THE ENERGY LANDSCAPE AHEAD: PLANNING UNDER THE BUREAU OF LAND MANAGEMENT'S PLANNING 2.0

• Jurisdiction: United States

Advanced Public Land Law - The Continuing Challenge of Managing for Multiple Use
(Jan 2017)
CHAPTER 2A
THE ENERGY LANDSCAPE AHEAD: PLANNING UNDER THE BUREAU OF LAND MANAGEMENT'S PLANNING 2.0
Nada Wolff Culver
Director and Senior Counsel, BLM Action Center, The Wilderness Society
Denver, CO
Phillip H. Hanceford
BLM Action Center, The Wilderness Society
Denver, CO

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NADA WOLFF CULVER is Senior Counsel and Director of the BLM Action Center at The Wilderness Society, providing technical advice and support to citizens and conservation groups working to protect their public lands. The Wilderness Society's mission is to protect wilderness and inspire Americans to care for our wild places. The BLM Action Center, located in Denver, Colorado, assists and encourages people to participate in land use planning processes and management decisions, including those addressing transmission, renewable energy, fossil fuel development and protection of wilderness. The BLM Action Center also seeks to influence national policy on management of our federal public lands. Before joining The Wilderness Society, she practiced law in the private sector for more than 10 years, working on a variety of environmental issues including energy development and environmental remediation, and was a partner with the law firm of Patton Boggs. She is a graduate of Northwestern University and the University of Pennsylvania School of Law.

On December 12, 2016, the Bureau of Land Management (BLM) finalized the rulemaking process for its new regulations regarding land use planning on BLM-managed public lands.¹ This is part of a broader initiative to modernize the way the agency manages our collective public lands, referred to as "Planning 2.0."² The existing planning rule has not been substantially updated since 1983. The two most substantive changes to the planning rule are planning at a landscape scale and providing more opportunities for public participation during the land use planning process. Both of these changes can support successful planning for energy development on public lands. Planning that guides development to the right places and takes into account the interests of all stakeholders is more likely to address potential conflicts and can ultimately result in more efficient development.

This paper will propose a recommended approach to landscape-level planning, discuss how planning at a landscape scale is already an important part of BLM land use planning, which is consistent with the agency's multiple use, sustained yield mandate, and demonstrate how landscape-level planning can be a valuable tool for responsible energy development on the public lands.

I. INCORPORATING LANDSCAPE-SCALE PLANNING INTO THE BLM PROCESS WHILE BUILDING ON LESSONS LEARNED.

One of the most important aspects of the BLM's planning rule is embracing the concept of planning at a landscape-scale rather than limiting the plan's scope to the agency's politically drawn field office boundaries. A landscape-scale approach is not only more consistent with modern science regarding ecosystem management, but also beneficial to the many users of the public lands who, similarly, do not necessarily stay within the political boundaries of the landscape. This includes recreationists, energy developers, ranchers and others that use the public lands - not to mention natural resources, such as water and wildlife.

A. Defining the "Landscape."

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During the public process for the Planning 2.0 rulemaking, there were many comments and much confusion about the meaning of planning at a landscape-scale and the implications for future land use planning and management. While "landscape" can mean many things to different people, the BLM sought to clarify its meaning by inserting a definition into the planning rule:

Landscape means an area of land encompassing an interacting mosaic of ecosystems and human systems characterized by a set of common management concerns. The landscape is not defined by the size of the area, but rather by the interacting elements that are relevant and meaningful in a management context. ³

In other words, planning at a landscape-scale does not necessarily or always mean that the agency will be planning at a larger scale. Rather, the BLM will be looking for opportunities to plan across jurisdictions where appropriate to address areas of common management concerns; and it may plan at a smaller scale where more meaningful to the decisions being made. For example, landscape-scale planning can include planning for energy development opportunities while simultaneously mitigating or offsetting the impacts of that use by increasing conservation management in the area. Another example includes planning decisions facilitating the connectivity of wildlife habitat, where migration often occurs beyond political boundaries.

Another important aspect of the BLM's updated planning rule is that it does not mandate that the BLM shift to landscape-scale planning. Instead, the rule creates a framework to allow planning at a scale other than the field office level when appropriate. For example, the rule identifies the decision-maker on the planning area and the plan itself as the "deciding official" and "responsible official" instead of automatically deferring to the field manager and state director.⁴ While the deciding official may still be the state director and the responsible official may still be the field manager, this shift permits planning area boundaries to cross field office or state lines helping to facilitate better planning at the most effective scale. The preamble to the BLM's planning rule also expands on this concept as follows:

The final rule does not prescribe "landscape-scale" planning area as suggested by public comments. The final rule does not prescribe any specific planning area boundary or geographic scale for such a boundary. Rather, the final rule provides flexibility to determine the appropriate planning area boundary based on relevant landscapes and management concerns. This flexibility does not represent a substantive change from the existing regulations, as the BLM currently may determine any planning area boundary. Under the current planning rule, planning areas have been both smaller and larger than field offices, including for example, the Greater Sage-Grouse Resource Management Plan Amendments (2015), West Eugene Wetlands Resource Management Plan (2015),

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and Resource Management Plans for Western Oregon (2016). Although not a substantive change in the regulations, the BLM believes that the final rule provides increased transparency to the public that the BLM intends to develop future planning area boundaries based on the relevant management concerns rather than historical administrative boundaries. ⁵

As stated by the BLM, the ability to define planning boundaries that transcend the traditional focus on individual field offices is currently within its authority and has been utilized by the agency in several instances. The BLM has already adapted its approach because the former planning rule did not fully address the challenges of implementing the BLM's mandate in the modern world. Further, as set out in detail in Section II below, it could also be argued that the Federal Land Policy and Management Act (FLPMA),⁶ BLM's organic act, requires this shift in order to best fulfill the BLM's multiple use, sustained yield mandate.

B. A Suggested Approach to BLM Landscape-scale Planning.

The current model of land use planning for BLM-managed lands is ill-equipped to deal with existing and future management challenges. First, the current model limits inventory and planning to arbitrary political boundaries that are a small subset of broader ecosystems that will become more dynamic and uncertain in the face of climate change. Second, the current model directs the BLM to look at all of the multiple uses and resource conservation from the same starting point, inadequately incorporating concepts of multiple use and sustained yield as defined and intended in FLPMA (as discussed in further detail in Section II). Third, the BLM has yet to account for, and incorporate, an approach to public land management and adaptation in a world where climate change is already a reality and will be for the foreseeable future. Fourth, planning does not incorporate needed mitigation strategies for project-level planning. Fifth, the current planning framework does not encourage the use and development of resources in the context of the broader landscape, which can be highly beneficial and more efficient for development interests. Finally, baseline data and monitoring regimes are insufficient to create a dynamic, adaptive planning process.

A landscape-level planning approach, however, can address these shortcomings and help improve land use planning outcomes in a changing world. To implement a true landscape-level planning approach, the BLM should ensure that planning areas can sustain prescribed resource uses, and that important and imperiled public land resource will be restored and conserved prior to allocating the planning area for multiple uses. The following is a suggested step-by-step planning approach that seeks to strike this balance in a more logical way.

.Step 1: Landscape-scale analysis of the carrying capacity of the area

The first step involves a baseline analysis of the carrying capacity of the planning area landscape. In other words, this requires an assessment of landscape resources and what degree of impact the

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planning area can sustain without significant harm or impairment of function. This should include, but is not limited to, an analysis of the landscape's areas of high conservation value, intactness, restoration potential, fish and wildlife populations, high value habitats, lack of development or roads, and dense cultural resources, in addition to areas that cannot be restored...