On June 10, 2024, the “Conservation and Landscape Health Rule” – also known as the “Public Lands Rule” – goes into effect. See 89 Fed. Reg. 40,308. This comprehensive reform of federal land management practices adopts a landscape-based, conservation-focused approach across all 245 million acres of lands managed by the Bureau of Land Management (BLM). The rule broadly defines conservation as a “use” equivalent to other uses such as energy development and grazing for purposes of the “multiple use" approach to federal land management. The energy and mining sectors, in particular, will see near-term and long-term effects arising from the adoption of this “conservation” and “landscape-based” overlay on federal lands management.

What is the purpose of BLM’s Public Lands Rule?

This rule establishes BLM’s policy to “build and maintain the resilience of ecosystems on public lands,” which BLM characterizes as necessary to achieve multiple use and sustained yield goals by ensuring that public lands can “resist and recover from disturbances like drought and wildfire” through conservation. The rule seeks to do so via “protecting the most intact, functioning landscapes,” “restoring degraded habitat and ecosystems,” and “using science as the foundation for management decisions across all [BLM] plans and programs.” Stated a bit differently, BLM says the “goal of the rule is to provide a decision support and prioritization framework for the BLM as it seeks to identify where such protection is appropriate.” With regard to protecting “intact landscapes,” the rule provides expanded avenues for designating “Areas of Critical Environmental Concern” (ACEC) where energy activity (and other productive uses) presumably would not occur.

Likewise, to promote restoration of “healthy landscapes,” the rule establishes expanded avenues for restoration and mitigation projects, including adoption of new tools for “restoration leases” and “mitigation leases.” According to BLM, these leases have both an active and passive component and are more than just a limitation on use of land. While BLM is expected to issue further guidance on how these new leasing tools might work in practice, BLM has provided a few examples of contexts where “restoration” and “mitigation” leases may be relevant, such as mitigation for solar energy projects and transmission line projects.

Additionally, the rule directs BLM officers to “adopt national land health standards across all ecosystems that…facilitate progress toward meeting land health.” This will impact oil and gas development as well as renewable energy generation by adding new procedural requirements to “guide BLM’s actions,” rather than requiring achievement of the land health standards.

How does BLM respond to the criticism that this rule is inconsistent with FLPMA’s “multiple use framework”?

Under the Federal Land Policy Management Act (FLPMA), BLM must “manage the public lands under principles of multiple use and sustained yield” and “regulate, through easements, permits, leases, licenses, published rules, or other instruments as the Secretary deems appropriate, the use, occupancy, and development of the public lands.” 43 U.S.C. 1732(a)-(b). In this rule, BLM asserts that it “has wide discretion to determine how those [FLPMA] principles [of multiple use and sustained yield] should be applied.” Many criticize the rule for elevating conservation above other productive uses of these lands. In response, BLM generally takes the view that the rule places conservation on equal footing with other uses.

How does BLM define “compensatory mitigation” under the Public Lands Rule?

BLM states that the mitigation provisions of the rule are consistent with BLM’s existing policy on mitigation (H-1794-1) and that the rule “defines ‘mitigation’ consistent with the definition provided by existing Council on Environmental Quality regulations (40 CFR 1508.1(s))…” BLM’s rule does not directly address the source of BLM’s authority to require mitigation (particularly compensatory mitigation) for impacts to public lands.

Has BLM issued guidance about this new rule?

BLM has begun to roll out a series of guidance documents and instructional materials for implementation of the Public Lands Rule. Agency fact sheets and other guidance materials are currently posted on BLM’s Public Lands Rule website, https://www.blm.gov/public-lands-rule.

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