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The “Public Lands Rule” Promotes Natural and Cultural Resource Conservation
By Brad Trumbo
On July 5th, the public comment period closed on the Bureau of Land Management’s (BLM) proposed conservation and landscape health rule, or the “Public Lands Rule,” to make conservation a “land use” equivalent to all other land use activities like recreation and mineral extraction. Implementation of the proposed rule could be a game changer for conservation.
The BLM manages more than 245 million acres of public lands (approximately one-tenth of the country), the stewardship of which is guided by the Federal Land Policy and Management Act of 1976 (FLPMA), unless otherwise provided by law. The FLPMA provides the BLM the authority to manage public lands for resource and ecosystem conservation. The Public Lands Rule would “…provide an overarching framework for multiple BLM programs to promote ecosystem resilience on public lands.”
The Public Lands Rule would do the following:
- Apply land health standards to all BLM-managed public lands and uses;
- Clarify that conservation is a “use within” the Federal Lands Policy and Management Act’s (FLPMA) multiple-use framework;
- Revise existing regulations to meet FLPMA’s requirement that BLM prioritize designating and protecting “Areas of Critical Environmental Concern;”
- Establish a framework to promote ecosystem resilience on public lands through the creation and deployment of conservation leases, which will allow third parties to engage in conservation and mitigation activities on BLM lands.
Each of the four points is important for enhancing and perpetuating ecosystem integrity on a vast proportion of public lands.
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The application of land health standards would establish a baseline condition for public lands for which to apply effects analyses for proposed land use actions. Ensuring that proposed actions like grazing, mining, and timber harvest would maintain or improve the baseline condition consistent with conservation practices as a compatible land use would result in long-term ecosystem benefits.
Updating the Department of Interior’s land management regulations to enhance the BLM’s ability to designate Areas of Critical Environmental Concern (ACEC) will better protect and perpetuate sensitive habitats and cultural resources. The benefits of protecting sensitive and scarce habitats are clear, but sensitive cultural sites are not always known or as easy to protect beyond National Parks or Monuments, for example. Concerted efforts by the BLM to gain Tribal input for the establishment of ACECs beyond routine National Environmental Policy Act requirements have the potential to protect areas of cultural significance on a much broader scale and without an act of Congress.
“Conservation leases” present a novel idea for leasing areas specifically for habitat enhancement, ecosystem restoration, and compensatory mitigation for land development actions. Conservation as a land use and conservation leases are proposed to work in concert with other approved land uses or development but have the potential to establish boundaries for resource protections and allow for on- or off-site mitigation for potential habitat damage.
The proposed Public Lands Rule as written is fairly robust, but the proposed language requires clarification.
Regarding conservation leases, the proposed language in Section 6102.4(a)(5) of the proposed Public Lands Rule aptly clarifies that “…the [conservation lease issuance] itself should not be interpreted to exclude public access to leased lands for casual use of such lands….” Plainly put, public recreation is permitted on lands under a conservation lease. However, this language requires two clarifications. The language should read “…the rule itself SHALL not be interpreted to exclude public access to leased lands for casual use of such lands….” The word “should” is dismissible and may lead to interpretations that would arbitrarily prohibit public access and recreation.
Additionally, “casual use” of public lands must be clearly defined to include appropriate low-impact recreation activities such as hiking, hunting, fishing, etcetera. Without a clear definition, interpretations of “casual use” may again arbitrarily prohibit certain types if not all public recreation on conservation leases.
To ensure the conservation lease language is appropriate for the final rule, the BLM requested The Wildlife Society (TWS) review and comment. The TWS Rangeland Wildlife Working Group led the review and provided six pages of suggested clarifications and overall support of the proposed Public Lands Rule.
For areas identified as ACECs, the proposed language would impose protections on these lands, yet the language is unclear when and how “protection” may be given to ACECs and what “protection” means. Some ACECs will be more culturally sensitive or pristine than others and should require greater restrictions on activities within those areas.
In conclusion, the proposed Public Lands Rule is a valuable effort with the potential to enhance and maintain ecosystem and cultural resource integrity in concert with other allowable land uses. The BLM will now consider the comments received and edit the proposed language where and how appropriate before publishing the final rule.
Although the public comment period has ended, all public land users should become familiar with the proposed Public Lands Rule and how it may affect public access and recreation. More information and a link to the Federal Register publication are available at Public Lands Rule | Bureau of Land Management (blm.gov).