June 5, 2023

What to know about federal conservation rulemaking

A new proposal calls for leasing public lands for conservation purposes.

The late author and environmental activist Edward Abbey is known for referring to the U.S. Bureau of Land Management as the Bureau of Livestock and Mines due to the bureau’s focus on leasing lands for extraction and grazing. But the BLM’s reputation for prioritizing extraction and grazing may be about to change. 

A new proposal could expand the leasing opportunities on federal lands to include conservation purposes. 

This change could have major implications for New Mexico, where about 13.5 million acres are managed by the BLM. Nationwide, the BLM manages more than 245 million acres, which is about a tenth of the country. 

Conservation and environmental advocates describe the BLM proposal as rebalancing the Federal Land Policy and Management Act multi-use framework to put conservation on equal footing with other uses such as oil and gas extraction.

Both opponents and proponents of the conservation leasing say that represents a dramatic change in how the federal agencies manage public lands.

A public comment period is ongoing through June 20. As of Thursday, more than 46,700 people and organizations had submitted comments on the BLM rule and nearly 30,000 people had submitted comments in a U.S. Forest Service docket asking how the agency should adapt policies to protect forest health in light of climate change. Those numbers of comments include both template letters submitted through organized letter writing campaigns and individual, unique comments.

The proposed changes come as the federal government is working to conserve 30 percent of land and water by 2030, an initiative known by the U.S. Department of the Interior as America the Beautiful.

Why is the BLM proposing this change?

The FLPMA requires federal agencies to manage public lands for multiple use and sustained yield unless the area has been set aside for specific purposes. Federal documents define sustained yield as “the achievement and maintenance in perpetuity of a high-level annual or regular periodic output of the various renewable resources of the public lands consistent with multiple use.”

Multiple uses can include mining, timber, grazing, outdoor recreation and wildlife as well as other uses.

“Public lands are increasingly degraded and fragmented,” the BLM wrote in its proposal document. “Increased disturbances such as invasive species, drought, and wildfire, and increased habitat fragmentation are all impacting the health and resilience of public lands and making it more challenging to support multiple use and the sustained yield of renewable resources. Climate change is creating new risks and exacerbating existing vulnerabilities.”

The document states that the BLM must steward public lands in a way that maintains “functioning and productive ecosystems and work to ensure their resilience” in order to address the threats.

“This proposed rule would pursue that goal through protection, restoration, or improvement of essential ecological structures and functions. The resilience of public lands will determine the BLM’s ability to effectively manage for multiple use and sustained yield over the long term,” the document states.

Who could lease the lands for conservation?

The proposed BLM rule uses the term conservation to encompass both actions to protect the landscape and restoration activities. 

The proposal would create a new tool—conservation leasing—that would allow the public, but not state or local governments, to lease public lands to restore them or to mitigate for particular actions. Tribes, nonprofit organizations, individuals and private organizations would be able to lease lands for conservation.

The proposal also establishes a process for people to apply for conservation leases and a framework for granting, terminating or suspending those leases.

For the most part, conservation leases will be issued for a maximum of ten years, though that could be extended when necessary to meet the purpose for which the lease was issued.

A conservation lease issued to provide compensatory mitigation may require a longer lease. The document states that the term would be “commensurate with the impact it is offsetting.”

What is compensatory mitigation?

When renewable energy developers build projects, they are required to avoid, minimize, restore or offset the impacts the development will have on natural resources. This is where the compensatory mitigation conservation leases could come into play. 

The Center for American Progress released a report on Thursday that shows the conservation leases would allow renewable energy to flourish.

Often, compensatory mitigation occurs on private lands even if the wind or solar project is on public lands, according to the CAP report.

If an environmental analysis required for a wind project finds a bird, like a lesser prairie chicken, could be impacted by the development, the developer could be required to offset the impact. Currently, this can be done through conservation banking in which private landowners are paid to protect the bird’s habitat.

The BLM proposal could allow public lands to be leased to provide habitat for the lesser prairie chicken to offset the impact of the wind project. These conservation leases would remain in effect for the life of the wind project.

According to the CAP report, this provides developers with more options and could save the developers money. The CAP report further states that this could help developers in areas where the majority of land is federal or tribal land, such as in northwest New Mexico.

“The BLM’s proposal will not be the best fit every time, but it provides another option for project developers, something that should mean greater efficiency, more cost savings, and faster project timelines overall,” the CAP report states.

Furthermore, the proposal would allow public lands to benefit from the mitigation projects. 

How would conservation leasing impact public land access and use?

Opponents fear that conservation leases would take precedence over other uses of the land.

However, the BLM documents state that the conservation leases “would not override valid existing rights or preclude other, subsequent authorizations so long as those subsequent authorizations are compatible with the conservation use.”

That means a conservation lease could not shut down existing oil and gas extraction, but it could prevent future oil and gas leasing in the area where a conservation lease exists.

One of the main terms referenced by opponents is Area of Critical Environmental Concern, or ACEC. Opponents say ACEC designations can be used to block access to places. They say the proposal could lead to more ACEC designations.

ACEC designation is used to protect places that have important historical, cultural and scenic values or fish, wildlife and other natural resources. The BLM says that ACECs are a tool that the agency can use to protect intact landscapes. There are more than 150 ACECs in New Mexico. 

The type of activities that can occur in an ACEC vary based on what resources are being protected.

Crow Canyon in northwest New Mexico is an example of an area that is protected due to cultural resources including rock art and Dinétah defensive sites. The designation of the Area of Critical Environmental Concern has not stopped oil and gas production from occurring in the Crow Canyon area where more than 7,000 acres have been designated as an ACEC since 1988. The nearby Simon Canyon and Simon Ruin—both located near Navajo Lake—are also designated as ACECs. Visitors to Simon Canyon can hike to the Dinétah defensive site built on a boulder overlooking the canyon. The ACEC also provides fishing and backpacking opportunities and the BLM describes it as “an alternative to the more highly developed state park sites located nearby.”

In some areas, ACECs can bring tourists. The BLM points to the Nine Mile Canyon ACEC in Utah as an example of a place where the protected area brings tourism dollars into the community. Nine Mile Canyon boasts the greatest concentration of rock art sites in the country.

Another example of an ACEC in New Mexico is the Lesser Prairie Chicken Habitat Reserve about 35 miles east of Roswell, which encompasses nearly 58,000 acres. This ACEC is intended to maintain and enhance lesser prairie chicken and dunes sagebrush lizard habitat.

What is the Forest Service looking at?

While the BLM is asking for input on a proposal to lease lands for conservation purposes, the Forest Service is seeking input on management changes in light of climate change.

The agency also wants to center Indigenous knowledge in its forest management decisions.

Today, the Forest Service harvests about a tenth of one percent of the acres within the National Forest System annually. About 86 percent of those harvests are designed to improve the health and resilience of the forest by reducing the tree density or removing plants damaged by insects or disease. The remainder of the harvests are considered final or regeneration harvests. These are followed by reforestation.

Meanwhile, insects and diseases have impacted about a quarter of the 193 million acres nationwide that the Forest Service manages over the past 15 years.

A rapidly changing environment is now driving forest loss, including wildfires.

About 80 percent of the reforestation needs in national forests are due to wildfires and the agency expects that to increase.

About four million acres of national forests need potential reforestation due to wildfires and about half of that damage occurred in 2020 and 2021, according to the Forest Service.

The Forest Service has poised several questions for the public to comment upon.

That includes the overarching question of how the agency should adapt the current policies and develop new policies aimed at conserving and managing forest and grasslands amid climate change in a way that provides ecological integrity and supports both social and economic sustainability.

The agency is also seeking comments on how it should assess, plan for and prioritize conservation and climate resilience.