardized under the new regulations. This rule requires public nomination of ACECs, establishes criteria for designation, and limits BLM’s discretion to remove designated ACECs.
Another important feature of the new rule is that the agency extends the Rangeland Health Fundamentals, developed a quarter century ago for lands covered by BLM grazing leases, to all BLM lands.
These rangeland health standards require maintenance or restoration of watershed health, ecological processes, and species habitat, as well as compliance with state water quality standards. Intact landscapes are inventoried and managed as necessary to ensure that they remain intact.
This rule extends BLM’s legal authority to manage public lands for multiple and sustainable use and the scope of the legal mandate to avoid “permanent impairment” while meeting the long-term needs of future generations. It fits well inside. To achieve sustainable yields, agencies must achieve multigenerational management “forever.”
This rule does not purport to prioritize conservation over other uses, but rather to place conservation on an “equal footing” with other uses. Existing valid public land rights for mining, grazing, and oil and gas development are not affected.
Currently, more than 60% of BLM lands are subject to grazing leases. And the overwhelming majority of that (nearly 90%) is available for oil and gas leases. For example, nearly 24 million acres are subject to existing leases, compared to more than 37 million acres protected as “national conservation lands.”
The Biden administration has approved more oil and gas leases than the Trump administration approved in its first two years. However, more than 47% of the leased land is not used by lease due to non-regulated economic reasons. The new rules offer the prospect of a more balanced agency approach to multiple uses and sustained yields.
The Public Lands Rule provides an important response to the threats posed by climate change, and the Department of the Interior recognizes that climate change will have far-reaching impacts on managed lands, waters, natural and cultural resources, and, as a result, landscape It acknowledges that it causes degradation, habitat fragmentation and biodiversity loss.
Because future environmental conditions will not mimic the past, the new rules provide BLM with tools to address an uncertain and potentially dangerous future. Although managing ecological resilience cannot eliminate the threats posed by climate change, the BLM is currently working to preserve the values that FLPMA recognized long ago as fundamental national land policy. We have a framework for preparing public lands.
Mark Squilliance is the Raphael J. Moses Professor of Natural Resources Law at the University of Colorado School of Law. Michael Blumm is a professor and founder of the Environment and Natural Resources Program at Lewis & Clark Law School. Sandy Zellmer is Professor and Director of Natural Resources and Environmental Law at the University of Montana School of Law.
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