Bureau of Land Management Publishes Proposed Rule That May Redefine the Management of Public Lands

The Bureau of Land Management ("BLM") announced a sweeping proposed rule that would change how public lands are managed by the federal government.

On April 3, 2023, BLM published a proposed rule to promote the "conservation" of public lands, which is defined as maintaining resilient, functioning ecosystems by protecting or restoring natural habitats and ecological functions. To achieve that goal, the proposed rule would extend land health standards and guidelines—which are currently limited to federal livestock grazing allotments—to the more than 245 million acres of public lands managed by BLM. These new land health standards and guidelines will describe specific conditions that are needed for public land health, such as the presence of streambank vegetation, habitats for threatened and endangered species, and watershed management. The proposed rule directs BLM's bureau field offices to apply the existing land health standards and guidelines across all of BLM's managed lands and uses until new standards and guidelines are established.

Notably, the proposed rule clarifies that "conservation" is a separate, designated land use under the Federal Land Policy and Management Act of 1976, or FLPMA, effectively putting conservation on par with other uses, such as energy development, recreation, and grazing. The proposed rule also intends to amend existing regulations and codify specific procedures whereby BLM is able to identify and evaluate public lands so that they can be designated as "areas of critical environmental concern."

Additionally, the proposed rule would establish a framework for BLM to issue conservation leases on public lands for the purpose of pursuing ecosystem resilience through "restoration or land enhancement" or "mitigation." Under this framework, conservation leases would be time-limited and allow groups or companies to purchase conservation leases to mitigate project impacts or conduct restoration on public lands. For example, energy developers or mining companies could purchase a conservation lease to offset the environmental impacts of a project as a condition of permit approval. As part of this proposal, BLM is specifically seeking public comments on whether the rule should expressly authorize the use of conservation leases to generate carbon offset credits.  

The comment period for the proposed rule closes on June 20, 2023. Stakeholders affected by the proposed rule or interested in development on federal lands should carefully consider the implications of the proposed rule.

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