By Lynn Boulton
The BLM calls it the Public Lands Rule. Others call it the Conservation and Landscape Health Rule or the Healthy Lands Rule. It is exciting to see the BLM declare conservation a use and elevate conservation on a par with other uses of BLM land. While this rule, if adopted, won't change anything immediately, it does provide ways to better protection high-value conservation lands in the future.
Why a new rule?
The Federal Land Policy and Management Act (FLPMA) of 1976 states, "that management [of public lands] be on the basis of multiple use and sustained yield unless otherwise specified by law" and then goes on to say that, "the public lands be managed in a manner that will protect the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archeological values; that, where appropriate, will preserve and protect certain public lands in their natural condition; that will provide food and habitat for fish and wildlife and domestic animals; and that will provide for outdoor recreation and human occupancy and use;" The BLM Land Use Planning Handbook (H-1601-1) has guidelines on how to manage its public lands for the follow resource uses:
- Forestry
- Livestock Grazing
- Recreation and Visitor Services
- Comprehensive Trails and Travel Management
- Lands and Realty
- Coal
- Oil Shale
- Fluid Minerals: Oil and Gas, Tar Sands, and Geothermal
- Locatable Minerals
- Mineral Materials
- Non-energy Leasable Minerals
It doesn't list conservation as a resource use today. So, conservation will not even be considered when the handbook says, "Where there are competing resource uses and values in the same area, Section 103(c) of FLPMA (43 U.S.C. 1702(c)) requires that the BLM manage the public lands and their various resource values so that they are utilized in the combination that will best meet multiple use and sustained yield mandates." In the past, the BLM encouraged companies to use the land and its natural resources. The proposed new rule would add conservation to this list and let it compete with other uses as a way to fulfill the FLPMA mandate to preserve and protect some BLM land in its natural condition.
How is adding conservation to the resource uses list the fix?
The new rule encourages the BLM to protect high-value public lands through Area of Critical Environmental Concern designations (ACEC) and to allow the public to buy conservation leases.
ACECs
ACECs are not new, but the new rule would require the BLM staff to identify land that would qualify as an ACEC when they update their land management plans. It doesn't require them to create ACECs, but the hope is that there will be more ACECs as a result. If so, the BLM will protect the resources that the ACECs are created to protect. The public can nominate ACECs too under this new rule.
Conservation Leases
This rule identifies two types of conservation leases: for restoration and for compensatory mitigation. Restoration leases allow the public to restore an area for up to ten years and pay to keep other uses out while they restore it.
The other type of conservation lease that would be offered is for mitigation. The new rule says, "the BLM will generally apply a mitigation hierarchy to address impacts to public land resources, seeking to avoid, then to minimize, and then to compensate for any residual impacts." For projects that cause harm to the environment, but can't be avoided or mitigated on site, then the project proponent can buy a conservation lease to offset the loss of habitat. For example, solar farms wipe out all vegetation in its footprint and that can't be avoided. The solar company would pay for habitat restoration somewhere else as compensation.
The new rule signals a shift within the BLM. Rather than prioritizing extraction activities, protecting nature becomes a priority too; a balance of both extraction and conservation. The BLM would be required to consider protecting a subset of its lands that have high conservation values. This would include those that are high in biodiversity or climate resiliency, that are natural, intact habitats that will support wildlife including wildlife corridors, and those that have cultural resources. Illustrating the current priorities, the first policy listed in the Bishop Resource Management Plan of 1993 is "Management will be on the basis of multiple use and sustained yield [Section 1 02(a)(7)]." Fourth is, "Public lands will be managed in a manner that will protect the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archaeological values; that, where appropriate, will preserve and protect certain public lands in their natural condition; that will provide food and habitat for fish and wildlife and domestic animals; and that will provide for outdoor recreation and human occupancy and use [Section 102(a)(12)]."
Some congressmen and governors are opposing this new rule because they believe the proposed rule would protect large swaths of land and reduce the amount of land available for grazing or that it will take land off the market for oil and gas leases. However, that isn't the case. The rule explicitly states, "Conservation leases should not disturb existing authorizations, valid existing rights, or state or Tribal land use management." Those opposing the rule argue that a change this significant should follow NEPA (National Environmental Policy Act) that would include a rigorous public review. NEPA, the bane of many in the extractive industries, now want NEPA to apply!
It will take time for the proposed rule to bring back some balance in how the BLM manages its extensive land holdings. It will take years to identify lands that are natural ecosystems, biodiverse, or climate resilient, collect public input, and then update land management plans accordingly. The Bishop BLM Field Office is operating under a 1993 Land Resource Management Plan (RMP). That's a 30 year old plan. Several areas in the Eastern Sierra might qualify as ACECs and if the proposed BLM Rule passes, the ACEC designation could be used to help keep our wild and natural areas from being further exploited or disturbed. Hopefully, before a solar farm is proposed or before a company proposes gold exploration, the Bishop Resource Management Plan would be updated to identify potential ACECs. Updating an RMP is a slow process and can take years to assess the health of the land, collect public input, and to fold in the current science and Traditional Ecological Knowledge.