Controversial BLM 3.0 Proposal Released for Public Comment

On April 3, 2023, the Bureau of Land Management (“BLM”) published a proposed rule to promote the conservation of the 245 million acres of public lands it manages.  The proposal purports to advance “BLM’s mission to manage the public lands for multiple use and sustained yield by prioritizing the health and resilience of ecosystems across those lands,” and declares that “conservation” is a separate, designated land use under the Federal Land Policy and Management Act of 1976 (“FLPMA”), on par with other uses e.g. mining, grazing, recreation, etc.”  The proposal is reminiscent of the “BLM 2.0” planning rule that BLM finalized in 2016, and Congress then revoked under the Congressional Review Act.

The proposal requires BLM to identify in its Resource Management Plans (“RMPs”) “intact landscapes” that “will be protected from activities that would permanently or significantly disrupt, impair, or degrade” their “structure or functionality,” and to identify priority watersheds, landscapes, and ecosystems that require protection and restoration efforts,  Further, BLM is directed to develop and implement strategies to protect “resilient ecosystems”; avoid authorizing uses of the public lands that permanently impair ecosystem resilience; consider a precautionary approach for resource use when the impact on ecosystem resilience is unknown or cannot be quantified; and justify decisions that may impair ecosystem resilience.

To achieve these new priorities, the proposal requires BLM to designate in its RMPs areas of important natural, cultural, and scenic resources, systems, or processes of critical environmental concerns (“ACECs”), such as areas that “contribute to ecosystem resilience” by “protecting intact landscapes and habitat connectivity,” and “special management” provisions to protect the ACECs, such as conservation, protection and restoration prescriptions.  The proposal also allows BLM to issue conservation leases for restoration or land enhancement or mitigation to third parties for 10 years (or longer if required to complete mitigation).

The proposal was quickly criticized by opponents as a surprise “overhaul” of BLM’s land management program that threatens other uses of BLM lands, including grazing and mining.  Bills have also been introduced in Congress to require BLM to withdraw the rule (H.R. 3397.S. 1435).  In the meantime, BLM has begun conducting stakeholder outreach activities (lacking during the development of the proposal), scheduling five public meetings from mid-May to early June, including virtual meetings on May 15 and June 5.  The proposal will garner hundreds if not thousands of public comments by the June 20, 2023 deadline (opponents have already requested an extension to allow more than 75 days to submit comments given the significance of the proposed rule), and if finalized, will likely end up in the courts.