[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]
STATE PERSPECTIVES ON BLM'S DRAFT PLANNING 2.0 RULE
=======================================================================
OVERSIGHT HEARING
before the
SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS
of the
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED FOURTEENTH CONGRESS
SECOND SESSION
__________
Thursday, July 7, 2016
__________
Serial No. 114-48
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COMMITTEE ON NATURAL RESOURCES
ROB BISHOP, UT, Chairman
RAUL M. GRIJALVA, AZ, Ranking Democratic Member
Don Young, AK Grace F. Napolitano, CA
Louie Gohmert, TX Madeleine Z. Bordallo, GU
Doug Lamborn, CO Jim Costa, CA
Robert J. Wittman, VA Gregorio Kilili Camacho Sablan,
John Fleming, LA CNMI
Tom McClintock, CA Niki Tsongas, MA
Glenn Thompson, PA Pedro R. Pierluisi, PR
Cynthia M. Lummis, WY Jared Huffman, CA
Dan Benishek, MI Raul Ruiz, CA
Jeff Duncan, SC Alan S. Lowenthal, CA
Paul A. Gosar, AZ Matt Cartwright, PA
Raul R. Labrador, ID Donald S. Beyer, Jr., VA
Doug LaMalfa, CA Norma J. Torres, CA
Jeff Denham, CA Debbie Dingell, MI
Paul Cook, CA Ruben Gallego, AZ
Bruce Westerman, AR Lois Capps, CA
Garret Graves, LA Jared Polis, CO
Dan Newhouse, WA Wm. Lacy Clay, MO
Ryan K. Zinke, MT
Jody B. Hice, GA
Aumua Amata Coleman Radewagen, AS
Thomas MacArthur, NJ
Alexander X. Mooney, WV
Cresent Hardy, NV
Darin LaHood, IL
Jason Knox, Chief of Staff
Lisa Pittman, Chief Counsel
David Watkins, Democratic Staff Director
Sarah Lim, Democratic Chief Counsel
------
SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS
LOUIE GOHMERT, TX, Chairman
DEBBIE DINGELL, MI, Ranking Democratic Member
Doug Lamborn, CO Jared Huffman, CA
Raul R. Labrador, ID Ruben Gallego, AZ
Bruce Westerman, AR Jared Polis, CO
Jody B. Hice, GA Wm. Lacy Clay, MO
Aumua Amata Coleman Radewagen, AS Vacancy
Alexander X. Mooney, WV Raul M. Grijalva, AZ, ex officio
Darin LaHood, IL
Rob Bishop, UT, ex officio
------
CONTENTS
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Page
Hearing held on Thursday, July 7, 2016........................... 1
Statement of Members:
Dingell, Hon. Debbie, a Representative in Congress from the
State of Michigan.......................................... 2
Prepared statement of.................................... 3
Gohmert, Hon. Louie, a Representative in Congress from the
State of Texas............................................. 1
Statement of Witnesses:
Clarke, Kathleen, Director, Utah Public Lands Policy
Coordinating Office, Salt Lake City, Utah.................. 34
Prepared statement of.................................... 36
Questions submitted for the record....................... 37
Fontaine, Jeff, Executive Director, Nevada Association of
Counties, Carson City, Nevada.............................. 10
Prepared statement of.................................... 12
Questions submitted for the record....................... 16
Lyons, Jim, Deputy Assistant Secretary, Land and Minerals
Management, U.S. Department of the Interior, Washington, DC 22
Prepared statement of.................................... 24
Questions submitted for the record....................... 27
McAfee, Chuck, Landowner and Community Volunteer, Lewis,
Colorado................................................... 16
Prepared statement of.................................... 18
Questions submitted for the record....................... 19
Ogsbury, Jim, Executive Director, Western Governors'
Association, Denver, Colorado.............................. 4
Prepared statement of.................................... 5
Questions submitted for the record....................... 9
Additional Materials Submitted for the Record:
List of documents submitted for the record retained in the
Committee's official files................................. 61
Otter, Hon. C.L. ``Butch'', Governor of Idaho, May 25, 2016
Letter to Neil Kornze, Director, Bureau of Land Management. 47
Otter, Hon. C.L. ``Butch'', Governor of Idaho, July 1, 2016
Letter to the Federal Delegation of Idaho.................. 51
Sportsmen for Responsible Energy Development, July 6, 2016
Letter to Neil Kornze, Director, Bureau of Land Management. 40
OVERSIGHT HEARING ON STATE PERSPECTIVES ON BLM'S DRAFT PLANNING 2.0
RULE
----------
Thursday, July 7, 2016
U.S. House of Representatives
Subcommittee on Oversight and Investigations
Committee on Natural Resources
Washington, DC
----------
The subcommittee met, pursuant to notice, at 10:05 a.m., in
room 1324, Longworth House Office Building, Hon. Louie Gohmert
[Chairman of the Subcommittee] presiding.
Present: Representatives Gohmert, Labrador, Westerman,
Bishop; and Dingell.
Also present: Representatives Lummis and Gosar.
Mr. Gohmert. The Subcommittee on Oversight and
Investigations will come to order. The subcommittee is meeting
today to hear testimony on states' perspectives on the Bureau
of Land Management's Draft Planning 2.0 Rule.
Under Committee Rule 4(f), any oral opening statements at a
hearing are limited to the Chair and the Ranking Minority
Member. Therefore, I ask unanimous consent that all other
Members' opening statements be made a part of the hearing
record if they are submitted to the Subcommittee Clerk by 5:00
p.m. today. Hearing no objection, so ordered.
I also ask unanimous consent that the gentlelady from
Wyoming, Mrs. Lummis--when she comes from a meeting we were
having--and the gentleman from Arizona, Dr. Gosar, be allowed
to sit in with the subcommittee, since they are part of the
Full Committee. Hearing no objections, so ordered.
I will politely ask that everyone in the hearing please
silence their cell phones. When I was a judge, we would order
them confiscated. I don't do that now, but this will allow for
minimum distractions.
I will now recognize myself for 5 minutes for an opening
statement.
STATEMENT OF HON. LOUIE GOHMERT, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF TEXAS
Mr. Gohmert. The Subcommittee on Oversight and
Investigations is meeting today to hear testimony on BLM's
draft resource management planning rule. This draft rule is
part of BLM's Planning 2.0 initiative, and it completely upends
the current process by which the agency prepares and amends
resource management plans that govern public lands.
Getting the planning process right is crucial because the
effects of resource management plans on communities throughout
the West cannot be overstated. In some counties, where the
Federal Government owns a majority of the land, the decisions
that BLM makes have an outsized impact. Families and local
economies can and do suffer as a direct result of BLM's
unaccountable, Washington, DC bureaucracy. That is why Congress
specifically prioritized the input of those who are most
affected by BLM's resource management plans.
The Federal Land Policy Management Act (FLPMA) made clear
that BLM must coordinate with local governments on management
plans. BLM's Planning 2.0 effort and this draft rule appears to
ignore the law and undermines the communities that neighbor BLM
land. From refusing to further extend the comment period, to
cutting local communities out of the resource management
planning process, BLM has perfectly illustrated why so many
people feel that the Federal Government is not a good neighbor.
When BLM heard from numerous local governments, interested
organizations, and Congress that significantly more time was
needed to comment on the draft rule, BLM extended the comment
period for only 30 days, effectively saying, ``No, thanks. We
don't need to hear from all of you.'' That probably should not
have been a surprise, since, in many ways, the draft rule seems
to be designed to increase Washington's influence while
minimizing BLM's responsibility to work with the states, local
government, and affected people.
We are here today to remind BLM of its obligation to
cooperate with its neighbors, to provide an opportunity for
those who are most invested in an effective and efficient
planning process to share their expertise. They are not in
existence to repeatedly infuriate local landowners until they
are provoked to violence resulting in the death of a landowner,
as we have seen.
Many people have acknowledged that the planning process
could be improved, but BLM's draft rule, as it is currently
written, is not a workable solution. At a minimum, BLM needs to
reopen the comment period to allow for full and substantive
input on this complex rule. Ideally, BLM should go back to the
drawing board and partner closely with the state and local
governments to make sure the resource management planning
process works for everyone, not just agency officials.
In closing, I want to say thank you to our witnesses. Most
of them have traveled a great distance. And obviously, you
don't come for the money, because you don't get paid. This is
all because you care about our country and our freedoms, so we
much appreciate your willingness to come share your thoughts
and your observations with us, and we look forward to your
testimony.
The Chair now recognizes Mrs. Dingell for 5 minutes for an
opening statement.
STATEMENT OF HON. DEBBIE DINGELL, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF MICHIGAN
Mrs. Dingell. Mr. Chairman, thank you for your courtesy in
accommodating me this morning. In the interest of time, I am
going to ask unanimous consent to submit my opening statement
for the record and yield back the balance of my time. I
apologize to the witnesses that I am going to have to leave, to
be blunt, to take my husband to the doctor.
But I will be here for the first round of questions and, as
the Chairman knows, will pay attention to all the information
we learn today.
[The prepared statement of Mrs. Dingell follows:]
Prepared Statement of the Hon. Debbie Dingell, Ranking Member,
Subcommittee on Oversight and Investigations
Thank you, Mr. Chairman. And thank you to all of our witnesses who
have taken the time to be here with us today.
A little over a month ago, I was sitting in this very same seat, in
this very same room, talking about this very same topic. In fact, this
morning marks the third congressional hearing on the Bureau of Land
Management's resource management planning process.
If I didn't know better, I would think this re-run is a sign that
this committee has run out of issues that warrant oversight and
investigation. But I do know better and that couldn't be further from
the truth.
My colleagues and I have made requests for committee hearing topics
that demand our attention, but we continue to be ignored. Why aren't we
having a hearing to learn more about home-grown terrorism like we saw
at Malheur National Wildlife Refuge where our public lands were held
hostage at gunpoint and the public service employees who work on those
lands were threatened? Why can't we examine the alarming number of
species that are going extinct each year and whether our Federal
agencies have the resources they need to protect the biodiversity that
we all rely on every day? And when will we do our due diligence in
investigating the full spectrum of devastating consequences that
climate change is having on our lands, ecosystems, and our own health,
safety, and economy?
That said, BLM's resource management planning process is an
important issue. As I mentioned in the first hearing on the topic, BLM
is responsible for more public lands than any other Federal agency. And
it's clear that the agency's current process for developing resource
management plans is clunky, out of date, and inaccessible to the
public.
Fortunately, BLM's proposed rule for revising this process,
otherwise known as Planning 2.0, is a clear improvement. Planning 2.0
proposes several additional opportunities for the public to be involved
in planning, making the process more transparent and relevant to all
residents. Today we will hear some people claim that their organized
voice should be elevated above the direct and unfiltered voice of
Americans. I think that giving people more input into planning makes
more sense than hoping that interest groups or other elected officials
will do the talking for them.
The rule also proposes developing plans according to the natural
boundaries of landscapes and ecosystems, rather than political or
jurisdictional borders. This ``landscape-level approach'' not only
makes sense, but has been consistently supported by leaders and experts
in the field. In fact, there are ways in which BLM could strengthen its
landscape scale approach in the new rule. For example, the rule should
outline how landscape level plans will be monitored and evaluated to
determine whether plan revisions are needed. Doing so is key to
effective, adaptive management of our vast Federal lands.
So while there is no doubt that Planning 2.0 is important and
deserving of our attention, it seems to me that having three hearings
about it is a bit excessive. I will say that I am pleased to see that a
representative from the Department of the Interior was actually invited
to answer our questions about their initiative this time. My thanks to
the Chairman for taking my suggestion to do so. I'm hopeful that this
hearing--which I call Planning 2.0, version 3.0--will be a more
productive use of everyone's time.
I also hope that the Chairman will consider my other suggestions
for hearings in the future as well. Thank you and I yield back my time.
______
Mr. Gohmert. Coming from one of the nicest people I know,
certainly that is so ordered.
Now I introduce our witnesses. Mr. Jim Ogsbury is the
Executive Director for the Western Governors' Association,
located in Denver, Colorado. Mr. Jeff Fontaine is the Executive
Director of the Nevada Association of Counties, located in
Carson City, Nevada. Mr. Chuck McAfee is a landowner and
community volunteer from Lewis, Colorado. Mr. Jim Lyons is the
Deputy Assistant Secretary of Land and Minerals Management at
the U.S. Department of the Interior, located here in
Washington, DC. Ms. Kathleen Clarke is the Director of the Utah
Public Lands Policy Coordinating Office, located in Salt Lake
City, Utah.
Under Committee Rules, oral statements must be limited to 5
minutes, but your entire written testimony will be part of the
record. When you see the light turn yellow, you know you have 1
minute left. When it turns red, your time has expired, and
hopefully you will cease without having to be stopped.
The Chair now recognizes Mr. Ogsbury for your testimony.
STATEMENT OF JIM OGSBURY, EXECUTIVE DIRECTOR, WESTERN
GOVERNORS' ASSOCIATION, DENVER, COLORADO
Mr. Ogsbury. Thank you, Chairman Gohmert, Ranking Member
Dingell, and Chairman Bishop. My name is Jim Ogsbury. I serve
as the Executive Director of the Western Governors'
Association, an independent, bipartisan association
representing 19 western governors and 3 U.S. flag islands.
When it come to the development and administration of
Federal public policy, Western Governors are duly concerned and
often frustrated when they are regarded or treated as common
stakeholders. Governors, the chief executive officers of their
states, are much more than that. States are sovereigns.
Governors have constitutional responsibilities, delegated
authorities, and on-the-ground knowledge about their states'
economies, cultures, and environments. Their expertise and
perspective should be brought to bear in the design and
execution of Federal programs.
The governors are particularly anxious to operate as
authentic partners with Federal agencies in the execution of
programs that have demonstrable impacts on state authority.
States, for example, possess primary police powers to manage
most fish and wildlife within their boundaries. Likewise,
states have primary authority over the management of water
resources within their borders, and they possess plenary
authority over groundwater.
Because the management of Federal lands implicates these
authorities, and because the Bureau of Land Management owns
such vast amounts of land in the West, the governors are deeply
invested in the agency's processes for the development of
resource management plans. Moreover, the Federal Land Policy
and Management Act, FLPMA, recognizes this investment and
mandates a substantial role for governors in the BLM planning
process.
Unfortunately, the proposed Planning 2.0 rule fails to
honor the role of governors in this process, and instead
diminishes it in significant respects. With respect to states,
FLPMA says in relevant part that the Secretary of the Interior
shall, ``Coordinate the land use, inventory planning, and
management activities of or for such lands with the land use
planning and management programs of states. The Secretary shall
provide for meaningful public involvement of state officials in
the development of land use programs, land use regulations, and
land use decisions for public lands. Land use plans of the
Secretary under this section shall be consistent with state
plans to the maximum extent he finds consistent with Federal
law.''
Planning 2.0 changes the existing implementing regulations
in ways that diminish gubernatorial authority and influence.
Whereas current regulations provide that BLM shall strive for
consistency between resource management plans and resource-
related policies, programs, plans, and processes of states, the
proposed regulation would only consider consistency between
RMPs and officially adopted land use plans, substantially
narrowing the influence of governors.
Furthermore, the proposal eliminates the existing
regulatory directive that BLM accept a governor's
recommendation submitted as part of his or her consistency
review if they provide for a reasonable balance between the
Nation's interest and the state's interest. Under 2.0, the
Director is directed to simply consider governors' views. By
eliminating the current provision and failing to provide
criteria or standards for the review of gubernatorial input, it
appears that BLM is investing itself with great, perhaps
unfettered, discretion to disregard a governor's
recommendations.
Western Governors are concerned about several provisions
that shorten timelines for public comment and obviate the need
to publish notices in the Federal Register. The agency has
suggested the comment periods are appropriately reduced because
the proposed rule includes new opportunities for the public to
participate early on in the planning process, such as during a
new planning assessment phase.
These additional opportunities, however much they may
operate to elevate the role of the public and non-governmental
organizations in resource planning, do nothing to promote
coordination between the states and the agency; rather,
governors are treated like any other stakeholder.
Planning 2.0 includes new provisions calling for the use of
high-quality information. It is disappointing that the proposal
fails to acknowledge the value of state science, data, and
analysis, despite the congressional directive for the past 3
years that Federal land management agencies use state
information, at least with respect to wildlife data, as a
principal basis for land management decisions.
There was little disagreement that the resource management
planning process of BLM could be greatly improved. Accordingly,
Western Governors are prepared to work with BLM as authentic
and invested partners in the development and execution of a
planning process that redounds to the benefit of individual
states, the American West, and our great Nation. Thank you.
[The prepared statement of Mr. Ogsbury follows:]
Prepared Statement of James D. Ogsbury, Executive Director, Western
Governors' Association
Good afternoon, Mr. Chairman, Ranking Member Dingell, and members
of the subcommittee. My name is James D. Ogsbury. I serve as Executive
Director of the Western Governors' Association. WGA is an independent,
non-partisan organization representing the governors of 19 western
states and 3 U.S.-flag islands. I am honored to be here to share
perspectives of Western Governors regarding the U.S. Bureau of Land
Management's (BLM) recently released proposal, Resource Management
Planning--or, Planning 2.0.
In Planning 2.0, BLM proposes a number of changes in how it
develops and implements resource management plans (RMP). The stated
purposes of these changes are to clarify existing language, address
landscape-scale management issues, and more effectively involve
governmental and stakeholder partners.
Upon review of the proposal, Western Governors have concluded that
what the agency has proposed will have quite opposite effects from what
it intended: confusion rather than clarity, less transparency rather
than more. This proposal, if instituted, will significantly reduce the
opportunity for governors, state regulators, local governments and the
public to engage in what needs to be a collaborative land management
planning process for huge swaths of the American West.
state consultation
Western Governors have very clear expectations regarding how
Federal agencies should interact with them when developing regulatory
programs impacting states. To quote WGA Policy Resolution 2014-09,
Respecting State Authority and Expertise, ``Western Governors support
early, meaningful and substantial state involvement in the development,
prioritization and implementation of Federal environmental statutes,
policies, rules, programs, reviews, budget proposals, budget processes
and strategic planning.'' The rationale behind this position is a
logical one: states have statutorily- and constitutionally-recognized
authority to manage lands and resources within state borders.
Governors expect Federal land management agencies to respect states
as sovereign and full partners. As the chief executive officers of
their states, governors also expect to play the principal role in
determining the best-situated state governmental entity with which an
agency should consult on any given issue.
Governors have been very explicit in delineating what, in their
opinion, qualifies as ``early, meaningful and substantial''
consultation:
Predicate Involvement: agencies taking into account state
data and expertise to use as a basis for Federal regulatory
action;
Pre-publication/Federal Agency Decision-making: pre-
rulemaking consultation with governors and state
regulators, including substantive consultation with states
during development of regulations--and prior to launch of
formal rulemakings;
Post-publication/Pre-finalization: Governors and state
regulators should have the ability to engage with agencies
on an ongoing basis to seek refinements to proposed
regulations--again, prior to rule finalization; and
Rule/Policy Implementation: agencies should defer to
states to formulate implementation and compliance plans
where statutorily recognized delegated programs exist.
The process BLM engaged in with states during development of
Planning 2.0 falls short of the Governors' definition of consultation.
In September of 2014, BLM representatives briefed the WGA's Staff
Advisory Council on preliminary efforts related to Planning 2.0. That
briefing focused on matters such as an explanation of BLM's interest in
landscape-scale planning and the agency's general timeline and project
leadership for the initiative. BLM representatives were not able to
respond to substantive questions from Governors' representatives during
that briefing.
BLM later noted in its proposal that it had consulted with WGA
during rule development. Western Governors view this preliminary
briefing--and a subsequent exchange of correspondence between WGA
leadership and Interior Secretary Sally Jewell--as short of the
consultation contemplated in WGA Policy Resolution 2014-09. Secretary
Jewell did state ``[a]s new information becomes available on the [2.0]
Initiative, BLM will provide updated briefings to state and local
representatives through . . . the WGA . . . and other venues as
appropriate.'' These updated briefings did not take place.
Central to the Western Governors' position is that agency/state
consultation should be substantive and should take place on an early--
and ongoing--basis. The two preliminary communications from BLM and DOI
failed to achieve this standard.
governors' consistency reviews
BLM's Planning 2.0 proposal includes a number of provisions that
weaken the value and impact of Governors' Consistency Reviews in the
RMP development process:
It states that RMPs must be consistent with officially
approved or adopted land use plans of other agencies, state
governments, local governments, and tribal governments only
``to the maximum extent practical . . .'' Yet, the Federal
Land Policy and Management Act of 1976 (FLPMA)'s Section
1712(c)(9) states, ``Land use plans of the Secretary under
this section shall be consistent with State and local plans
to the maximum extent [the Secretary] finds consistent with
Federal law and the purposes of this Act.'' FLPMA clearly
does not permit BLM to limit the consistency requirement
merely because the agency thinks consistency would be
impractical.
The time allotted for governors to conduct their
Consistency Reviews is limited to 60 days. The clock alone
would forestall states from exercising their statutory
right to provide meaningful review of RMPs. Western states
have extensive experience working with Federal RMPs. These
lengthy documents contain extremely nuanced resource-
specific--and often site-specific--information. Federal
RMPs guide Federal planning decisions for their designated
area for up to several decades. Western Governors argue
vigorously that development of foundational documents such
as Federal RMPs should include significant input from
governors and state regulators. That simply cannot occur
under the structure suggested by the Planning 2.0 proposal.
Not only does BLM propose to severely limit the time
allotted, it also seeks to limit the scope of Governors'
Consistency Reviews. The rule would narrow the scope of
Governors' reviews by removing the words ``policies,
programs, and processes'' from the definition of officially
approved and adopted land use plans.
Governors would no longer be afforded an opportunity to raise
concerns based on inconsistencies between BLM RMPs and the
very ``state policies, programs, and process'' that guide
state planning efforts and decisionmaking but are not part
of officially approved and adopted state land use plans.
This would clearly limit Governors' participation in RMP
review and is especially problematic for states engaged in
shared management of threatened and endangered species with
vast ranges that span multiple planning areas and multiple
states. This change could preclude BLM's consideration of
various kinds of state-endorsed plans--for instance State
Wildlife Action Plans and multi-state agreements. Multi-
state agreements have been used for decades to conserve
resources like threatened or endangered species. These
plans exhibit effective and ongoing cross-jurisdictional
planning between states--planning that has taken place on a
landscape-level basis. Preclusion of such plans by BLM
would undermine its goal of planning on a landscape scale
and would threaten existing state conservation efforts.
Governors have primary decisionmaking authority for management of
state resources, and have enacted effective plans to manage
and conserve western resources. They therefore must be
afforded an opportunity to raise any concerns that arise,
not just those concerns that arise from inconsistencies
between BLM and state plans.
The proposed rule states BLM may consider whether to
adjust the timeline or appeal process for a Governor's
Consistency Review. To endow an agency with the flexibility
to simply change the process--particularly the mechanism
for states to appeal BLM's decision regarding a Governor's
Consistency Review--would operate to the clear disadvantage
of states.
planning assessment
BLM proposes to establish a new step in the RMP development
process: the planning assessment. This assessment would occur during
the scoping process, before BLM begins work on an RMP. The goal is to,
``combine and revise existing steps for inventory data and information
collection and the analysis of the management situation.''
This portion of the rule needs to clarify: the process for states
to be substantially and meaningfully involved in development of a
planning assessment; BLM's obligation to use state data and
information; how state data and information will be gathered; and how--
and when--information supporting assessments will be made available to
the public.
proposed changes to public involvement processes
Early, meaningful and substantive engagement of governors and their
designated state regulators is crucial to the RMP development process.
Western Governors also believe that any open and collaborative Federal
regulatory process must involve adequate opportunity for engagement of
the public. BLM's proposal falls short in this regard. The agency
proposes to shorten two key procedural aspects of RMP development:
BLM proposes to shorten comment periods for draft RMPs--
and the draft environmental impact statements which must
accompany RMP development--by a full one-third, from 90
days to 60 days; and
BLM proposes a 45-day minimum comment period--a full 50
percent reduction from the current 90-day minimum--for EIS-
level amendments.
Reductions in public comment timelines will greatly limit input of
stakeholders, many of whom are likely to be directly affected by RMPs
for an extended period of time. Additionally, significant changes can
take place between the time that RMPs and environmental compliance
documents are drafted. BLM should retain the existing minimum public
comment period time frames so that states, local governments and other
stakeholders will have adequate time to fully analyze proposed changes
and provide meaningful feedback on foundational, long-term land
management decisions.
BLM has based its proposed reduced public comment timelines on a
premise that doing so will reduce the overall decisionmaking timeline.
Western Governors, however, are concerned that reducing the opportunity
for stakeholder input early in the planning process will ultimately
result in increases to the overall planning and RMP implementation time
frames as stakeholder concerns are raised later in the process.
Potential litigation stemming from these stakeholder concerns could
further extend planning and implementation timelines.
changes to water management aspects of rmps
BLM's proposed rule indicates the agency may also add provisions to
its RMPs that could result in greater agency involvement in water
management, a concerning potentiality for western states. As stated in
WGA Policy Resolution 2015-08, Water Resource Management in the West,
``Western Governors believe Federal partners must continue to recognize
states' primary authority to develop, use, control and distribute
surface and ground water within state boundaries.''
Additionally, BLM's proposal indicates the agency may add
provisions to RMPs that could provide for greater involvement in areas
affecting traditional state authority. These areas include:
Managing wetlands to buffer the effects of weather
fluctuations by storing floodwaters and maintaining surface
water flow during dry periods;
Identifying and responding to the degree of ``local
dependence on potable water from groundwater recharge in
the planning area;''
Estimating the sustained levels of potable water from
groundwater recharge based on the current and projected
rainfall averages for an area; and
Considering the long-term needs of future generations for
renewable and non-renewable resources including watersheds.
It is vital that nothing in BLM's proposed rule be construed as
affecting states' primacy over allocation and administration of water
resources in state borders. BLM's Planning 2.0 must exhibit agency
recognition and deference to states' legal rights to allocate, develop,
use, control, and distribute the states' waters.
Potential implications for water management and quality, and
project development and maintenance, that should be considered by the
agency include:
Siting for new water infrastructure on public lands;
Operation and maintenance of existing water infrastructure
located on public lands;
Intrusions on states' exclusive authority on water
administration and development; and
Impacts on existing watershed plans under Section 319 of
the Clean Water Act.
transparency
Any process that reduces BLM's responsibility to actively engage
with stakeholders represents a retreat from openness and transparency.
Yet that is what BLM suggests in Planning 2.0. Currently BLM publishes
RMP documents exclusively in the Federal Register. The Planning 2.0
proposal, however, would permit the agency to forego formal publication
of many RMP-related documents. Those documents could instead be posted
to the BLM Web site and at BLM offices within an RMP planning area.
This change would significantly impair the ability of affected
stakeholders, local governments and states to monitor, understand and
participate in the RMP development and amendment processes.
The public should be afforded a clear and consistent opportunity to
review and comment on proposed new or revised Federal RMPs. This is
particularly true given that management plans have a direct and
substantial impact on existing multiple use rights such as grazing
permits, road rights-of-way, conventional and renewable energy
development permits, and rights-of-way for electricity transmission and
distribution infrastructure.
summary
In summary, BLM's Planning 2.0 proposal, as drafted, presents
serious challenges and contains significant shortcomings. This is
unfortunate, not only for states, but also for local governments and
stakeholders. In WGA's estimation, much of the opposition to this
proposal would have been mitigated had BLM engaged in ``early,
meaningful and substantial'' consultation with Governors in the
formative stages of the rule's development.
Chairman Gohmert and Ranking Member Dingell, thank you for the
opportunity to testify today and to provide the subcommittee with the
viewpoints of the Western Governors I serve. I hope my testimony has
been helpful to the subcommittee. I welcome any questions you or your
colleagues may have.
______
Questions Submitted for the Record by Rep. Gohmert to Jim Ogsbury,
Executive Director. Western Governors' Association
Question 1. During the hearing, you were asked ``[H]ave you heard
any stories from Western Governors [of] specific instances where they
were not allowed the voices that they felt they should have in policies
that affected the people in their states? ''
To this, you replied, ``[. . .] I would appreciate the opportunity
to provide a more thoughtful answer for the record.''
Please provide information about each instance in which a Western
Governor was not given adequate representation or consideration
regarding BLM policies that affected the citizens of their respective
states.
Answer. Lack of substantive consultation with states during Bureau
of Land Management (BLM) rulemaking and policy change efforts is an
ongoing concern of Western Governors. Western Governors have made clear
their view that prior to intervention in any state-run program, Federal
agencies should consult with states in a meaningful way and on a timely
basis. That consultation should involve: predicate engagement before a
rule is proposed, pre-publication consultation with governors and state
co-regulators, and post-publication engagement with these parties to
seek refinements. Finally, as provided for by Congress in various
statutes, significant deference should be granted to states for
formulation of state plans designed to implement delegated programs.\1\
Two examples of insufficient engagement with governors by Federal
agencies are discussed below.
---------------------------------------------------------------------------
\1\ WGA Policy Resolution 2014-09: Respecting State Authority and
Expertise.
First, and most pertinent to the July 7 Subcommittee
hearing, is Western Governors' consultation experience regarding BLM's
Planning 2.0 rule. This consultation fell far short of governors'
requested engagement with the agency prior to--and during--rule
development, as well as after publication of the proposed rule.
In the fall of 2014, Western Governors' and WGA staff were provided
a briefing by BLM on the agency's Planning 2.0 initiative to revise the
way it develops and amends resource management plans (RMPs). During
this briefing, BLM representatives indicated they were not at that time
able to provide substantive information for state partners on matters
including the agency's rule development and proposal timeline, its
plans for state and public engagement, or its plans to ensure
consistency with existing Federal RMPs and similar state plans. Western
Governors' staff were told that further opportunities for engagement
and discussion would be provided by the agency in advance of issuance
of the proposed rule. These subsequent opportunities did not
materialize. Instead, governors' staff and state regulators were left
to monitor BLM publications and announcements regarding the rule's
development.
In-person engagement by BLM did not occur until after BLM's
Planning 2.0 rule had been proposed and comments submitted. That in-
person engagement took place in Jackson Hole, Wyoming in June of 2016.
While Western Governors appreciate BLM's willingness to meet with state
partners, they again found the level of engagement to be perfunctory in
nature. For instance, this meeting lacked specific information about
BLM's plans to involve governors and state regulators during the
agency's post-proposal rule revision process. Additionally, there was
no discussion about BLM's plans for rule implementation or matters
involving statutorily mandated deference to states.
A second example of less-than-satisfactory state
consultation by BLM involves the 2015 development of agency sage-grouse
and sage-grouse habitat management plans. Prior to development and the
2015 release of BLM and U.S. Forest Service's sage-grouse management
plans, Western Governors worked with Federal agencies and multiple
stakeholders in a proactive, collaborative, innovative and
conservation-focused manner to design effective and sensible plans. BLM
was involved with these cooperative efforts to develop state sage-
grouse conservation plans, designed to conserve sage-grouse resources
and habitat.
Western Governors were concerned that the resource management plans
ultimately released by BLM were significantly different from, and
inconsistent with, the cooperatively developed state plans. The scope
of difference and inconsistency reflected insufficient attention to,
consideration of, and respect for, the input, experience and insight of
governors and state regulators.
Additionally, several Western Governors submitted very
comprehensive consistency reviews in response to BLM's sage-grouse
management plans. These reviews detailed inconsistencies between the
BLM plans and collaboratively developed state plans and pre-existing
state conservation plans and programs. Agency responses to governors'
consistency reviews were largely truncated and dismissive. Further
elaboration on this matter and comments from Western Governors can be
found on WGA's Web site.\2\
---------------------------------------------------------------------------
\2\ Western Governors comment on BLM and Forest Service sage-grouse
management plans. Published August 5, 2015.
Thank you again for the opportunity to testify before the committee
and to provide this supplemental response. Please contact me if I might
---------------------------------------------------------------------------
be of further assistance to the subcommittee.
______
Mr. Gohmert. Thank you very much. I appreciate that opening
statement.
The Chair now recognizes Mr. Fontaine for 5 minutes.
STATEMENT OF JEFF FONTAINE, EXECUTIVE DIRECTOR, NEVADA
ASSOCIATION OF COUNTIES, CARSON CITY, NEVADA
Mr. Fontaine. Chairman Gohmert, Ranking Member Dingell, and
Chairman Bishop, thank you for the opportunity to testify today
on BLM's draft Planning 2.0 rule. Nevada has the highest
percentage of federally managed public lands of any state,
approximately 85 percent, and five of our counties contain over
90 percent of public land. The Bureau of Land Management
administers the majority of this public land, 47 million acres.
For good reason, the Federal Land Policy and Management Act
requires engagement specifically with local partners in three
ways: coordination, consistency review, and meaningful public
involvement. Local communities are greatly impacted by the
BLM's land use plans and management decisions, and vice versa.
Without local partners, the BLM cannot effectively manage their
land; and without local engagement from BLM, impacts on local
partners cannot be adequately considered and mitigated.
As the Nevada BLM's 1997 vision statement says, the future
of Nevada will, in large part, be shaped by the future of
public land management.
Commissioner Jim French from Humboldt County, Nevada,
testified before this subcommittee and noted three concerns
with the draft rule: specifically, that BLM has not provided
sufficient time for counties to fully digest and offer comment,
that BLM has proposed changes that will diminish the statutory
role of local governments and reduce requirements to ensure
consistency with local policies, and that BLM seeks to
implement a multi-state landscape level of analysis that could
diminish the ability to meaningfully assess the local impacts
of BLM management decisions.
We share these same concerns. Meaningful public involvement
of local government has not occurred in this rulemaking
process, and FLPMA distinguishes between the general public,
state, and local governments, and also imposes a higher
standard on the BLM for involving state and local government.
Only a few of our counties have the resources necessary to
employ a full-time natural resources coordinator of similar
position dedicated to monitoring proposals from BLM, let alone
assessing the impacts of sweeping Federal land management
actions, like Planning 2.0, at the county level.
That is why meaningful public involvement of local
government requires more than public notice and comment. That
Nevada is shaped by the future of public land management
remains true today, and that is why we have such a strong
interest in Planning 2.0.
Nevada's counties perform important sovereign
responsibilities and provide fundamental services, such as
planning and zoning, public health and safety, and emergency
response. They also have an important role in maintaining local
economies. Nevada experienced an unprecedented economic
distress during the great recession, but is again a growing
state with a diversifying economy, including renewable energy
and other sectors that rely on BLM land.
Counties need to effectively participate in BLM land use
planning to promote continued prosperity while protecting
public lands for future generations. Unfortunately, counties
with the most public lands are also those with the least
capacity to engage in BLM land use planning because of their
limited staffing and resources. For this reason, proactive
outreach from BLM to local government is a critical component
of meaningful public involvement.
We are concerned that the BLM has proposed changes to
current planning rules that will reduce local government's
ability to ensure Federal consistency with local master plans
and policies. FLPMA requires consistency review occur at four
different stages of the planning process. First it mentions
appraisal, then consideration, an attempt to resolve, and,
finally, consistency with state and local plans.
Instead, proposed regulations say the BLM will determine
whether the county provided officially approved and adopted
land-use plans or raise specific inconsistencies with those
plans. FLPMA does not limit consistency review to land use
plans, nor require any plans to be officially approved or
adopted.
Finally, Planning 2.0 proposes to implement a multi-state
landscape level of analysis that could diminish the ability of
BLM to meaningfully assess the local impacts of management
decisions. Landscape-scale economic impact analysis are likely
to dwarf local economic costs, which will greatly dilute the
overall cost in the cost-benefit analysis, even where the cost
to a local economy might never be recovered. This creates a
bias and unjustly eliminates BLM's requirement to resolve
possible economic impacts to local governments.
A landscape-scale approach that does not involve local
officials would require state and local governments to spend
more time and taxpayer dollars building relationships at higher
levels, and local relationships that have been built over years
of close collaboration would be de-emphasized.
On May 25, the Nevada Association of Counties (NACO)
submitted to the BLM annotated comments and revisions which
were carefully drafted with a coalition of local and state
governments. Together, we have developed language that we
believe helps to achieve BLM's stated goals in Planning 2.0
while addressing significant local government concerns,
including preserving the elevated role expressly granted to
state and local governments under FLPMA.
We continue to encourage BLM to adopt these comments. Thank
you again for holding today's hearing. I look forward to
answering questions from the committee.
[The prepared statement of Mr. Fontaine follows:]
Prepared Statement of Jeffrey Fontaine, Executive Director, Nevada
Association of Counties
Chairman Gohmert, Ranking Member Dingell and members of the
subcommittee, thank you for the opportunity to testify today on BLM's
Draft Planning 2.0 Rule.
My name is Jeff Fontaine and I have served as Executive Director of
the Nevada Association of Counties (NACO) for nearly 10 years. NACO
represents all of Nevada's 17 counties and works on their behalf on
public lands issues including land use planning.
Nevada has the highest percentage of federally managed public
lands, approximately 85 percent, of any state in the Union and five of
Nevada's counties contain over 90 percent public land. The majority of
this public land, 47 million acres, is administered by the Bureau of
Land Management (BLM). Nevada alone contains 19.32 percent of BLM land
following only Alaska at 29.27 percent.
The Federal Land Policy and Management Act of 1976 (FLPMA) requires
engagement specifically with local partners in three ways:
coordination, consistency review, and meaningful public involvement.
These responsibilities are meant solely for the BLM's partners and for
good reason: Nevada's communities and economies are greatly impacted by
the BLM's land use plans and management decisions and vice versa. The
BLM recognizes these realities, as the Nevada BLM's 1977 vision
statement says ``The future of Nevada will in large part be shaped by
the future of public land management.'' Although ecological landscapes
extend beyond political boundaries, political boundaries represent the
BLM's local partners and primary on-the-ground managers for each unit
of land. Without local partners, the BLM cannot effectively manage any
land. More so, impacts on local partners cannot be adequately
considered and mitigated for if the BLM's planning regulations do not
implement a process that works for both the BLM and its partners. It is
for these common-sense reasons that FLPMA designates counties as the
BLM's planning partners.
Commissioner Jim French from Humboldt County, Nevada and a member
of NACO's Board of Directors testified at your hearing on ``Local and
State Perspectives on BLM's Draft Planning 2.0 Rule'' on May 12, 2016.
He noted three concerns with the Draft Planning 2.0 Rule,
specifically that BLM:
Has not provided sufficient time for counties to fully
digest and offer comment on the proposed rule change;
Has proposed changes that will diminish the statutory role
of local governments and reduce requirements to ensure
Federal consistency with local policies; and
Seeks to implement a multi-state landscape level of
analysis that could diminish the ability of BLM to
meaningfully assess the local impacts of management
decisions.
We share these same concerns and today would like to expand on
these issues. Only a few of our counties have the staffing and
budgetary resources necessary to employ a full-time natural resources
coordinator or similar position dedicated to monitoring proposals from
the BLM let alone assess the impacts of sweeping Federal land
management actions like Planning 2.0 at the county level. That is why
NACO, along with representatives of state and local governments
spanning the BLM's jurisdiction requested that the BLM extend the
public comment period from 60 days to 180 days. The BLM granted only a
30-day extension until May 25, 2016. This alone indicates the lack of a
true partnership between local and Federal land management.
Goals and actions must be viewed as a whole. While the BLM's stated
goal is to ``ensure participation by the public, state and local
governments, Indian tribes and Federal agencies . . .,'' the commitment
must be solidified within the regulatory text. While the discussions
regarding Planning 2.0 continually stress the importance of local
relationships, the text of the proposed rule compared to the existing
regulatory language greatly diminishes in practice the inter-
governmental and public roles. It is important that we work together to
ensure the language achieves Planning 2.0's positive narrative.
That Nevada is shaped by the future of public land management
remains true today and is why we are so concerned and interested in
collaborating with the BLM on the development of their land use
planning initiative. Nevada's counties perform important sovereign
responsibilities. Nevada's counties, like others across the Nation,
provide fundamental services such as planning and zoning;
infrastructure, water and wildlife protection, public health and safety
and emergency response on both private and public lands within their
jurisdiction. Thus, it is imperative that the BLM maintain regulatory
language that supports these activities and actively acknowledge the
counties important responsibilities.
Nevada's counties also have an important role in maintaining local
economies. In the last 25 years Nevada experienced periods of
unprecedented growth in which it led the Nation in population expansion
and then in economic distress during the ``Great Recession.'' Nevada is
again a growing state with a diversifying economy which includes
renewable energy and other industries that rely on BLM administered
land. We want to make sure that Nevada's counties are able to
effectively participate in BLM land use planning to promote continued
prosperity while protecting the public lands for future generations.
In Nevada, BLM planning is critical for all of our counties--
whether our most rural or most urban. This requires a flexible process
that relies on collaboration with local officials to address the unique
needs of our individual counties. Where urban counties may be able to
provide capacity for BLM rural counties may require additional outreach
due to a lack of resources. Our two urban counties, Clark and Washoe,
represent 2.5 million people, or 88 percent of our state's population.
These counties have comprehensive planning staffs who engage with the
BLM on land use plans. Unfortunately, the majority of the counties with
the most public land are also the most rural and economically
distressed communities. NACO has been making efforts to enhance
communications about public lands issues and has been co-hosting
quarterly public lands breakfast meetings in which state, county, U.S.
Forest Service and BLM officials discuss specific public lands
challenges in our state. At our most recent breakfast meetings BLM
officials were interested to hear that our urban counties are
experiencing challenges encouraging commercial and industrial
development due to increasingly high prices driven by residential
developers seeking newly disposed lands. As commercial development is
one of Nevada's strategic business sectors, our presenters expressed
ways the BLM might work as a partner with the counties to ensure that
the use of newly disposed land is driven by the state's key economic
goals. Similarly, as partners, the BLM and counties can create capacity
to address non-controversial applications such as right-of-way permits
which would free up the BLM's time and help increase economic certainty
for new projects and provide capacity for more Local Area Working
Groups performing on-the-ground sage grouse habitat restoration
activities. This is not the type of information included in an
``officially adopted land use plan'' and likely would not be included
in a BLM land use plan. It is coordination of local governments and BLM
that enable the sharing of this critical information. These
conversations must be ongoing, and if they are not then at a minimum
they must occur at the forefront of any planning stage.
In rural counties such as Esmeralda where over 95 percent of their
land is managed by the BLM, in order to develop economic development
strategies that will sustain and revitalize their local economy, a
rural community needs a sense of the existing structure and overall
trends within the local economy. Thus, the economic impacts of public
lands management can drastically change that structure and these trends
for their main economic sectors, including livestock grazing, timber,
minerals, tourism, agriculture, and water development.
Again, FLPMA provides three key roles for local government partners
during the planning process: coordination, consistency review, and
meaningful public involvement. These statutory mandates are not
currently reflected within the planning regulations and in many cases
were actively deleted from the existing regulations. It is not enough
that the BLM says it will follow the law at what it believes will be
``appropriate times,'' and it is not enough that the BLM provide
internal guidance.
``coordination''
Under the Federal Land Policy and Management Act (FLPMA), the BLM
must ``coordinate the land use inventory, planning, and management
activities . . . with state and local governments,'' as well as,
``provide for meaningful public involvement of state and local
government officials.'' These requirements apply to all steps of
resource management planning, including the planning rules. The
planning rule has not yet been finalized so there is still time for
changes and for the BLM to work with their state and local government
partners to address their concerns.
``consistency review''
NACO is also concerned the BLM has proposed changes to current
planning rules that will reduce local government's ability to ensure
Federal consistency with local master plans and policies. As elected
officials and intergovernmental partners with the Federal Government,
counties must have a seat at the table and an opportunity to help shape
management decisions in partnership with land managers. We read FLPMA
to say that consistency review must occur at four different stages of
the planning process; it first mentions appraisal, then consideration,
an attempt to resolve and finally consistency with state and local
plans.
Yet the proposed regulations say the BLM will determine whether the
county provided ``officially approved and adopted land use plans'' or
raised ``specific inconsistencies'' with those plans. Otherwise, the
BLM will not review those plans. Nowhere in FLPMA does the language say
``officially approved,'' ``adopted,'' and it does not limit consistency
review to ``land use plans.'' The language is intentionally all-
inclusive. These provisions are not in alignment with the BLM's goals
to improve relationships and speed up the process. The BLM will now add
a step to determine whether the counties sovereign responsibilities are
in fact worth reviewing where FLPMA already says that they are.
Another consequence of limiting consistency review to ``officially
approved and adopted land use plans'' is state and local governments
will need to revisit every resource-related plan and program to find a
way to call it a ``land use plan.'' This is very difficult to
accomplish and stretches their limited resources.
``meaningful public involvement''--applies to rulemaking process
Meaningful public involvement of local government has not occurred
in this rulemaking process and is not a term included within Planning
2.0. FLPMA uses the term ``general public'' separate from ``state and
local governments'' and also imposes a different standard on the BLM
for addressing each, respectively. Meaningful Public Involvement is a
collaborative affair that requires more than public notice and comment.
Meaningful Public Involvement must be incorporated into the planning
regulations. The engagement for Planning 2.0 has been exactly the same
for local governments as for the general public, even for provision
changes that greatly impact state and local government planning. We
believe that had BLM done more outreach in counties that contain large
amounts of public lands and engaged associations like ours they would
have been able to develop a more workable proposal and address any
unintended consequences or challenges posed by the proposed rule.
``landscape scale''
Finally, Planning 2.0 proposes to implement a multi-state landscape
level of analysis that could diminish the ability of BLM to
meaningfully assess the local impacts of management decisions.
Local BLM Officials should drive the planning process, especially
at a landscape scale. Where planners (deciding officials and
responsible officials) are elevated to positions outside of the
planning area, landscape-level planning undermines the purpose of FLPMA
(and NEPA).
Landscape-scale economic impact analyses are likely to dwarf local
economic costs, which will greatly reduce the overall ``cost'' in the
cost-benefit analysis even where the cost to a local economy might
never be recovered. This will create bias and unjustly eliminate BLM's
need to address and resolve the possible economic destruction of one or
several local governments and programs as a result of their
decisionmaking.
Another unintended consequence is a reduced emphasis on local BLM
relationships. A landscape-scale approach that does not involve local
officials means that state and local governments will need to spend
more time and taxpayer dollars building relationships at higher levels
and the local relationships that have been built over years of close
collaboration will be de-emphasized.
The Nevada Association of Counties submitted to the BLM on May 25,
2016 official comments as well as ``Annotated Comments and Revisions.''
The ``Annotated Comments and Revisions'' were carefully drafted with a
coalition of local and state governments who are partners with the BLM
in the planning process. Together, we have identified needs and
developed language that we believe addresses significant local
government concerns within the Planning 2.0 rule and helps achieve
BLM's stated goals. Other commenters that submitted the ``Annotated
Comments and Revisions'' to the BLM include:
State of Nevada Governor's Office
Nevada State Land Use Planning Advisory Council
Clark County, Nevada, City of Las Vegas, City of Henderson
joint letter
Churchill County, Nevada
Eureka County, Nevada
Esmeralda County, Nevada
Storey County, Nevada
Wells Nevada Rural Electric Company
Nye County, Nevada
Mineral County, Nevada
National Association of Counties
Utah Association of Counties
Idaho Association of Counties
Rural County Representatives of California
New Mexico Association of Counties
Wyoming County Commissioners Association
Governor of Wyoming
Foundation for Integrated Preservation
McKenzie County, North Dakota
NACO understands that relationships are keys to any planning
process. Regulations require training and consistent application and
where relationships are good they should be afforded the flexibility to
accomplish mutual goals. We are fortunate to have in Nevada a State BLM
Director and team with whom we coordinate and collaborate regularly.
However, we cannot always count on having BLM managers and staff that
understand our state and are as willing to have an ongoing dialogue
with our counties. This is why it is extremely important that the BLM
take the time to get the proposed regulations right.
Our desire is to work with the BLM to make this a rule that
strengthens the partnership between the BLM and local and state
governments, preserves the elevated role expressly granted to state and
local governments through Coordination, Consistency Review, and
Meaningful Public Involvement in the planning process and ensures the
role of the public through the public involvement requirement.
______
Questions Submitted for the Record by Rep. Gohmert to Jeff Fontaine,
Executive Director, Nevada Association of Counties
Question 1. During the hearing I asked ``if you have specific
instances that you can find where the rules have worked a hardship,
then let us know those. Please send us those in the days ahead,'' in
regards to rules promulgated by the BLM.
Please list specific instances where rules promulgated by the BLM
have led to compliance hardships for either state, local, or municipal
officials.
Answer. We are unaware at this time if other rules promulgated by
the BLM have led to compliance hardships for either state, local or
municipal officials. With respect to the planning regulations addressed
in Planning 2.0, what we have experienced is not necessarily a hardship
from the existing land use planning rules. Rather, we believe the
hardship is that the BLM has not followed its existing planning
regulations.
Planning 2.0 removes the specific regulatory sections with which
the BLM has failed to comply. The existing rules, last amended in 2005,
contain coordination requirements that are meant specifically to
benefit local governments.\1\ Where the 2005 Amendments added language
that significantly increased the role of state and local governments,
now the proposed regulations seek to reverse each of those
improvements.
---------------------------------------------------------------------------
\1\ 70 FR 14561.
---------------------------------------------------------------------------
The state of Nevada along with the majority of our counties are
involved in a lawsuit challenging the legality of the BLM's ``current
practices'' regarding land management planning for the Approved
Resource Management Plans designed to protect the Greater Sage-Grouse.
This lawsuit alleges that the BLM has failed to adhere to its current
regulations, specifically those provisions from 2005, and to the
requirements of the Federal Land Policy and Management Act and National
Environmental Policy Act. This lawsuit stems from a lack of consistency
review, coordination, consultation and meaningful public involvement of
the state and county governments. At the invitation of the Interior
Secretary \2\ in 2012 and with input from local BLM officials the state
and counties invested significant time and public resources developing
conservation plans. Yet last year the BLM signed Records of Decision
for land management plans that disregard these plans.
---------------------------------------------------------------------------
\2\ E.O. 2012-19, retrieved at http://gov.nv.gov/News-and-Media/
Executive-Orders/2012/EO-_2012-19_-Establishing-the-Sagebrush-
Ecosystem-Council/.
---------------------------------------------------------------------------
We understand that Utah, Idaho, Colorado and Wyoming have also
filed similar lawsuits.
One purpose of the counties' lawsuit is to ensure compliance with
FLMPA and the current planning regulations, including several
regulations now omitted from the proposed language in Planning 2.0. For
example, 43 C.F.R. Sec. Sec. 1601.3 and 4, which require that in
amending land use plans the Secretary coordinate with state and local
governments, consider state and local plans that are germane to the
development of land use plans for public lands, and provide for
meaningful public involvement of state and local government
officials.\3\
---------------------------------------------------------------------------
\3\ Western Exploration, Case No. 3:15-cv-00491-MMD-VPC at 37.
Thank you again for your question and we hope this response was
---------------------------------------------------------------------------
helpful.
______
Mr. Gohmert. Thank you very much.
At this time, Mr. McAfee, you are recognized for 5 minutes.
STATEMENT OF CHUCK McAFEE, LANDOWNER AND COMMUNITY VOLUNTEER,
LEWIS, COLORADO
Mr. McAfee. Mr. Chairman and members of this subcommittee,
I appreciate the opportunity to share my thoughts with you. My
grandparents and their 1-year-old son, my father, came to
Montezuma County in southwest Colorado 100 years ago. They came
West because their Nebraska farm dried up. They homesteaded and
began farming by hand-grubbing the sagebrush to plant and to
harvest crops. They lived in a tent for a couple of years
through two winters. They hauled water for themselves and for
neighbors. They were tough, hard workers. Dry-land pinto beans
and wheat were the crops of the day, and those are important
today.
My perspective here is that of a long-time resident, third-
generation on the McAfee farm land. BLM is a neighbor. We are
governed locally by an elected board of county commissioners.
My comments come to you from what I observe, what I know to be
true. In this context, I will address two topics: public
participation and planning around natural landscape versus
political boundaries.
First, I am for as much public involvement as possible, as
early as possible, in planning for public lands. I am local, I
am concerned, I am thoughtful, and I do my homework. I take the
long view. I am a life member of the local chapter of the Rocky
Mountain Farmers Union, and we understand the relationships
among public lands and agricultural lands. Local people want
their voices to be heard. What we think and what we say can be
extremely valuable in gaining a broad view from long-term local
experience, interests, ideas, and needs for public lands,
especially in a place like Montezuma County, where we have a
lot of public land.
I don't understand why some county commissioners are so
opposed to enabling greater public participation. Under
Planning 2.0, they will not give up their participation, their
voices and authority will not be diminished. The whole process
will be made richer by inclusion of public voices early on.
They are elected to represent us, but that does not translate
to us giving up the right and responsibility of representing
ourselves.
We have perspectives and ideas that are broader and deeper,
and sometimes they are too busy jockeying with the BLM about
who is in control of our Federal lands to even represent us at
all. Recently BLM started a process to discuss whether a master
leasing plan would be helpful in our area. Our current resource
management plan does not really get into the details of how and
when leasing or development happens. Instead of engaging in the
discussion, our commissioners spent a long time refusing to
even come to the table, questioning BLM's motives and
authority. Meanwhile, many of our community members wanted to
have this discussion, and wished that our commissioners would
stop obstructing it.
BLM should take the lead in getting through the rhetoric
and getting on with dealing effectively with issues through a
thoughtful, transparent collaboration. I know that it can work,
and that giving the public more input will only make it better.
Next, to planning around natural landscape versus political
boundaries. In my view, this is so simple. The natural
landscape and resources got here first. Political lines came
later, and generally were not established with natural
boundaries in mind. It is obvious when you think of watersheds,
for example. Those responsible for managing natural resources
need to have the latitude, and be held accountable for planning
for the whole picture, the natural picture. In this way, the
interests of local farmers and ranchers and others who depend
on these resources will be taken seriously. This is part of the
reform that BLM was proposing, and local government will
continue to have a strong voice in this common-sense way of
managing land.
BLM's proposal seeks to provide more and earlier
opportunities for input. This makes sense to me for counties,
states, tribes, and even folks like me. We care about the land,
and we want to have a voice in how it is run. Your Web page
says, ``Empowering people through our Nation's resources.''
What better way to empower us than to listen to us as plans are
developed early on? It is about participation, collaboration,
and transparency. Thank you for listening.
[The prepared statement of Mr. McAfee follows:]
Prepared Statement of Chuck McAfee, Landowner and Community Volunteer,
Retired Electrical Engineer, Montezuma County, Southwest Colorado
Mr. Chairman and members of this subcommittee, I appreciate this
opportunity to share my thoughts with you on the topic of BLM planning
processes.
My grandparents and their 1-year-old son, my father, in-migrated to
Montezuma County in Southwest Colorado 100 years ago. They came west
because their Nebraska farm dried up. In the midst of the drought that
we are currently experiencing, I'm not so sure that they would not
reverse the trek if they were here now.
My grandma, my granddad, and his sisters homesteaded land in
Montezuma County where he began farming by hand-grubbing out the
sagebrush to plant and to harvest crops. They lived in a tent on the
land for a couple of years, through two winters. They hauled water for
themselves and for neighbors. They were tough, hard workers. Dry-land
Pinto beans and wheat were the crops of the day and they remain
important crops now.
My perspective here is that of a long-time resident, third-
generation on the McAfee farm land. BLM is a neighbor. We are governed
locally by an elected board of county commissioners.
I presume that you know more than I do about BLM's Planning 2.0 and
I don't intend to address too many details. My comments come to you
from what I observe, what I know to be true. In this context I'll
address two topics with you today.
First, I'll talk about public participation in the planning
process, including my observations about how that has been going in our
county and how it can be improved.
Second, I'll address the issue of planning around natural landscape
versus political boundaries.
So, public participation in the planning process: I am completely
supportive of enabling as much public involvement as possible, as early
as possible, in planning for public lands. I'm local and I'm concerned.
I'm thoughtful. I do my homework. I take the long view. I'm a life
member of the local chapter of the Rocky Mountain Farmers Union
(probably the oldest member). Our Farmers Union chapter is comprised of
local family farmers, all ages, dryland farmers, farmers under the
ditch, small scale, large scale, sheep growers, cattle men and women--
we represent a diversity of agricultural interests in Montezuma and
Dolores Counties. We understand the relationships among public lands
and agricultural lands. As you can see in the submission from some of
other local farmers, we are both affected by decisions on public lands
and care deeply about them as part of our community.
We want our voices to be listened to and heard. What we think and
what we say can be extremely valuable in gaining a broad view of local
experience, long experience, interests, ideas, and needs relating to
planning and implementation of plans for public lands. How public lands
are managed is vitally important to Ag people as well to everyone else
in a place such as ours where public lands are so prevalent as they are
in Montezuma County.
I fail to understand why some county commissioners are so opposed
to enabling greater public participation. Under Planning 2.0 they will
not give up participation, their voices and authority will not be
diminished by public voices. The whole process will be made richer by
inclusion of public voices, early on. The local elected entities can
view this as an opportunity to be proactive and inclusive, rather than
taking a position that their roles are being undermined. They, of
course, are elected to represent us. Yet that does not translate to us
giving up the right and responsibility of representing ourselves. We
have individual and collective perspective and ideas that go far beyond
the capacity of elected officials to have the whole picture.
And sometimes our elected officials are too busy jockeying with the
BLM about who is in control of our Federal lands to even represent us
at all. The words ``coordinating'' and ``cooperating'' are on the table
much of the time in these exchanges, while we wish the two parties
would get on with actually collaborating for the good of our community.
Recently, BLM started a process to discuss whether a master leasing
plan would be helpful. Our current Resource Management Plan doesn't
really get into the details of how and when oil and gas leasing happens
or development happens, even though we've had a lot of conflict around
that. Instead of engaging in the discussion, our county commissioners
spent a long time refusing to even come to the table--questioning BLM's
motives and authority. Meanwhile, many in our community wanted to have
this discussion, and wished our commissioners would stop obstructing
it.
BLM can and should take the lead in getting through the rhetoric
and getting on with dealing effectively with issues through thoughtful,
transparent collaboration. I know from personal experience that it can
work to great advantage and the public will support such efforts.
Public voices along with input from officials can be very
complementary and valuable if we will let it happen. Giving the public
more input will only make it better.
A tag line on the House Committee on Natural Resources Web page
says ``Empowering People Through Our Nation's Resources.'' What better
way to empower people than to listen to and to hear their voices, their
thoughts, as plans are developed? It's about participation and
transparency.
I also wanted to comment on planning around natural landscape
versus political boundaries: In my view, this is so simple. The natural
landscape and natural resources got here first. Political boundaries
came later, and generally were not established with natural boundaries
in mind. People and agencies charged with the responsibility of
managing natural resources and landscapes need to have the latitude,
and to be held accountable, for planning for the whole picture, the
natural picture. In this way the interests of local farmers and
ranchers and others who depend on these natural resources will be taken
seriously.
A very real example of this is watersheds. Why not make watersheds
be a definer for management units? The reality of watershed health and
water management is a key element to economies and land use in the arid
American West. It makes so much sense to assess, analyze, organize,
plan and manage around natural watersheds rather than dealing with
these realities being confined by political boundaries. It makes no
sense for a watershed management plan to be different on one side of a
political boundary from what it is on the other side. No sense. It's
just natural to be in concert with nature, as those of us who depend on
natural resources do.
If the BLM truly values local stakeholders and the way that we
interact with public lands, it must consider how the people, wildlife
and use of our public lands impact our farms and other private lands.
The BLM can only do this by looking at the lands as a whole and
collaborating with landowners at the landscape-level. This is part of
the reforms that the BLM is proposing to make and local government will
continue to have a strong voice in this common sense way of managing
land.
The reforms to planning that the BLM is proposing seek to provide
more participation and transparency earlier in the process. This means
more participation and transparency for the counties, states, tribes
and even folks like me. As we all care about and manage our land, we
should all agree that more conversation and a better understanding of
how we're having an impact to each other upstream and how we're
impacting each other downstream is better for everybody.
Thank you for listening.
______
Questions Submitted for the Record to Chuck McAfee, Landowner and
Community Volunteer
Questions Submitted by Rep. Dingell
Question 1. Was there anything else you wanted to say or respond to
from the hearing?
Answer. I would like to emphasize that the BLM's Planning 2.0
initiative will only help, and not hinder, state, local and tribal
governments as well as the public participation in land use planning
for public lands. I appreciate Rep. Dingell's acknowledgement of this
fact and support for greater transparency and participation
opportunities through this initiative.
With that, I believe that with my oral testimony, my written
testimony, my responses to Rep. Polis' questions, and the letter from
the Mancos farmers, my comments are complete at this point.
Thank you for the opportunity to provide input into this important
process.
Questions Submitted by Rep. Polis
Question 1. Mr. McAfee, under these new rules, local governments,
like your county, still have special opportunities for participation
but the public will also have more of a chance to give input. In your
experience, is the county always sufficiently focused on representing
its residents? What are the benefits of giving more of a voice to local
residents whose lives are also affected by decisions made on the public
lands? The BLM is proposing a more collaborative, transparent and
democratic process to help navigate the planning process. How, in your
experience, will more up-front engagement improve the planning process?
Can that make it more efficient? Will resulting plans have more
support?
Answer. I have a fundamental belief that a genuine richness of
thought and energy come from listening to ideas from multiple, diverse,
thoughtful individuals and groups, whatever the topic of interest and
discussion. With this as a backdrop, I will address each of the sub
questions posed above by Rep. Polis.
In your experience, is the county always sufficiently focused on
representing its residents?
A specific example that illustrates why I do not believe that the
county focuses adequately on representing its residents has to do with
the BLM's consideration of creating a Master Leasing Plan (MLP) for
public lands in Montezuma County. The intent behind the MLP is a simple
land use planning concept: ensure that oil and gas development occurs
in the least impactful places and protects others as appropriate.
Instead of engaging in the discussion, our county commissioners spent a
long time refusing to even come to the table--questioning BLM's motives
and authority.
Meanwhile, many in our community wanted to have this discussion and
wished that our commissioners would stop obstructing it. Here is a
quote from an article in the Cortez Journal in June 2016: ``Public
comment, totaling 350 pages, has been overwhelmingly in favor of an
MLP, officials report.'' The Cortez City Council voted unanimously to
support creation of an MLP. 25 local businesses attached their name to
a statement supporting MLP.
In spite of this strong local support, the Montezuma County Board
of County Commissioners (BOCC) remains adamantly opposed.
Another example: Several years ago a previous BOCC addressed the
planning and development situation in the Dolores River Valley, along
the East Fork of the Dolores River. They convened a group of local
residents who, over a couple of years, came up with a process called
Transferrable Development Rights (TDRs) to address the issue. Our
current BOCC, at the end of a day-long public forum attended by 120
local residents, where five people spoke in opposition of TDRs and 40
people spoke in favor of retaining the TDR program, suddenly passed a
resolution to eliminate TDRs from the land use code. The County
Planning and Zoning committee spoke to retain the TDRs. Four previous
county commissioners spoke in an attempt to explain the concept to the
current BOCC and to ask them to retain TDRs. The BOCC admitted that
they didn't understand it and simply voted it out. They ignored a day's
worth of thoughtful speakers and 2 to 3 years of thoughtful discussion
and planning by a diverse group of local residents.
To me, these are examples of our BOCC listening to what they want
to hear and dismissing other voices. This is what the BLM seeks to
avoid when they engage in land use planning through the concepts of
greater public participation and input through the Planning 2.0
initiative.
What are the benefits of giving more of a voice to local residents
whose lives are also affected by decisions made on the public
lands?
I believe that the benefits of giving more voice to local
residents, early on, will help create a better, more comprehensive,
more lasting decision and action. The local residents know what is
going on. They know the landscape, how it impacts them, how to work,
live and play with public lands as a neighbor. They know how to address
their needs and interests while helping plan for and tend to the health
and sustainability of the public lands. There is no way that any three
county commissioners can possibly have a comprehensive knowledge or
understanding of how local residents and the communities are impacted
by decisions made on the public lands. They can learn by listening to
local residents. The residents, the public lands, and the community
will benefit when local ideas are sought and voices are included early
on.
How, in your experience, will more up-front engagement improve the
planning process? Can that make it more efficient?
First, throughout my corporate experience with the Hewlett-Packard
Company we engaged employees in the process of visioning and planning.
We all brought great ideas, different perspectives; we brought energy
and commitment; we brought the skills necessary to implement the plans.
We were successful.
Second, I recently became involved in the Cortez Heart and Soul
project, funded by the Orton Family Foundation, with the intent of
learning how to engage all sectors of the community early on in the
process of developing and maintaining a city plan. This was a
deliberate effort to solicit voices from throughout the city population
in the city planning process. So far as I know, no one in the Cortez
city government or administration felt threatened by inviting local
residents to participate from the beginning. They did not argue that
their power was being eroded; rather, they engaged in the process.
The planning process is inherently more efficient because of the
transparency created by upfront-engagement by everyone. There is common
knowledge of the common ground that is being traversed as the plans
evolve. Local residents have perspective and ideas that go far beyond
the capacity of elected officials to have the whole picture.
Will resulting plans have more support?
I believe that it is commonly accepted that people will support
what they help create. They own it when they participate in its
creation, when they know that their ideas have merit and are being
genuinely considered.
I believe that public lands administrators could start their
deliberations by asking themselves a few relevant questions. Such as
``Who else should be at the table? '' ``Who else should be looking at
this? '' They could first tend to clarity, completeness, and
relationships.
Question 2. Mr. McAfee, as someone who's life and livelihood are
unavoidably linked with and affected by decisions made on the public
lands, and specifically by the BLM, can you discuss how planning based
on natural boundaries and for natural resources like watersheds would
better serve you, other farmers and ranchers, and other members of your
community?
Answer. The public lands, all lands, comprise a system. This can be
thought of as a landscape of connections, where occurrences upstream
have consequences all the way downstream. Political boundaries
generally have no association with the system.
Think of the Dolores River watershed as such a system. Both the
East Fork and the West Fork of the Dolores River are in Dolores County
prior to crossing the political boundary (county line) into Montezuma
County. The river doesn't know the difference--it responds to upstream
decisions and then follows its natural constraints and boundaries right
on down. Anything that happens to those streams in Dolores County
carries right on in to Montezuma County. Decisions upstream impact us
all. Ranchers, farmers, municipalities all need to know what decisions
are being made upstream. Those decisions are more sound and effective
when they are made in the context of natural landscape rather than
political landscape.
It makes no sense for a land use plan for a landscape system to be
different on one side of a political boundary than on the opposite
side. I firmly believe that BLM should be encouraged and supported in
its efforts to plan around natural landscape systems. Natural
landscapes existed and functioned long before the modern construct of
political boundaries. We should rethink the way we manage those
landscapes.
Question 3. Mr. McAfee, I have a letter here from a number of local
farmers in the Mancos Valley expressing their support for the
principles of Planning 2.0. The letter talks about how the BLM's master
leasing plan process in the area providing ``opportunities for us to
bring our concerns and vision for our neighboring public lands early on
in the process'' how ``making decisions on how to manage the land
should start from similar concerns for the health of the land as a
whole, including consideration of our farming operations, rather than
driven by political boundaries.'' Can you talk some more about the
farming community in your area, how you've previously engaged with the
BLM and how you see these planning rules improving cooperation and land
management?
Answer. I believe that the letter to which you are referring makes
the points beautifully, regarding living and farming alongside public
lands. What's been happening in this context is that BLM has been quite
transparent in seeking input to help with its MLP decision. This is in
contrast with previous experiences where we the public were presented
with an array of displays that attempted to inform us about the various
options that were being considered. We had little or no background
information, or context. I don't recall seeing anything that spoke to
landscape-level planning or consideration of the health of the land as
a whole.
I know these farmers. They are young, energetic, responsible,
small-scale. They show up and engage with ideas and comprehensive
perspectives. We all, the local residents, will respond positively to
transparency and inclusion just as these farmers have. It's a certainty
that these proposed planning rules and processes will improve
cooperation (we will own the results) and land management (BLM will
have gained great input that otherwise would have been lost).
As I pointed out in my written testimony in July, your Web page
says ``Empowering People Through Our Nation's Resources''. What better
way to empower us than to listen to us as plans are developed? It's
about participation, collaboration and transparency. Working alongside
elected officials and agency employees, we local residents can make a
positive difference.
______
Mr. Gohmert. Thank you very much. I appreciate your
testimony, Mr. McAfee.
At this time, the Chair recognizes Mr. Lyons for 5 minutes.
STATEMENT OF JIM LYONS, DEPUTY ASSISTANT SECRETARY, LAND AND
MINERALS MANAGEMENT, U.S. DEPARTMENT OF THE INTERIOR,
WASHINGTON, DC
Mr. Lyons. Chairman Bishop, Chairman Gohmert, and Ranking
Member Dingell, I appreciate this opportunity to appear before
you today to discuss BLM's proposed amendments to its planning
rules.
As you know, FLPMA was enacted into law about 40 years ago.
The framework for developing and amending BLM's land resource
management plans has changed little in the past three decades
and, in fact, has only been revised slightly. Yet much has
changed in the past 40 years with regard to management and the
use of the public lands.
New uses, such as renewable energy production, are a part
of an expanding variety of public land uses. Conflicts between
users and uses of public lands are increasing, as pressures
mount on rural communities to try to maintain their economic
flow, meet the needs for their economies, and, at the same
time, address the expanding interests of others.
Factors affecting the use and management of the public
lands are going beyond traditional planning boundaries,
resulting in impacts on, as Mr. McAfee said, watersheds,
landscapes, and regions. I think there are plenty of examples
of that today, dealing with fire, invasive species, water
supplies, and wildlife habitat.
The current planning framework has been the source of
frustration for many people, from community leaders, to public
land users, to other stakeholders and, in fact, the planners
themselves. The Bureau has heard many complaints about the
planning process from many of these and, in fact, in 2011
initiated an internal effort to review the planning process. At
that point in time, they recommended the need for change in the
process.
The complaints, again, were many. The process takes too
long, it is not transparent, opportunities for input are few,
and final plans, in the end, do not meet our needs. For these
reasons and for others, the BLM has proposed new rules for
public land use planning that have been in development for a
number of years. These proposed rules are really built on the
foundation of the current planning process, but they represent
a sincere and serious effort to try to address the many
concerns and complaints that have been raised by a wide range
of stakeholders with regard to BLM planning process.
The proposed rules provide for some important improvements
in the planning process, and I will just highlight a few.
First and foremost, the planning rules seek to provide
additional opportunities for input earlier in the planning
process. Through the establishment of an assessment
requirement, actually, before formal planning begins, the
opportunity exists for everyone to provide input into the
process, to share data, information, ideas, ways to identify
and deal with conflicts, and potential areas of agreement as a
foundation for planning.
In essence, the purpose of the assessment is to provide a
common baseline to share information and have everyone bring
their views, perspectives, and resource information to the
table. I would suggest that that in particular can be a
significant benefit to local communities and counties who may
not have the resources to do their own assessments, but can, in
fact, benefit from those assessment reports that are prepared
before the formal planning process begins.
Second, resource management issues are not conveniently
limited to traditional planning boundaries. Unfortunately,
under current rules, no matter how expansive the concern or the
particular need, we are required to do plans within the
existing planning boundaries. So, when a wildfire crosses state
lines, we have to develop plans that fit those particular
circumstances in the current planning process.
Under the proposed rule, the planning boundaries can be
adjusted to the scale necessary to deal with the issues of
concern. This can increase efficiency and effectiveness. It
does not, in any way, negate the importance of local input and
the value of that stakeholder, coordinator, and cooperator
involvement. Nevertheless, it can help us do things in a more
efficient and effective way. The same data analysis can help
inform the planning process and all participants in moving
forward, but dealing with the issue at the appropriate scale,
in an appropriate manner, and hopefully in a much more
efficient and effective way.
Third, the proposed planning rule process actually
reaffirms the unique role the cooperators play in working with
the Bureau and helping with the development of land use plans.
Cooperators can work with planners throughout the process and,
similar to the current process for the engagement of
cooperators, they become a part of the planning team from the
very outset. In fact, many of our people talked about providing
desk space and a chair for representatives who are cooperators
from local and state government. So, cooperators' opportunities
are not negated in any way. In fact, we think they are enhanced
through this more open and earlier planning process.
Now, unfortunately, there is a great deal of misinformation
and, I think, misunderstanding out there with regard to the
Planning 2.0 effort and the BLM's proposed planning rule. We
certainly look forward, Mr. Chairman, to working with all those
who depend upon the public lands or have an interest in their
lands, to try to address these concerns and put together a
final rule that we think will help improve the planning and
management of our public lands. Thank you.
[The prepared statement of Mr. Lyons follows:]
Prepared Statement of Jim Lyons, Deputy Assistant Secretary, Land and
Minerals Management, U.S. Department of the Interior
Thank you for the opportunity to present the views of the
Department of the Interior regarding the Bureau of Land Management's
(BLM) proposed planning rule. The proposed planning rule is part of the
BLM's ongoing efforts to improve the way that the BLM develops land use
plans that guide the management of the public lands administered by the
Bureau as authorized by the Federal Land Policy and Management Act of
1976 (FLPMA).
This proposed new rule is the culmination of over 2 years of
outreach and discussion with state and local governments, communities,
stakeholders, other governmental partners, and the public and reflects
many of the lessons learned and best practices developed over the last
40 years of land use planning. This proposed rule responds to the
recommendations and concerns raised by state and local governments,
stakeholders, and the public to modernize and improve our land use
planning process in ways that make our efforts more collaborative,
transparent, and efficient.
background
The BLM manages 10 percent of the land in the United States and 30
percent of the Nation's minerals. Under FLPMA, the BLM is required to
develop land use plans in partnership with state, local, and tribal
governments, as well as the public, to manage these diverse public land
resources in accordance with the BLM's multiple-use and sustained yield
mission unless otherwise provided by law. BLM land use plans establish
goals and objectives to guide future land and resource management
actions implemented by the BLM.
The regulations governing the BLM's land use planning process are
more than 30 years old. Pressures are increasing on BLM-administered
lands and land managers to better balance often competing and
increasingly conflicting uses of the public lands. The BLM and its
stakeholders, including state and local governments, have also
experienced an increased number of practical challenges, including
unexpected delays, higher expenses, and expanded legal issues in
managing these lands. Resource issues such as invasive species,
wildfire, energy transmission, and wildlife conservation cross
traditional administrative and jurisdictional boundaries making current
planning less efficient and more costly to implement.
State, local, and tribal government officials and representatives
of diverse stakeholder groups have expressed concern about the current
process, stating that they often feel disconnected from the BLM's land
and resource management planning process. We have heard the process
described as one characterized by long waiting periods punctuated by
short periods in which stakeholders have to digest and respond to large
volumes of information. This can be exacerbated by the need to
supplement draft plans that have been in process for years when new
issues are identified or additional information is required late in the
planning process. Delays in BLM planning efforts increasingly consume
BLM staff capacity and resources that could otherwise be spent
addressing critical resource management priorities.
We understand and share many of these concerns. These factors,
combined with the changing nature of the demands on public lands and
the increasingly complex and conflicting issues that result, served as
a catalyst for the BLM to update its land use planning process. The
effort was launched in 2014.
current planning process
The current land use planning process begins with a formal public
scoping process to identify planning issues that should be considered
in the land management plan. The BLM analyzes these and uses them to
develop a range of alternative management strategies.
The range of alternatives is initially presented in a draft
Resource Management Plan (RMP) and draft environmental impact statement
(EIS), in which the BLM must identify a preferred alternative. The
release of the draft RMP and draft EIS is followed by a 90-day public
comment period. Once comments have been reviewed and evaluated, the BLM
revises the draft plan, as appropriate, and then releases a proposed
RMP and final EIS.
Release of the proposed RMP and final EIS initiates a 30-day
protest period for any person who previously participated in the
planning process and has an interest that is (or may be) adversely
affected by the proposed plan. At the same time, the BLM provides the
proposed plan and final EIS to the governors of those states included
in the RMP for a 60-day consistency review period to identify
inconsistencies with state and local plans. After inconsistencies and
protests have been considered, the BLM State Director can approve the
final RMP.
the proposed rule
The proposed planning rule includes some important updates and
improvements to the current process. These changes, consistent with
FLPMA, are intended to: (1) respond to specific, articulated issues
with the current planning process; (2) improve opportunities for state
and local governments, stakeholders, and the public to better provide
input to plans from the outset; and (3) reduce time delays, costs, and,
we believe, the chance of litigation.
For example, the proposed rule would add a requirement for the
development of a planning assessment as a first step. This planning
assessment would provide an opportunity for the BLM, state, tribal, and
local governments, stakeholders, and the public to work together before
any scoping or drafting takes place to better understand the existing
conditions in the planning area, and to identify the types of data and
information that will be necessary during the planning process.
Gathering relevant data and information would be an important part of
the assessment and would improve understanding of key resource issues
and conditions, and other issues in the planning area. During this
phase, participants would also be able to provide early input into
identifying the planning area boundary, and would help identify data to
use during the planning process.
State, tribal, and local government entities would also be invited
to participate as cooperating agencies at this time. The special role
of state, tribal, and local government entities is fully preserved in
the proposed rule, and is discussed in more detail below.
The rule would also add the opportunity for a public review of and
input on preliminary alternatives before the draft RMP is written. We
believe that the production of a planning assessment and additional
opportunities for input into development of the plan alternatives would
help to improve the effectiveness and timeliness of land use plans. We
believe these measures could also reduce delay and the chances of
litigation as concerns and potential conflicts between competing land
and resource users and uses would surface earlier, and opportunities to
address these concerns could be initiated sooner. The need for
supplemental analyses and data gathering would be reduced.
These planning process improvements would provide new opportunities
for public input early in the planning process. However, they would not
change the special status currently afforded to state, local, and
tribal governments. Opportunities for more frequent check-ins with
governments and stakeholders during the development of the draft plan
would also help the BLM identify errors or missing information earlier
in the process.
Under the proposed rule, after an RMP has been adopted and is being
implemented, the BLM would publish a summary report on the
effectiveness of the plan. This summary report would enable state,
tribal, and local governments and the public to track implementation
progress. It would also enable the BLM to determine whether
implementation strategies need to be adjusted, or if the RMP needs to
be amended or revised to more effectively achieve management goals.
The BLM believes that these changes will contribute to a more
efficient and cost-effective planning process that should reduce the
amount of time and resources the BLM would have to spend to develop and
maintain land and resource management plans. The BLM would be able to
react more quickly to address local needs, and amend land use plans in
ways that may be critical to enabling local economies to adapt to
changing circumstances.
affirming the unique role of state, local, and tribal governments in
the planning process
FLPMA, the National Environmental Policy Act, and the proposed rule
provide state, tribal, and local governments a special role in the
BLM's land use planning process. This role is important to the BLM in
ensuring the best quality plans are prepared.
First, FLPMA directs the BLM to coordinate with state, local, and
tribal governments to assist in resolving inconsistencies between BLM's
land use plans and local land use plans, to the maximum extent
consistent with Federal law and the purposes of FLPMA. Specifically,
Section 202(c)(9) provides, in part, that, in the development and
revision of land use plans, the BLM shall:
to the extent consistent with the laws governing the
administration of the public lands, coordinate the land use
inventory, planning, and management activities of or for such
lands with the land use planning and management programs of
other Federal departments and agencies and of the states and
local governments within which the lands are located . . . In
implementing this directive, the Secretary shall, to the extent
the he finds practical, keep apprised of state, local, and
tribal land use plans; assure that consideration is given to
those state, local, and tribal plans that are germane in the
development of land use plans for public lands; assist in
resolving, to the extent practical, inconsistencies between
Federal and non-Federal Government plans, and shall provide for
meaningful public involvement of state and local government
officials, both elected and appointed, in the development of
land use programs, land use regulations, and land use decisions
for public lands, including early public notice of proposed
decisions which may have a significant impact on non-Federal
lands.
Cooperating agencies work closely with the BLM at every stage of
the planning process to identify issues that should be addressed,
collect or analyze data, develop or evaluate alternatives and, of
course, review preliminary documents. This unique partnership is
provided only to governmental entities and helps the BLM develop a land
use plan that is responsive to the needs and concerns of local
communities.
For example, after the public scoping period, the BLM would
collaborate with cooperating agencies to develop a preliminary range of
alternatives and rationales, and to identify the preliminary
procedures, assumptions, and indicators to be used in the analysis. The
BLM would make preliminary versions of these key planning documents
available to state, tribal, and local governments and interested
stakeholders for review. The BLM would use feedback gained from this
opportunity to develop alternatives in the draft land use plan that
more fully address local needs and the concerns and information shared
by various stakeholders during the early stages of the planning
process.
There are no changes to the status or role of cooperating agencies
being considered as part of this draft rule. The BLM is committed to
continuing its collaborative relationship with state, tribal, and local
governments, as it has, consistent with FLPMA.
public participation in development of the proposed planning rule and
after publication of the proposed rule
In 2014, the BLM launched a campaign to garner feedback on the
initial ideas for updating its land use planning rules. The capstone of
that campaign was a series of public listening sessions in Colorado and
California in the fall of 2014. Through that listening process,
stakeholders submitted more than 6,000 written comments; those comments
provided invaluable feedback and formed the backbone for the
development of the proposed rule. The BLM also presented information on
its efforts to improve the planning process and the proposed rule at
multiple stakeholder events, including: the 2014 and 2015 North
American Wildlife and Natural Resources Conference, webinars hosted by
the National Association of Counties, and Western Governors Association
meetings.
Since the release of the proposed rule on February 11, 2016, the
BLM extended the comment period by 30 days in response to requests from
the public; hosted a public meeting in Colorado in March 2016; and
conducted multiple webinar outreach sessions in March and April 2016.
Recordings of all of these events are available for viewing on the
BLM's Web site.
In addition to outreach to the general public, the BLM has had
several conversations with National Association of Counties (NACo)
members and hosted a question and answer session with county and state
governments. The BLM hosted a question and answer session for county
representatives at the NACo Western Interstate Region conference on May
27. Finally, the BLM conducted government-to-government consultation
with federally-recognized tribes and hosted an informational webinar
specifically for tribal representatives in May 2016. Recently, BLM
leadership briefed staff of the Western Governors' Association this
past weekend on the proposed planning rule and answered questions that
they posed.
conclusion
In recent years, the BLM has received valuable feedback from state,
local, and tribal governments, other stakeholders, and the public that
its existing planning process takes too long, is too costly, and is
difficult to follow. We take this feedback seriously, and recognize the
need for improvements in our current planning process. The Planning 2.0
Initiative was developed to assess the strengths and weaknesses of the
current planning process; identify state, local, and other stakeholder
and public concerns, and to develop ``fixes'' for the issues identified
in order to make the BLM planning process more efficient, cost-
effective, and relevant to the issues affecting public land management
today--nearly 30 years since the current planning rules were
formulated. The proposed BLM planning rule incorporates lessons learned
from the development of hundreds of land use plans and feedback
received through numerous public meetings, webinars, briefings, and
conversations over the past 2 years.
Fostering close working relationships with local communities and
increasing transparency and opportunities for state and local
officials, stakeholders, and the public to participate in the planning
process earlier and more often would allow the BLM to develop and
maintain meaningful and effective land use plans. This updated approach
to planning would also allow the BLM to react more quickly to amend
land use plans to better address local needs and changing land and
resource conditions, to enhance local communities' ability to adapt to
changing circumstances, and ensure that the BLM can meet its legal
mandate to manage the public lands for multiple-use and sustained yield
for generations to come.
Thank you for the opportunity to appear before you today to present
the views of the Department of the Interior regarding the Bureau of
Land Management's (BLM) proposed planning rule. I am happy to answer
any questions that you may have.
______
Questions Submitted for the Record to Jim Lyons, Deputy Assistant
Secretary, Land and Minerals Management, U.S. Department of the
Interior
Questions Submitted by Rep. Gohmert
Question 1. Every state has a state forest action plan (FAP) which
was publicly vetted, is regularly updated and which provides guidance
for all ownerships. These plans can be viewed for any state at
forestactionplans.org. (FAPs, which include assessments and strategies,
were mandated per the Farm Bill.) Since these plans provide guidance
for vegetation management--including riparian areas, fuels priorities,
forest insects and disease and fire management across all ownerships,
it would appear that they should be foundational documents in BLM's
planning process.
Why are state forest action plans not specifically mentioned as
primary base documents in BLM's 2.0 planning process?
Do you consider input from state government officials with primary
authority for activities and guidance across all boundaries to have the
same weight as comments from an individual or small NGO?
Answer. While state forest action plans are not specifically
mentioned in the proposed rule, they represent an example of the types
of documents that may be gathered and reviewed during the planning
assessment. The plan assessment process will enhance opportunities for
state and local input by setting the stage for the planning process as
well as enhancing the ability of local governments and other interests
to gather information to help them in their own planning processes.
The existing, proposed, and final rule include provisions for the
special relationship and involvement of cooperating agencies and
coordination with other Federal agencies, state and local governments
and Indian tribes. Specifically, under the proposed rule, to the
maximum extent practical and consistent with FLPMA and other Federal
laws, BLM Land Use Plans must be consistent with those of local, state,
Federal, and tribal governments.
Question 2. During the hearing, Representative Labrador asked if
states other than Idaho have requested the withdrawal or substantive
rewriting of the proposed rule . . .
To this you replied, ``We have heard from a number of states who
are concerned about the rule. [. . .]''
Afterward, Mr. Labrador asked you, ``and have they specifically
made request to just start the process over? ''
To this you replied, ``I would have to check on the specifics,
Congressman.''
Please provide a list of the states below that requested withdrawal
or re-writing of the rule. Specifically include information about what
each state requested and their reasoning for the request.
Answer. The state of Alaska requested that the BLM revise the
proposed rule and allow for an additional public review and comment
period on that revision. Alaska expressed support for the goals of
increased public involvement, efficiency, clarity, and transparency,
but expressed concern that the proposed rule would create delays in the
planning process. Alaska expressed additional concern that the planning
rule would not address issues unique to their state and may further
complicate issues related to subsistence, economic development, and
implementation of other Federal laws including the Alaska National
Interest Lands Conservation Act (ANILCA).
The states of Idaho and New Mexico requested that the BLM withdraw
the proposed rule, contending that BLM did not sufficiently consult
with state governments.
The state of Nevada requested that the BLM amend the proposed rule
to address its concerns that the proposed rule reduced transparency,
diminished the role of coordination with state and local governments,
and should have allowed for more input from western states.
The state of Utah requested that the BLM withdraw the proposed rule
for analysis under NEPA, or amend the proposed rule where necessary to
address concerns regarding coordination of land management with state
and local governments and to ensure the role of cooperating agencies in
planning.
The state of Wyoming requested that the BLM withdraw the proposed
rule because many of the goals the BLM expressed are accomplishable
under existing regulations and suggested that the BLM better clarify
the opportunities for cooperation, coordination, and public involvement
in the planning process.
Question 3. During the hearing, I asked about state's primacy over
allocation and administration of water resources within their
respective borders, ``[. . .] the BLM proposals here indicate the
agency may [. . .] add provisions to its RMPs to increase agency
involvement in water management. Specifically, what aspects of water
management allocation would BLM incorporate into the future in new or
amended RMPs? ''
To this you replied, ``[. . .] I am actually not aware of that,''
and, ``I am going to have to do a little homework and try to understand
where the impression came from.''
Please provide information about what aspects of water management
allocation BLM would incorporate into new or amended RMPs.
Answer. The rule does not indicate or imply that BLM will increase
its involvement in water management and does not discuss water
management allocations. The rule does incorporate language from FLPMA
to identify general management objectives in the planning regulations,
specifically that the BLM manage public lands, ``to protect the quality
of [. . .] water resource[s].'' The preamble to the proposed rule
provided both surface water and groundwater as examples of water
resources for establishing baseline conditions in the planning area as
part of Section 1610.4--Planning Assessment, but it does not increase
agency involvement in water resource management.
Question 4. Please provide specific information about the pilot
program for BLM 2.0, including information about where it was
implemented, any guidelines used to assess its outcome, involvement of
state and local governments in the pilot program, and information about
state and local government reactions to the pilot program pilot
program.
Answer. The BLM has applied some principles of Planning 2.0 in
several new plan revision efforts, particularly the principle of early
and frequent public involvement and planning at appropriate scales.
These new planning revisions currently underway include the Eastern
Colorado RMP, the Missoula RMP, and the Northwestern California
Integrated RMP. The response to these planning efforts has been
extremely supportive. Local governments and the public have expressed
strong support for the upfront engagement of the public during the
planning assessment phase.
Question 5. How is it appropriate for the BLM to employ a NEPA
Categorical Exclusion process for a proposed rule that is controversial
and contrary to the congressional intent and language of FLPMA? Why is
BLM using a CatEx for a rule affecting over 245 million acres of land
and 700 million acres of subsurface mineral estate when the BLM
requires a higher level of NEPA review for much smaller projects, such
as a 1-acre telecommunications site?
Answer. As described in the categorical exclusion documentation for
the rule, the existing and final planning rules are entirely procedural
in character. The BLM believes the categorical exclusion is the proper
form of NEPA compliance for this action under 43 CFR 46.210(i). As
discussed in the documentation, The actual planning decisions reached
through the planning process are themselves subject to compliance with
NEPA's analytical requirements as well as with the statute's public
involvement elements. For this reason, the BLM's reliance upon this
categorical exclusion is appropriate.
Question 6. Has at least one public hearing been held in each state
where the proposed rules would apply? How has your process consistent
with Executive Order 13563 which states that ``regulations must be
based on the best available science and that the rulemaking process
must allow for public participation and an open exchange of ideas.''
Answer. Formal public hearings were not conducted in each state
where the rule would apply. The rule complies with Executive Order
13563. With respect to public participation, the BLM launched the
Planning 2.0 initiative in May 2014 by seeking public input on how the
land use planning process could be improved. The BLM developed a Web
site for the initiative (www.blm.gov/plan2) and issued a national press
release with information on how to provide input to the agency. The BLM
held public listening sessions in Denver, Colorado (October 1, 2014)
and Sacramento, California (October 7, 2014). Both meetings were led by
a third-party facilitator and were available to remote participants
through a live broadcast of the event over the Internet via livestream.
The goals of these meetings were to share information about the
Planning 2.0 initiative with interested members of the public, to
provide a forum for dialogue about the initiative, and to receive input
from the public on how best to achieve the goals of the initiative.
Prior to issuing the proposed rule, the BLM conducted outreach to BLM
partners. Outreach included multiple briefings provided to the Federal
Advisory Committee Act chartered RACs; a briefing for State Governor
representatives coordinated through the Western Governors Association;
a briefing for State Fish and Wildlife Agency representatives
coordinated through the Association of Fish and Wildlife Agencies;
multiple briefings for other Federal agencies; a Webinar for interested
local government representatives coordinated through the National
Association of Counties; and meetings with other interested parties
upon request.
Following publication of the proposed rule, the BLM held one public
meeting in Denver, Colorado (March 2016) and two Webinar meetings. All
meetings were led by a third-party facilitator and were available to
remote participants through a live broadcast of the event over the
Internet or through Webinar access. The goal of these meetings was to
share information about the proposed rule and answer questions from the
public as they prepared their response to comments. During the comment
period on the proposed rule, the BLM also held a Webinar for interested
local government representatives coordinated through the National
Association of Counties. The BLM also held meetings with other
interested parties upon request.
Question 7. Section 202(c)(9) of the Federal Land Policy Management
Act (FLPMA) requires meaningful coordination with counties. County
Leaders represent all of their constituents and must have continued
government to government communications as the FLPMA Section 202(c)(9)
coordination statute provides. Section 202(c)(9) provides counties with
meaningful involvement with BLM as it prepares and conducts significant
Federal actions, such as changing land use plans. Why does the proposed
rule relegate counties to the same stature and status as any non-
government entity (NGO) instead of maintaining their status under
FLPMA?
Answer. FLPMA requires that the BLM keep apprised of state, local
and tribal land use plans and assist in resolving, to the extent
practical and consistent with Federal law, inconsistencies between
Federal and non-Federal Government plans (see 43 U.S.C. 1712(c)(9). The
provisions in the rule that address coordination and consistency afford
state, local, and tribal governments the opportunity to coordinate with
the BLM in the development of resource management plans, with the goal
of increasing consistency between Federal, state, local, and tribal
land use plans.
State, local, and tribal governments that have special expertise or
jurisdiction by law (see 40 CFR Sec. 1501.6 and 43 CFR Sec. 46.230) are
also invited to partner with the BLM in developing resource management
plans as cooperating agencies. In most cases, formal cooperating
agencies have access to preliminary and deliberative draft documents
that are not routinely made available to the public.
Under existing rules, state and local governments that do not
participate as cooperating agencies may review planning documents when
they are made available to the general public with the draft resource
management plan. The rule provides additional opportunities to these
state and local governments to review planning documents including: (1)
the planning assessment report; (2) the preliminary statement of
purpose and need; (3) the preliminary range of alternatives; (4) the
preliminary rationale for alternatives; and (5) the preliminary basis
for analysis.
Question 8. How can the BLM institute ``landscape level planning''
but avoid ``one-size-fits-all'' solutions that do not work due to
variables on the landscape?
Answer. Although the BLM currently uses the field office as the
default planning area, in practice the BLM plans at the most
appropriate and relevant scale for the resource and management issues
being addressed in an individual planning effort. The intent of the
final planning rule is to ensure that the BLM avoids a ``one-size-fits-
all'' approach by considering all relevant scales in its planning
process, rather than defaulting to a field office scale. The BLM would
continue to consider impacts on local conditions and local economies,
as well as impacts at regional and national scales during individual
planning efforts. The BLM believes it is appropriate and necessary for
a deciding official to consider all relevant scales and information
before rendering a decision.
Question 9. Logically, land management decisions should be made at
the level closest to the lands being managed. Will this rule create the
scenario where the BLM Director becomes the deciding official and the
planning activity becomes removed from the local area to be undertaken
by a project team of Washington, DC bureaucrats responsible only to the
Director?
Answer. The BLM will continue to select line-officers who are
highly qualified for any given decisionmaking process. The BLM takes
seriously the responsibility of a line-officer to make well-informed
decisions and consider the impacts such decisions have on the public
and the public lands. The BLM's commitment to qualified and well-
informed decisionmaking will not change under the proposed planning
rule.
Question 10. The current BLM rules contain a definition of
``consistent,'' that the ``Bureau of Land Management plans will adhere
to the terms, conditions, and decisions of officially approved and
adopted resource related plans, or in their absence, with policies and
programs, subject to the qualifications in Section 1615.2 of this
title.'' Why is this definition being removed?
Answer. The rule removes the definition of the term consistent
because the definition is unnecessary as it is commonly used
terminology. Section 1610.3-2 of the rule describes the requirements
for consistency and would require that RMPs be consistent with state
and local plans to the extent practical and consistent with Federal
laws, including the FLPMA.
Question 11. The current rule emphasizes that the impact of BLM
land use decisions ``on local economies, uses of adjacent or nearby
non-Federal lands and on non-public land surface over federally-owned
mineral interests shall be considered.''
Why is the proposed rule written to erode the importance of
protecting local economies and uses on nearby non-Federal lands and
shift the focus to the ``impacts of resource management plans on
resource, environmental, ecological, social, and economic conditions at
appropriate scales.''
Answer. Consideration of resource, environmental, ecological,
social and economic conditions is consistent with the principles of
multiple use and sustained yield and therefore consistent with the
Federal Land Policy and Management Act. Multiple use, as defined in the
Federal Land Policy and Management Act, includes ``the management of
public lands and their various resource values so that they are
utilized in the combination that will best meet the present and future
needs of the American people.'' Consistent with FLPMA, the BLM must
seek to understand the present and future needs of the American people,
and the assessment of resource, environmental, ecological, social and
economic conditions is an important tool to help the BLM understand the
present and future needs of the American people at the local, regional,
or national scale. The rule requires that all values associated with
the management of public lands (i.e., environmental, ecological, social
and economic) be considered, as appropriate, through the planning
process.
Question 12. Section 1610.3-2(b)(4)(ii) of the proposed rule,
Consistency Review: (Page 9705 of the Federal Register Notice) is
proposed to read that ``The Director will consider the Governor(s)'
comments in rendering a final decision. The Director will notify the
Governor(s) in writing of his or her decision regarding the Governor's
appeal. The BLM will notify the public of this decision and make the
written decision available to the public.'' In Planning 2.0, the BLM
proposes to eliminate existing rule language requiring the BLM Director
to accept the recommendations of the Governor(s) if the BLM Director
determines that the recommendations ``provide for a reasonable balance
between the national interest and the state's interest.'' Why is the
BLM no longer seeking to reach a reasonable balance between the
national interests and state or local interests?
Answer. The rule states that the BLM Director will consider the
Governor(s)' appeal and the consistency requirements of this section of
the rule in rendering a decision. The proposed change would reflect
that the BLM Director must consider many factors when rendering a
decision, including whether the Governor(s)' recommendations are
consistent with Federal laws and regulations applicable to public
lands, such as FLPMA.
Question 13. The BLM proposes, in the planning assessment, to no
longer consider ``the estimated sustained levels of the various goods,
services and uses that may be attained.'' Instead, the BLM proposes to
identify ``the various goods and services that people obtain from the
planning area, including ecological services.''
Why is the BLM proposing to change the original purpose and intent
of this section to measure the impact of BLM decisions against the
objectively quantifiable value of tangible goods and services, such as
minerals or timber; that could be lost as a result of the decision and
instead throw in the concept of ecological services, which cannot be
objectively or accurately quantified for comparison?
Answer. Goods and services include a range of values and human uses
of the resources provided by and derived from management of the public
lands. However, determining the value of these goods and services is
difficult and affected by many factors including markets, the state of
the economy, and other variables. Benefits resulting from proper
management of ecosystems, such as flood control from intact wetlands
and carbon sequestration from healthy forests are referred to as
``ecological services.'' Some commodities sold in markets, for example,
forest products resulting from timber production, are more easily
valued. Others, such as wetlands protection and carbon sequestration,
are not commonly valued in the marketplace but do provide tangible
benefits and valuable services (e.g., flood control); they provide non-
market values. The BLM does have guidance based on established
practices for estimating non-market values for ecosystem goods and
services for the purposes of comparison. The language included in the
rule is simply intended to ensure that all goods and services derived
from the proper management of public land resources are identified in
the planning process, beginning with the planning assessment.
Question 14. Why is the BLM proposing to remove from the Planning
Assessment a requirement for the BLM to analyze ``specific requirements
and constraints to achieve consistency with policies, plans and
programs of other Federal agencies, state and local government agencies
and Indian tribes? ''
Answer. The BLM did propose removing this provision of the plan
assessment because at that early stage in the planning process, the BLM
usually does not have sufficient information to identify ``requirements
and constraints'' related to consistency, as the BLM would not yet have
developed management alternatives for the area. Under the final rule,
the BLM would require that as part of the planning assessment for an
individual planning effort, the BLM identify relevant national,
regional or local policies, guidance strategies or plans; in response
to public comment, the final rule includes language identifying that
constraints for achieving consistency would be addressed as planning
issues during the scoping process.
Question 15. Section 1610.4-4 of the existing rule directs the BLM
Field Manager to analyze the management situation. The manager is to
keep multiple use principles in mind as alternatives are formed. As
part of the AMS process, the manager is to consider the degree of local
dependence on resources from public lands.
The proposed rules do away with the Analysis of the Management
Situation and replace this step with the Planning Assessment. However,
in the Planning Assessment, the focus of the assessment shifts from the
concept of multiple use and resource development on public lands to
preserving ``ecological services.''
How is this shift in focus consistent with congressional intent
when FLPMA came into effect in 1976?
Answer. In the planning assessment process in the rule, rather than
consider the ``degree of local dependence on resources from public
lands'' (from existing Sec. 1610.4(g)), the BLM would instead consider
``the degree of local, regional, national, or international importance
of these goods, services, and uses'' (from proposed
Sec. 1610.4(d)(7)(i)). ``Resources'' would be replaced with ``goods,
services, and uses'' to provide a more precise explanation of what the
BLM considers with regard to those resources. The BLM believes that the
use of more precise terminology in the regulations will improve
understanding of this provision. The BLM does not intend for this
change to change the meaning of this provision. The language in the
rule is simply intended to ensure that all goods and services derived
from the proper management of public lands and resources are identified
and considered in the planning process.
Question 16. During one of the recent Webinars associated with the
planning rules; a question was posed whether one has to be a U.S.
citizen to comment on the proposed rules. The answer was no; that
anyone could comment. During a recent RMP process in Utah, there were
approximately 68,000 comments received by the BLM; with approximately
11,000 of those comments being from outside of the country. Is the BLM
willing to include provisions in the proposed rule to somehow give
greater credence to the views of local elected officials and
stakeholders over the views of those with no direct connection to the
land other than responding to a request to submit a form letter on
behalf of a special interest group?
Answer. Under the rule, and consistent with the previous planning
rule, local, state, tribal, and Federal governments are afforded
special consideration not afforded to other general members of the
public such as foreign nationals. Specifically under the rule, to the
maximum extent practical and consistent with FLPMA and other Federal
laws, BLM Resource Management Plans must be consistent with those of
local, state, Federal and tribal governments.
Questions Submitted by Rep. Dingell
Question 1. The Bureau of Land Management's Planning 2.0 initiative
is an impressive undertaking. The proposed regulations will affect
every facet of BLM land use planning and management. The U.S. Forest
Service promulgated a similar rule in 2012, analyzing the many,
significant environmental, economic and effects of the rule in more
than 1,300 pages of environmental impact statements under the National
Environmental Policy Act. How did the BLM decide that its equally
expansive rule was excluded from review under NEPA? Would alternative
analysis under NEPA have helped contribute to stronger proposed and
final regulations?
Answer. As described in the preliminary categorical exclusion
documentation for the proposed rule, the Department of the Interior
categorical exclusion at 43 CFR Sec. 46.210 is applicable to this
action. The existing planning rule is entirely procedural in character
and the amendment of this rule is entirely procedural. The amendment
does not develop or amend any land use plans; any future revisions,
plans or amendments will be subject to NEPA analysis, including
appropriate public involvement, before any decision affecting the
management of the public lands is made. Further, there are no
extraordinary circumstances that would preclude the use of a
categorical exclusion. For this reason, the BLM's reliance upon the DOI
categorical exclusion is appropriate. The BLM planning regulations are
distinguishable from the 2012 Forest Service planning rule, and the
U.S. Department of Agriculture and the Department of the Interior have
different categorical exclusions.
Question 2. In promulgating its similar planning rule, the Forest
Service also heeded direction in the Endangered Species Act to manage
public lands and resources in a manner that contributes to conservation
and recovery of threatened and endangered species and specifically
referenced the ESA in its rule, and even consulted with the Fish and
Wildlife Service and the National Marine Fisheries Service on the
potential of its regulation to support listed species conservation. By
comparison, neither the BLM's proposed rule nor the agency's
description of it even mentions the ESA. How does the agency intend to
improve the final regulation to ensure that it achieves congressional
mandates in the ESA to protect and recover listed plants and animals?
Answer. While not specifically addressed in the rule, the BLM must
comply with the Endangered Species Act, including Section 7
consultation requirements for actions that may affect a federally
listed species or designated critical habitat. Additionally, the BLM
planning regulations establish the procedures for developing and
amending resource management plans and do not approve any land use
plans or plan amendment or authorize any particular projects. The BLM
will continue to comply with the ESA when it completes future
individual planning efforts and will continue to address listed species
during these future planning efforts. For example, under the procedures
for plan development and amendment in the proposed rule, during future
planning, the BLM would identify areas of potential importance through
the identification of potential Areas of Critical Environmental Concern
(ACECs) and other means such as habitat for federally-listed threatened
and endangered species.
Question 3. Was there anything else you wanted to say or respond to
from the hearing?
Answer. Planning 2.0 was developed to respond to concerns and
criticisms of the existing planning process (which had not been revised
for nearly three decades); to respond to state, local, and other
stakeholder and public concerns; and to make the BLM planning process
more efficient, cost-effective, and relevant to the issues affecting
public land management today. The rule will allow the BLM to react more
quickly to amend land use plans to better address local needs and
changing land and resource conditions and ensure that the BLM can meet
its mandate to manage the public lands on the basis of multiple-use and
sustained yield, through a more open, transparent, and inclusive
planning process.
Questions Submitted by Rep. Polis
Question 1. Mr. Lyons, in your view, how does Planning 2.0 increase
the transparency of the BLM land use planning process? How does
Planning 2.0 help to ensure that the draft RMP more closely meets the
expectations of stakeholders? There is no doubt that local input and
concerns are highly important when planning for BLM-managed lands.
Would the BLM's proposed rule take away these special participation
opportunities from states and local governments?
Answer. The rule increases the transparency of the land use
planning process by establishing more frequent check-ins with
stakeholders. These frequent check-ins provide stakeholders the
opportunity to review preliminary documents before they are formalized
and provides the BLM an opportunity to engage in ongoing dialogue with
stakeholders to better understand their needs, concerns, and
expectations. By working closely with stakeholders throughout the
duration of the planning process, the BLM will be better able to
respond to stakeholders.
Question 2. Mr. Lyons, help the committee to understand how
`landscape level' planning allows land managers to better tackle
pressing natural resource concerns at an appropriate scale?
Answer. The rule provides for an open and transparent process;
supports assessment and management at appropriate scales; supports the
use of the best available scientific information in planning; and
applies principles of adaptive management. Key to this process is
developing land use plans at a scale that is based on resource
management concerns and the issues being addressed. We saw this with
sage grouse, whose range covers 11 states and requires a coordinated,
comprehensive, science-based conservation strategy as we developed
leading to a ``not warranted'' decision by the U.S. Fish and Wildlife
Service. Similarly, dealing with invasive species like cheatgrass
across a larger landscape is essential for reducing the risk of
rangeland fire across the Great Basin where it constitutes a
significant threat to ranchers and rural communities.
Question 3. Mr. Lyons, the agency has certainly received a lot of
feedback from stakeholders on the proposal; what is the agency's plan
for incorporating that feedback to help ensure that the final rule
works best for local governments, the public, the agency itself, and
the natural resources the agency manages?
Answer. The BLM received over 400 unique comments from members of
the public, state and local governments, other Federal agencies, and
tribal governments. We analyzed those comments and considered all
suggestions made. As part of the rulemaking effort, we will publish a
response to all substantive comments, along with the rationale for why
we did or did not incorporate suggested changes.
Question 4. Mr. Lyons, we know that things like wildlife, rivers
and people do not just stop at state and field office boundaries but
migrate or otherwise span political boundaries. I'm glad to hear that
the BLM is seriously thinking about common-sense ways to plan for use
and conservation of our public lands rather than rely on political
boundaries.
Question 4a. Can these planning ``landscapes'' be either larger or
smaller areas as needed?
Answer. The rule permits BLM land managers to determine the most
appropriate planning area given the issues and resources that are
affected. That is the most efficacious way of developing plans and
involving all jurisdictions that may be affected by management
decisions on that landscape. Through an open and transparent process,
using the best available scientific information, and informed by a
robust planning assessment, the BLM can determine the most appropriate
planning area for any given set of management issues. While appropriate
planning areas may be larger or smaller than the typical field-office
boundary, in considering the resources needed to conduct effective land
use planning, it is likely that the BLM will more often conduct
planning at a field office or larger scale.
Question 4b. How will local expertise and input be integrated into
landscape level planning?
Answer. Under the rule, the BLM would add several new opportunities
for the interested citizens and stakeholders to engage with the BLM
during the planning process, including development of a (1) planning
assessment; (2) preliminary statement of purpose and need; (3)
preliminary range of alternatives; (4) preliminary rationale for
alternatives; and (5) preliminary basis for analysis. At each of these
stages, individuals with local expertise would be invited to provide
input either as a cooperating agency (if an eligible governmental
entity) or through public involvement opportunities during these stages
of the planning process.
Question 4c. Can you discuss some of the ways that this landscape
level planning would benefit the public lands?
Answer. The BLM manages a diverse range of natural resources, which
occur at an equally diverse range of scales, and it collaborates with a
diversity of partners, stakeholders and communities who work at
different scales. For these reasons, the BLM planning process must
enable consideration of issues and opportunities at multiple scales and
across traditional management boundaries. Some of the management
concerns that may benefit from a landscape approach to decisionmaking
include those that cross traditional administrative boundaries, such as
wildfire, wildlife, water resources, energy development, and
transmission.
Question 4d. And how it would provide for more meaningful input
from stakeholders invested in the management of public lands?
Answer. The rule increases opportunities for meaningful public
involvement in several ways. First, during the planning assessment, the
BLM must gather and consider public input before initiating formal
planning. This provides local citizens and stakeholders with the
opportunity to engage at the very beginning of the planning process--
before issues are identified or alternatives are considered. The rule
also establishes new opportunities for stakeholders to review
preliminary planning documents prior to the formal public comment
period for a draft plan or draft amendment. These new steps afford the
public additional opportunities to track the BLM planning process as it
develops and would provide them with more time to review preliminary
documents before drafts are issued. The BLM believes that these new
opportunities will promote meaningful involvement in the planning
process by increasing the transparency of the process.
______
Mr. Gohmert. Thank you, Mr. Lyons.
At this time, Ms. Clarke, you are recognized for 5 minutes.
STATEMENT OF KATHLEEN CLARKE, DIRECTOR, UTAH PUBLIC LANDS
POLICY COORDINATING OFFICE, SALT LAKE CITY, UTAH
Ms. Clarke. Chairman Bishop, Chairman Gohmert, Ranking
Member Dingell, and members of the subcommittee, I am honored
to be here today and want to thank you for this opportunity. I
am here today to voice my strong opposition to BLM Planning
2.0. I come to my position based on my 30-plus years of
experience with public land issues, and also having served as
the Director of the BLM for 5 years.
It is my sincere belief and my experience that BLM planning
is most effective and durable when the BLM works side by side
with counties and states to understand land management
challenges and opportunities.
When I was at the BLM, I felt so strongly about this
partnership that I made a point of creating a BLM rule that
mandates a rigorous, cooperative engagement with state and
county officials. State agencies bring data, expertise, and a
history with the land that BLM does not have. In my opinion,
BLM Planning 2.0 will fundamentally undermine the role of state
and county governments in their planning.
Although the official position of the BLM and the
Department is that the planning rule will not impact the BLM's
relationships with cooperators, in practice, I believe that the
rule, as proposed, will significantly marginalize the role of
cooperators and dramatically diminish their influence.
The BLM proposes a shift in planning philosophy toward
landscape scale management. Planning areas will not be fixed as
they are now, but may be arbitrarily designed by BLM officials.
For example, such a policy, if adopted, could lead to a
Colorado plateau resource management plan that would include
three or four different states or portions of those states.
This sort of multi-state management will force the BLM to
juggle consistency with several different policy positions of
multiple governors. I believe this proposal will prevent the
kind of close coordination that was envisioned by Congress when
they enacted FLPMA; and the biggest losers from this proposal
will be state governments and the landscapes themselves, which
require highly localized and fine-tuned management.
Right now, I have a very strong relationship with the BLM
Director acting in Utah, Jenna Whitlock. It is troublesome to
me that BLM Planning 2.0 would diminish her decisionmaking
authority, or at least it could, because it creates some
ambiguous role for a deciding official, which does not have to
be someone who has worked in or is familiar with the state.
The BLM also proposes a similar dilution of the role of its
field managers, which right now are closely aligned with county
commissions. They work together as partners, not as
adversaries. This vague shift in policy power could possibly
bring someone in to make decisions that has no experience with
the land and does not understand the culture or the land of the
state of Utah.
Another very troubling matter is this planning assessment
business. The problem is that the BLM does not propose any
additional coordination with state or elected officials. Under
the proposed rule, state and local governments would have the
very same role during the planning assessment as environmental
organizations, special interest groups, and the general public.
If unelected special interest groups have an equal seat at the
table during the planning assessment, the role of state and
local government as cooperators will inherently be diminished.
Key decisions and directions will likely have been set before
cooperating agencies ever have a chance to sit down with the
BLM and work through their particular concerns.
The BLM says it wants to better understand public values,
but it is interesting that it then chooses to ignore the fact
that the citizens within the given jurisdiction have elected
their leaders to faithfully represent their values and protect
their interests. They are the voices of the public opinion and
the public interest. They are elected by a majority of their
voters to comply with both the letter and the spirit of the
law. I think BLM needs to modify this significantly.
I believe this has the potential to undo many good
relationships which are so important in the West, and we would
ask the BLM to withdraw the rule and to work closely with
cooperators if they feel, indeed, a need to modify it. Thank
you.
[The prepared statement of Ms. Clarke follows:]
Prepared Statement of Kathleen Clarke, Director, Utah Public Lands
Policy Coordinating Office
Chairman Bishop, Chairman Gohmert, Ranking Member Dingell, and
members of the subcommittee, I am honored to be here and thank you for
this opportunity.
I am here today to voice my strong opposition to BLM Planning 2.0.
It is my experience that BLM planning is most effective and durable
when the BLM works side by side with states and counties to understand
land management challenges and opportunities. When I was at the BLM, I
felt so strongly about this that we developed a rule that mandates a
process for rigorous cooperative engagement with state and county
officials. State agencies bring data, expertise, and a history with the
land that the BLM doesn't have. County commissioners are able to
articulate the interests of the people they have been elected to
represent. While the system is not perfect, Utah has many examples of
truly effective cooperation between the BLM and state and local
governments that has resulted in workable compromises and practical
solutions that are good for both the land and the people.
In my opinion BLM Planning 2.0 will fundamentally undermine the
role of state and county governments in BLM planning. Although the
official position of the BLM is that the planning rule will not impact
the BLM's relationships with cooperating agencies, in practice, I
believe that the rule as proposed will significantly marginalize the
role of cooperators and will dramatically diminish their influence. Let
me share with you a few examples.
The BLM proposes a shift in planning philosophy toward what it
calls ``landscape scale management.'' This is planning on a large scale
that may extend across state borders. Planning areas will not be fixed
as they are now, but will be established arbitrarily by BLM officials.
For example, such a policy, if adopted, could very well lead to a Great
Basin Resource Management Plan that includes portions of both Utah and
Nevada. Or it could lead to a Colorado Plateau Resource Management Plan
that includes three or four different states. This sort of multi-state
management will force the BLM to juggle consistency with several
different state land use plans. It will have to consider and respond to
different policy positions of multiple governors. I believe that this
proposal for multi-state landscape management will prevent the kind of
close coordination between an individual state and the BLM that
Congress envisioned in FLPMA. The biggest losers from this proposal
will be state governments and the actual landscapes, which require
highly localized and fine-tuned management.
Utah possesses an incredibly diverse array of small, unique
landscapes. They need specialized attention from the BLM. To be
successful, land management must offer a plan for stewardship,
monitoring, and funding for land treatments. Effective management plans
require local input and expertise, not one-size-fits-all directives for
large multi-state areas. BLM planning should encourage greater
specification for small landscapes contained within a single state.
Without the engagement and buy-in of state and county elected officials
in BLM planning, support for BLM plans will be diminished and success
compromised.
BLM 2.0 also proposes to weaken the role of its own State Directors
and Field Office Mangers. Currently, the Utah BLM Director has broad
decisionmaking authority within the state, which allows for strong
partnerships with state elected officials and their representatives. I
have a very positive relationship with the BLM's Acting State Director
in Utah, Jenna Whitlock. I see her often and we communicate regularly.
This close association has allowed both of us to understand the
different sides of a problem, make compromises, and resolve difficult
issues resulting in win-win solutions. Unfortunately, BLM Planning 2.0
could strip BLM State Directors of much of their decisionmaking
authority, putting it in the hands of what the BLM calls ``deciding
officials.'' These deciders could be anyone, such as a bureaucrat in
Washington, DC or some other third party brought in for a specific land
use plan. There appears to be no requirement that the deciding official
live in Utah or have real life experience with Utah lands or culture.
The relationship of trust that currently exists between BLM state
directors and state elected officials will be fractured as more BLM
decision are made by BLM with employees with no ties to affected
states.
The BLM proposes a similar dilution to the role of its field office
managers. Currently, the boundaries of most BLM field offices closely
align with county borders. This facilitates effective cooperation
between BLM field office managers and county commissioners. I know
county commissioners who consider local BLM field office managers and
staff to be personal friends. They meet often and resolve issues as
partners, not as adversaries. But under BLM Planning 2.0, field office
managers may be relegated to the side-lines, making room for what the
BLM calls ``responsible officials.'' This vague policy could shift
decisionmaking power to far-removed BLM employees who have no history
with the planning area and will never experience the real-world impact
of his or her decisionmaking. The BLM should withdraw this proposal so
as to not impair these critical relationships between state directors,
field office managers, and elected state and county officials.
Another very troubling matter proposed in BLM 2.0 is the
introduction of a new step in the agency's planning process. They call
this step the ``Planning Assessment.'' The BLM purports that this
``planning assessment'' will ``help the BLM better understand public
values.'' The ``planning assessment'' will include open public meetings
at the very beginning of a planning process. The problem is that the
BLM doesn't propose any additional coordination with elected state or
county officials. Under the proposed rule, state and local governments
would have the same role during the ``planning assessment'' as
environmental organizations, special interest groups, and the general
public. If unelected special interest groups have an equal seat at the
table during the ``planning assessment,'' the role of state and local
governments as cooperators will inherently be diminished. Key decisions
and direction will likely have already been set before cooperating
agencies ever have a chance to meet privately with the BLM.
The BLM says that it wants to better understand public values, but
chooses to ignore the fact that the citizens within a given
jurisdiction have elected their leaders to faithfully represent their
values and protect their interests. Elected officials rightly represent
the values of the majority of voters in their jurisdiction, not the
values of the loudest, most well-funded interest groups. To comply with
both the letter and the spirit of FLPMA and NEPA, the BLM must provide
for formal coordination with state and local governments from the very
beginning of its planning process.
FLPMA explicitly requires that BLM plans be consistent with local
land use plans, policies, and programs. Unfortunately, the BLM's
proposed rule requires the BLM to be consistent only with ``official
approved or adopted land use plans'' of state and local governments,
and allows the BLM to disregard land use ``policies and programs'' of
state and local governments. This proposal is illegal as it is a clear
violation of FLPMA. Not all counties have ``officially approved or
adopted land use plans,'' and the BLM cannot ignore the consistency
requirements in FLPMA merely because a county has a land use
``program'' or ``policy'' instead of an official ``plan.'' Utah is
rapidly working to create official land use plans in all of its
counties, but this proposal could do great damage to rural counties all
across the West that lack the resources to create official land use
plans.
conclusion
BLM Planning 2.0 has the potential to undue much of what currently
works in BLM planning, and opens the door to a host of other problems
and conflicts. We ask that the BLM withdraw the proposed rule and work
with their legally identified cooperating agencies to consider a new
rule that enhances state and Federal cooperation and trust.
Thank you.
______
Questions Submitted for the Record by Rep. Gohmert to Kathleen Clarke,
Director, Utah Public Lands Policy Coordinating Office
Question 1. During the hearing I asked ``if you have specific
instances that you can find where the rules have worked a hardship,
then let us know those. Please send us those in the days ahead,'' in
regards to rules promulgated by the BLM.
Please list specific instances where rules promulgated by the BLM
have led to compliance hardships for either state, local, or municipal
officials.
Answer. It was a privilege to testify before the members on the
``State's Perspectives on BLM's Draft Planning 2.0 Rule.'' As a follow
up to my testimony, you had asked that we provide specific examples of
BLM's regulations that have caused a hardship to the state of Utah
(State). I have chosen a few specific examples that are discussed in
detail below. However, there are multiple examples of practices and
regulations enacted by the BLM's Washington, DC office that have
harmed, and will continue to harm, Utah's wonderful economy and
lifestyle. The practices identified below, however, highlight the
ongoing practice of the BLM to usurp local control of resources and
authority, unlawfully and unilateral ignore congressional mandates of
multiple-use and sustained yield. They continue to illegally implement
practices that result in a preservation of resources, in lieu of
allowing for use and conservation of resources, as intended by
Congress. If you have any questions with regards to my testimony, or if
you would like me to further highlight other BLM rules, regulations,
and practices that harm the State and our citizens, I will provide such
upon request.
I. Sage-grouse Land Use Plans
In 2015, the BLM developed land use plans (Land Use Plans) to
manage the greater sage-grouse in Utah, and across the West. The Land
Use Plans, developed and finalized by the BLM in September, 2015, have
and will continue to cause unnecessary regulatory burden and hardship
on the State. The Lands Use Plans have resulted in economic
uncertainty, administrative delays, and setbacks, and utilize tools and
ideas that are not based on local and relevant scientific research and
known management practices.
Since 2006, Utah has invested over $50 million dollars into greater
sage-grouse conservation, management and research. In 2013, after much
collaboration with stakeholders, including the BLM, the State approved
a revised comprehensive conservation plan for sage-grouse (State Plan).
The State Plan protects core sage-grouse habitat, known as Sage-grouse
Management Areas (SGMA), on over 7.5 million acres across the State.
The goal of the State Plan is to conserve 90 percent of the State's
greater sage-grouse habitat and approximately 94 percent of the
population. The State Plan builds on the legacy of utilizing state
biologists, university researchers, land managers, local working groups
and Federal partnerships to manage sage-grouse. To date, the State has
enhanced and restored more than 620,000 acres of sage-grouse habitat,
protected over 25,000 acres of habitat using conservation easements and
land transfers since 2013, and most importantly, has increased sage-
grouse populations by at least 56 percent.
The economic impacts to the State, from the Land Use Plans, are
very clear. The BLM's Land Use Plans specifically regulate over 2.5
million acres in Utah for a species that is not federally protected
under the Endangered Species Act. Currently, almost $3 billion dollars'
worth of economic activity occurs annually in Utah within sage-grouse
habitat. Over 13,071 Utahans depend upon energy development or resource
use and extraction on public and private lands in sage-grouse range as
their livelihood. The work by those Utahns results in approximately
$830.9 million in earnings. Coal, oil, natural gas, renewable energy
and other mining activities within Utah's sage-grouse range account for
$224 million in earnings annually. Similarly, livestock production on
private, state and Federal lands in sage-grouse range accounts for
approximately $52.9 million in earnings. The financial harm and burden
resulting from the Land Use Plans will ultimately harm Utah's local
economies. Just a few of the most noticeable economic impacts from the
Land Use Plans include:
Limited oil, gas, and mining on Federal lands. The BLM's Land Use
Plans do not allow for any new oil, gas, or mining operations to occur
on Federal lands within areas designated as Sage-brush Focal Areas.
However, most of these Sage-brush Focal areas do not actually have
sage-grouse populations. In areas designated as Priority Habitat, new
development of oil, gas and mining resources is severely limited. For
example, the BLM has created an arbitrary disturbance cap which limits
disturbance in areas designated as Priority Habitat from oil, gas,
mining and other uses into a 3 percent cap. When the cap is met, no new
disturbances will be allowed. Further, if the BLM leases any new oil
and gas mineral leases in Priority Habitat, the development will be
subject to no surface occupancy (NSO) stipulations, with limited
exceptions. Similarly, any development in areas known as General
Habitat will be modified with specific mandates and measures, including
mandates such as NSO, and controlled surface use and timing limitations
will be implemented to further limit disturbance.
Wind Energy Development is severely restricted. The BLM will not
allow any new wind energy development projects to be permitted or occur
in Sagebrush Focal Areas or Priority Habitat. Limited wind energy
development in General Habitat may still be authorized.
New solar Energy development will become non-existent on Federal
lands. The BLM has decided to exclude new solar development on any
areas designated as sage-grouse habitat on Federal lands. The BLM has
stated that solar energy will not be permitted in any sage-grouse
habitat on Federal lands in all Sage-brush Focal Areas.
Land Use Plans will result in the modification or termination of
certain grazing permits on Federal land. The BLM and the Forest Service
are currently re-evaluating every grazing allotment on BLM lands and
reviewing the potential to modify the terms on 567 grazing permits in
Utah (389 BLM and 178 USFS), encompassing over 5 million acres.
Constraints on new recreational development. The Land Use Plans
state that no new recreation facilities will be developed in Sagebrush
Focal Areas or priority habitat. Further, the plans note that only
minimal new recreational development will occur in general habitat but
only after receiving special permit to recreate.
It is clear that the practices identified above, are harmful to the
State's economy, especially in a state where over 50 percent of the
land is under Federal management and control. These Land Use Plans have
created economic uncertainty and hardships on the State and violate the
multiple-use mandates identified and embraced in FLPMA.
In addition, the plans have created huge administrative delays and
burdens. The local BLM field offices have been unable to take action or
make decisions because they are waiting on top-down direction from
Washington, DC. The Land Use Plans are complicated, create a new layer
of bureaucracy, and instruct BLM employees with jurisdiction over areas
within sage-grouse habitat to prioritize their time, efforts, and
budgets on matters relating to sage-grouse.
In conclusion, the Land Use Plans for sage-grouse are a prime
example of unnecessary and burdensome regulations being developed and
implemented by the BLM. The BLM needs to adopt and embrace the Utah's
Plan for the Conservation of Greater Sage-grouse. The State Plan has
worked and will continue to work to conserve sage-grouse.
II. Wild Horse and Burro
The BLM's purposeful failure to manage wild horses and burros in
Utah is a harming Utah's rangelands, wildlife and water resources and
impacting livestock producers throughout the state. Currently there are
an estimated 5,440 wild horses and 400 burros in Utah. The BLM's
failure to remove excess horses in Utah has left us with nearly three
times as many horses as should be on its lands.\1\ The BLM needs to
take action to manage horses at the appropriate levels which includes
removing horses, when necessary, to protects Utah's ecological
resources.
---------------------------------------------------------------------------
\1\ See News Release No. WO2016, Wild Horses and Burros on Public
Rangelands Now 2.5 Times Greater than 1971 when Protection Law was
Passed (May 11, 2016).
---------------------------------------------------------------------------
The current levels of wild horses and burros on Utah's rangelands
is not ecologically sustainable. By continuing to allow horses and
burros to exceed sustainable levels, the BLM is placing in jeopardy the
future of wildlife, rangelands, and livestock operations in Utah, not
to mention harming the long-term survival of the horses and burros
themselves. The focus of the BLM Wild Horse and Burro program should
revert to its original purpose and stated goal of achieving appropriate
management levels in Utah. Last year the BLM only removed 123 excess
horses from the range. The BLM's ongoing practice of not removing
horses is creating economic hardship and harmful ecological impacts
that may not be reversed for decades.
Direct removal of horses and burros from impacted regions will aid
in maintaining the minimum management levels being achieved while
simultaneously reducing their impact on the supporting ecosystem. The
BLM's current Budget Proposal seeks to only remove a minimal amount of
wild horses and burros from Utah's rangelands. We are concerned with
the lack of urgency of the BLM in managing their wild horse and burro
populations. With a growing level of conflict and the inaction by the
BLM to meet their management obligations and bring horse and burro
numbers to appropriate management levels, the State has asked for
better management and removal of wild horses. Rather than tackle this
difficult challenge, the BLM has chosen to put the burden of wild horse
management on the livestock producers and tax payers within the State.
This practice is unacceptable and must be changed.
III. Coal Leasing Moratorium
The BLM's recent actions to stop new coal development on Federal
lands threatens the viability of several major coal mine expansion
projects in Utah. The BLM, under the direction of the Secretary of the
Interior, Sally Jewell, and in concert with President Obama's Executive
Order is currently reviewing the Federal coal program and placing a
long-term moratorium on new coal leasing and development on public
lands while the review is underway.
The BLM's coal leasing moratorium is a rushed and uninformed
political decision that threatens Utah's coal industry and the many
benefits that industry provides. Coal generates 76 percent of Utah's
electricity and helps employ more than 45,000 men and women across the
state. In Carbon County alone, 8 out of 10 jobs in the county of 17,000
come from mining and power plants. In the event coal mines in Carbon
County are closed, thousands of families will be displaced and without
work. Similarly, hundreds of people lost jobs in Carbon and Emery
County last year when a coal plant and coal mine closed due to, among
other things, onerous Federal regulations.
The Coal Moratorium has recently halted the expansion of a mine in
southern Utah, near Alton. The mine's management worked together with
the State and the BLM to identify ways that coal mining could continue
while mitigating for environmental impacts through the use of
compensatory mitigation tools. However, after working for months on a
mitigation plan with the State and BLM, and submitting an emergency
application to expand the mine during the Coal Moratorium, the
application was denied. This failure to allow needed responsible
expansion is unnecessary and another prime example of ridiculous and
burdensome regulations harming the state of Utah and its citizens.
IV. ``Wild Lands''--Unlawful Designation of Wilderness
An additional practice that has created a hardship for the State is
the BLM's designation of ``wild lands'' within the State. On December
22, 2010, Ken Salazar issued Secretarial Order 3310 (the BLM issued its
manuals shortly thereafter). Order 3310 created a new public land
designation--``wild lands'' that superseded existing land use
management plans and created additional steps in the implementation of
land management decisions. In essence, the BLM began managing ``wild
lands'' as ``de facto'' wilderness in violation of the BLM's rulemaking
procedures, Federal laws, and wilderness study areas designation
process.
Under ``wild lands,'' at least 6 millions of acres in Utah could be
set aside, preserved, and managed as ``de facto'' wilderness. The
ongoing preservation mentality, coupled with the failure to allow for
multiple-use, development, and access into areas designated as ``wild
lands'' is a burden on the state. Further, the unilateral action to
designate lands as de facto wilderness, creates a lack of trust,
displaces the roles of state and local government and displaces
necessary economic development and utilization of precious resources
within the State. Due to the hardships and issues surrounding the
``wild lands'' designations, the State filed suit in Federal court
challenging the BLM's actions.
Please direct any other written questions regarding this
correspondence to the Public Lands Policy Coordinating Office, or call
to discuss any questions or concerns.
______
Mr. Gohmert. Thank you, Ms. Clarke. At this time, the Chair
recognizes the Ranking Member, Mrs. Dingell, for 5 minutes.
Mrs. Dingell. Thank you, Mr. Chairman, for your
extraordinary courtesy. You are a true gentleman, and I love
working with you.
So, enough of that this morning. Can I ask unanimous
consent to submit for the record a letter in support of
Planning 2.0 signed by Trout Unlimited, the Teddy Roosevelt
Conservation Partnership, and the Rocky Mountain Regional
Center?
Mr. Gohmert. So ordered.
Mrs. Dingell. Thank you.
[The information follows:]
Sportsmen for Responsible Energy Development
July 6, 2016
Hon. Neil Kornze, Director
Bureau of Land Management
1849 C Street NW
Washington, DC 20240
Re: Sportsmen Support for Planning 2.0
Dear Director Kornze:
Sportsmen for Responsible Energy Development (SFRED) is a coalition
led by the Theodore Roosevelt Conservation Partnership, National
Wildlife Federation and Trout Unlimited and is made up of more than
1,500 businesses, organizations and individuals dedicated to advancing
federal policy and practices that ensure responsible energy development
on public lands. Our members have extensive experience engaging in the
Bureau of Land Management's (BLM) Resource Management Plans (RMPs)
across the West and we can affirm that the agency's current planning
process needs to be modernized. We strongly support the BLM's approach
to improve land use planning through Planning 2.0 and urge you to see
the rulemaking process through to completion.
Successful BLM land use planning includes early and frequent
communication with the public. Under the current process, the public
submits comments at the scoping period, those comments seem to
disappear into the hands of the agency, and years later the BLM comes
back with a proposed draft RMP. The public then submits comments on the
draft RMP and the BLM disappears for another year or more before
issuing a proposed final RMP. This long timeline with little
communication from the agency makes it difficult for the public to
remain interested in the process, and the lack of transparency makes
people question how and if their comments are being used. The current
BLM planning process is cumbersome and outdated, generating some of the
frustration that people are voicing towards federal lands management in
general.
Planning 2.0 is focused on fixing these problems by increasing the
transparency of the land use planning process by adding three new steps
to land use planning: the envisioning process, plan assessment, and
preliminary alternatives. These added steps would enable the public to
provide information about the planning area before the agency begins
considering how the lands should be managed and allow the public to
consider the plan's direction and provide feedback before the draft RMP
is formally proposed. These additional steps would help to maintain
increased public interest in the planning process by providing a
continuum of public involvement and help to ensure that the draft RMP
more closely meets the expectations of stakeholders.
These additional steps to the land use planning process should be
supported by everyone who wishes to see the BLM work more closely with
the public to develop land use plans that more closely meet the
expectations of multiple stakeholder groups.
We also support the BLM's proposal to revise RMPs at the landscape
level, such as across multiple BLM Field Offices at one time. Right
now, land use plans are created along artificial jurisdictional
boundaries, often at the Field Office level of the BLM within a
particular state. Land managers have come to recognize that because
resources like mule deer and steelhead don't stop and turnaround at the
BLM Field Office line, neither should land use plans. The BLM planning
rule proposal to revise RMPs at the landscape level, such as across
multiple BLM Field Offices at one time, makes common sense. By
integrating landscape level planning into BLM management, the agency
should be able to better care for fish and wildlife species that
migrate and depend on different habitats throughout the year.
We also believe that the BLM Planning 2.0 process creates an
important opportunity to incorporate modern management tools into land
use planning to better balance demands between multiple uses and to
conserve important resources important for fish, wildlife and
sportsmen. These tools include master leasing plans, migration corridor
protection tools, and backcountry conservation areas.
All of these changes would be achieved while simultaneously
increasing the number of opportunities for cooperating agencies and
decision makers to engage in the land use planning process. As you
likely know, elected county officials located in all three areas where
the BLM is implementing early adopter plans under the principles of
Planning 2.0 (Missoula RMP, Eastern Colorado RMP, and Northwest
California Integrated RMP) have endorsed the BLM's proposed changes to
the planning process. This support demonstrates that the local elected
officials who are closest to the rule understand its importance in
better involving the public in land management decisions and improving
the management of BLM lands across the West.
Finally, we appreciate extensive public outreach and that has
culminated in the draft rule. For over two years, the BLM has sought
and received input from a multitude of diverse stakeholders, employing
public meetings, webinars and taking public feedback. During the
comment period for the draft rule, many valid points have been raised
and we urge you to finalize the rule in a way that works for the
general public, cooperating agencies, the agency itself and the public
lands and resources that the BLM is charged with managing.
While we have provided some specific recommendations for improving
the planning rule in our formal comments, we believe Planning 2.0 is an
important process that must move forward to completion. Thank you for
your consideration of our request.
Sincerely,
Kathleen C. Zimmerman,
Policy Director, Public Lands,
National Wildlife Federation,
Denver, Colorado.
Joel Webster,
Director, Center for Western Lands,
Theodore Roosevelt Conservation Partnership,
Washington, DC.
Corey Fisher,
Senior Policy Director, Public Lands.
National Wildlife Federation,
Sportsmen Conservation Project,
Missoula, Montana.
______
Mrs. Dingell. Mr. McAfee, I continue to be surprised by the
criticism that adding more opportunities for public involvement
to the planning process is a bad thing. I was really touched by
your testimony this morning--specifically, we have heard that
the voice of elected officials in the planning process should
be elevated above the voices of Americans that want to provide
direct feedback to BLM, the idea that elected officials
represent the people and can therefore speak better for them on
BLM planning issues. But you mentioned a specific situation in
which the opposite was true. Your local elected representatives
were refusing to even talk to BLM about a proposed master
leasing plan in your area. Can you give us a brief explanation
about why a master leasing plan was needed in this situation?
Mr. McAfee. First, let me thank my colleagues for teaching
me how to push the button.
[Laughter.]
Mr. McAfee. The management leasing plan process is one that
is underway, right now in the very early stages, to determine
whether or not there should be one. That is the major issue
that is on the table. It has not been determined that there
will be one. The reason for thinking about that is that the
resource management plan for the areas of concern in Montezuma
County are not specific enough to really protect some things
that everybody agrees should be protected.
For example, there is a world-class biking area, called
Phil's World, very near Cortez that is contiguous to BLM land;
it lies on BLM land, as well as private and state land. That
could be under severe risk if we don't have some way to know
what is coming down the road with leasing; and everybody,
including the county commissioners, agree with that.
The problem is that the county commissioners don't
recognize that the resource management plan does not really
protect it. They believe that that could be easily changed and,
for reasons that I don't understand, they are opposed to an
MLP. There has been a process to provide public input into that
decisionmaking, and a lot of people have showed up, hundreds;
and I believe that at this point in time the preponderance of
input into that question is 10 to 1 in favor of doing an MLP.
Yet, the commissioners really do not recognize that kind of
public interest.
That is why I believe that the process can be a lot better
by listening to us, because we do our homework and we know what
we need.
Mrs. Dingell. We have just a short bit of time here; so, in
your opinion, were your representatives doing their job of
representing your voice when they refused to come to the table
with BLM about the master leasing plan?
Mr. McAfee. The simple answer is no, because they backed
away from that and did not want to participate in it. One of
the beginnings of the process was for them to select community
members to be on the study group. They refused to select
community members, and then community members decided to select
themselves and applied to be on that.
And suddenly, our commissioners discovered that they were
being left aside, and so they did step up and start to select
members for that. But that was a case where they thought, by
withdrawing and not doing anything, they were going to be able
to retain power. Instead, they lost power and they lost
credibility.
Mrs. Dingell. So, quickly summarizing, you are saying that
your voice is currently not represented by your elected
officials, and that they are actively advocating for things
that you are saying that the majority of the community does not
want. That sounds like a pretty good argument for maximizing
the voice of everyday Americans in the BLM process.
Do you think more public input in the master leasing plan
process would have benefited this situation? How could the
public have helped move this process along? And you have 30
seconds.
Mr. McAfee. The public has been engaged because of the fact
that they have come to the steering committee with input. What
that has done is caused the steering committee to have to back
off, and they have not made a decision yet as to what they will
recommend.
So, it is clear to me that: (a) we were not represented by
our county commissioners; and (b) at a higher level, at a
different level, our input is being considered. I think that is
a good example of how public input early on by concerned and
knowledgeable citizens can make a difference.
Mrs. Dingell. Thank you.
Mr. Gohmert. Thank you. And we hope you will give Mr.
Dingell our best. He turned 90 years old--was it yesterday?
Mrs. Dingell. Tomorrow.
Mr. Gohmert. Tomorrow. OK. Well, he is a distinguished
gentleman in the best sense of the word.
At this time, we recognize the Chair of the Full Committee,
Mr. Bishop.
The Chairman. Well, thank you, Mr. Chairman, even though
you put me all the way down here; but thank you.
Let me ask a couple questions, if I could--I can go in the
other room, if you would like.
First of all, Ms. Clarke, thank you for being here. I think
adding to the resume is the fact that you were a former BLM
director, so you understand this process and how these things
work within the walls of the Interior Department, that great
mausoleum to comradeship.
Let me ask you a couple of questions. When FLPMA was
actually passed, part of it said that it was there to preserve
existing rights. That included grazing, leasing, water rights,
yada yada. BLM was also there so that the plans would be
consistent with state and local plans. That is the purpose of
FLPMA, that was in the legislation. That provided for a
coordination of land use inventory specifically with the
agencies of state and local government.
So, once again, I want to go--you touched on this in both
your written and oral testimony--when I read BLM Planning 2.0,
it appears that BLM is moving away from the rights granted to
the state and local governments in the law. Under this new
rule, how do you think BLM will honor their legal mandates to
cooperate and coordinate with states, particularly the early
public assessment phase?
Ms. Clarke. I believe, during this early public assessment
phase, state and local governments can participate, should they
choose, but their voice will be marginalized. They have a right
to sit as an elevated partner because they are sovereigns, and
they should not be relegated to sharing a position among the
crowd.
Elected officials do represent the majority of the voices
of those elected, although they may not represent the voices of
the loudest, most well-funded special interest groups. I
believe that this is stepping aside from the law, and it is not
the first time we have seen the Administration take such a
step.
The Chairman. Thank you, I appreciate that. It is troubling
for me. The Federal Government does own--I actually can't see
how much time I have, so when I am close to it, hit me or
something, will you?
The Federal Government owns a third of all America, we know
that. About 45 percent is BLM property. The sad part is almost
none of that is east of Denver; it is all west of Denver. That
means, even though the votes in Congress are east of Denver,
everyone here east of Denver thinks public lands are all
national parks, when we know the bulk of it is BLM property,
and it is for those of us who actually have the fortunate
opportunity of living in the West.
What that simply means is, sometimes ideas can gain support
when they actually do hurt people in the process. I think those
of us here in the West have a specific interest, and that is
why I appreciate the first two witnesses who represent the
governors and commissioners who have concerns about what will
actually happen in the West, even though we do not have the
numerical majority here.
And, it is the same thing here. Mr. McAfee, you talked
about the commissioners in your area. I am assuming they were
voted by the people.
Mr. McAfee. Yes, sir.
The Chairman. And I assume, if they don't like what they
are doing, they could be unvoted by the people.
Mr. McAfee. That might be the case.
The Chairman. Well, I suggest you try that in the future.
It is much more beneficial. We have 200 years of practice with
that.
By contrast, is anyone going to vote for Mr. Lyons?
Absolutely not. I mean, so you get the free pass here. Whatever
you decide to do, even if you think of something that I think
is kind of crappy, you still get the free pass. It is through
the elected officials that we have some kind of input for
people, and that has to be why it was supposedly respected in
FLPMA.
So, let me go about this concept, this deciding official.
Let me start with you, Mr. Ogsbury. If a plan does not cross
state boundaries, should someone within the state be this
deciding official?
Mr. Ogsbury. Chairman Gohmert, Chairman Bishop, members of
the committee, I think it is axiomatic that, to the extent
decisions are removed from the states and moved to Washington
or away from localities, that the influence and the authority
of governors that is mandated under FLPMA would be----
The Chairman. Just say yes or no, because I have 20
seconds.
Mr. Ogsbury. I am sorry, sir?
The Chairman. You said it, fine.
Mr. Ogsbury. Thank you.
The Chairman. So, in those last 20 whatever seconds I have,
because I see the yellow light up there, let me say this. The
issue you always talked about is more input. The issue of
getting more input is good; but it is who makes the decisions
that is significant. This program significantly contracts who
gets to make those decisions, centralizes who gets to make
those decisions, minimizes elected input, and that is what
everyone has been saying--almost everyone has been saying so
far--except for Mr. Lyons. I hope you are listening to what
everyone is saying, because that is the biggest flaw in this
plan.
I will be more than happy to go another round, but thank
you. Sorry.
Mr. Gohmert. Thank you very much.
The Chairman. I am assuming I went over, because I see a
red light. I have a block. I am sorry.
Mr. Gohmert. No, actually I have a block, but you got a
late start on your time, so it worked out fine.
At this time, I recognize myself for 5 minutes. Of course,
we know that there can be significant changes that occur
between the original draft of a resource management plan and
the finalization of the resource management plan. So, it is
critical that the BLM hears from everyone who is a stakeholder.
That especially includes governors that represent the whole
state, even though their voice may be more in line with a
majority, commissioners, county officials, and, certainly, the
landowners themselves. That is why I am pleased with the
representation we have here.
Longer comment periods would seem to make that more likely.
There was a hearing recently for the Senate Energy and Natural
Resources Committee, and Director Kornze suggested that it
makes sense to retain longer comment periods, although it did
take some prodding from Senator Warren.
Mr. Lyons, do you disagree with Director Kornze? Do you
think we should have the longer comment periods, go back to
those, or do you still insist that we should have shorter
comment times?
Mr. Lyons. No, Mr. Chairman, Director Kornze and I have had
a conversation about that, and that is certainly something we
are willing to revisit.
I should explain that, in an attempt to limit the amount of
time spent on planning in providing additional information or
opportunities for input up front, I think an effort was made to
cut back on some of those later comment periods. I think we
need to rethink that, as you suggest.
Mr. Gohmert. Well, thank you. I am very glad to hear you
say that.
Mr. Ogsbury, have you heard any stories from Western
Governors, with specific instances where they were not allowed
the voices that they felt they should have in policies that
affected the people in their states?
Mr. Ogsbury. Chairman Gohmert, members of the committee, I
would appreciate the opportunity to provide a more thoughtful
answer for the record. In the meantime, I would suggest that in
the course of consistency reviews that were issued with respect
to the sage-grouse RMPs, that there was considerable concern
expressed by a number of governors that there was not enough
attention paid to those consistency reviews.
Mr. Gohmert. Well, I don't know--we got representation from
the various aspects, stakeholders. What I have heard in my
district in dealing with Federal land issues is that sometimes
a plan is being proposed and they don't see word of it; they
don't feel like they get proper notice, and then all of a
sudden their time has run out.
Mr. Fontaine, are you aware of any situations like that,
where commissioners didn't feel like they had adequate time to
respond?
Mr. Fontaine. Mr. Chairman, thank you for the question. I
think that is the case for many of our counties. We have a
number of small rural counties that, quite frankly, do not have
staff. I think we have eight or nine counties in our state that
do not even have a county manager. So, even if the BLM, for
example, might submit an email indicating that there might be
some plan that is being considered, including this planning
initiative, it is one of many emails that they may get and they
may not have the opportunity to review that and give some
thoughtful comment on that plan.
We think that the better course would be for the BLM to
reach out to those counties and to our association, as well.
Mr. Gohmert. You made a great point. My counties where
Federal land is located normally have less assets to utilize,
like you are saying. You cannot tax the Federal land, it is not
being used now where it should be used to produce timber. That
was the original idea, it is a renewable resource--these are
not sequoias or pine trees. They are struggling, the schools
struggle, and they don't have the ability to respond; and I
appreciate that point being made.
My time is running out, but I just would ask all of you,
including Ms. Clarke--you have special experience from all
sides--if you have specific instances that you can find where
the rules have worked a hardship, then let us know. Please send
us those in the days ahead.
My time has expired, and I recognize the gentleman from
Idaho, Mr. Labrador, for 5 minutes.
Mr. Labrador. Thank you, Mr. Chairman. I would like to
thank the subcommittee for holding this hearing today.
BLM's draft Planning 2.0 rule, if finalized, will have
major impacts on states with BLM land. In my state, BLM manages
approximately 12 million acres of land which will be
significantly impacted by this rule. Because the impact on
Idaho will be so significant, I am very concerned that this
draft rule marginalizes the role that state and local
governments will play in the BLM planning process, and ignores
BLM statutory obligation to coordinate with state and local
governments, and to provide for meaningful public involvement
of state and local government officials.
I would like to ask unanimous consent first that a letter
that Governor Otter sent to the members of Idaho's
congressional delegation, as well as the state's comments to
BLM be included in the record.
Mr. Gohmert. Without objection, so ordered.
[The information follows:]
State of Idaho,
Governor's Office.
May 25, 2016
Director Neil Kornze
Bureau of Land Management
U.S. Department of the Interior
1849 C Street NW
Washington, DC 20240
Director Kornze:
The State of Idaho appreciates the opportunity to provide comments
regarding the Bureau of Land Management's (``BLM'') proposal to amend
the regulations related to the resource management planning process
(``BLM Planning Rule 2.0''). See 43 CFR Sec. 1600. Please accept the
following observations and comments.
BLM manages approximately 12 million acres in Idaho and over 14
million sub-surface acres. Management decisions on federal lands have a
significant impact on Idaho's economy and way of life. There are over
1.3 million Animal Unit Months (``AUMs'') associated with 1,878 grazing
permits and leases on BLM-managed lands within Idaho. Additionally,
there are numerous oil and gas leases, mining operations, recreational
activities, etc. that are located on federally managed land in Idaho.
The way in which these decisions are made is important, which is why
Idaho has consistently pushed to be a meaningful partner at every
opportunity. However, time and again Idaho and its agencies have worked
hard and in good faith to develop robust, collaborative planning
documents with their local BLM offices only to have BLM's national
office in Washington D.C. unilaterally change course at the last
minute.
The BLM Planning Rule 2.0 represents another example of the BLM
failing to engage state and local regulatory partners. This has become
a pervasive policy for many federal agencies. Federal agencies do not
appear to view states and their respective agencies as co-managers or
co-regulators, but instead seeks to aggressively minimize the State's
role, often ignoring or overruling State plans, policies or priorities.
If appropriate land management efforts in Idaho are going to achieve
any level of success, the State and its representative agencies must
serve a more prominent role in the development and implementation of
federal programs and their attendant regulations.
Interestingly, the proposed regulation suggests deleting the term
``shall'' throughout the entire regulation and replacing it with the
term ``will.'' The justification is improving the regulation's
readability. I respectfully disagree with this proposed change. The
existing terminology does not suffer from readability problems.
Moreover, the term ``shall'' is a generally recognized legal term of
art that indicates mandatory or non-discretionary. This is an important
term that should serve to remind BLM of such important congressional
mandates as directives to ``use and observe principles of multiple use
and sustained yield'' and ``coordinate with other federal agencies,
Indian tribes, and the States and local governments.'' See 43 U.S.C.
1712(a) sec. 202(c).
Section 1610.4: Planning Assessment
BLM proposes to establish a new ``Planning Assessment'' step in the
RMP development process to ``combine and revise existing steps for
inventory data and information collection and the analysis of the
management situation.'' This step would take place during the scoping
process, before the agency begins RMP development. It appears BLM is
basing the shortened Governor's consistency review, at least in part,
on the fact that it will provide opportunity for State input during the
Planning Assessment. Additionally, this section is written in a very
``passive'' fashion which seems to confer little obligation on the part
of the BLM to gather appropriate data for its own planning process. We
believe planning guidance should direct BLM to uphold an ``active''
role in soliciting, identifying and gathering relevant scientific
information about the planning resources. Further, the BLM should be
required to find and gather both (1) the best scientific data for
relevant resources pursuant to a quality-controlled process and (2)
appropriate data from the regulatory agency responsible for managing
those resources. As now written, the BLM has the option of disregarding
State management data for a given resource in preference for data from
an individual or special-interest group, which is extremely concerning.
The State of Idaho's concern with this new process is two-fold:
This consultation would occur at the scoping stage of RMP
development, prior to any actual RMP design; and
Specific opportunities for engagement by states appear
limited.
Section 1610.4(a)(3) states BLM is proposing to add a requirement
that the responsible BLM official provide opportunities for states and
other stakeholders to provide data and information, or suggest other
policies for the agency to consider (i.e., ``a state wildlife agency
might ask the BLM to consider a conservation plan for a sensitive
species'').
States are invited only to submit data and information. This also
seems imbalanced by placing the onus of information submittal on states
and other stakeholders while leaving BLM to make a subjective
determination of whether to consider submitted information.
Additionally, ``[t]his opportunity would be provided through a general
request for information from the public.'' States should be treated
with special solicitude, and not simply as members of the public, as
BLM proposes.
Section 1610.3-2 Consistency Requirements
The proposed BLM Planning Rule proposes the following revision:
``Resource management plans will be consistent with officially approved
or adopted land use plans of other Federal agencies, State and local
governments and Indian tribes . . . (emphasis added). (p 118). As a
foundation for this change, BLM proposes replacing the phrase
``resource related plans'' with ``land use plans'' and to remove the
words ``policies, programs, and processes'' from the existing
definition of officially approved and adopted land use plans (p. 52).
Improved consistency with section 202(c)(9) of FLPMA is provided as
rationale for this change.
This narrows the existing planning context for consistency with
resource-related plans and policies, programs and processes. Idaho is
concerned that this will fundamentally preclude Governor consistency
review consideration of Idaho Department of Fish and Game (``IDFG'')
species management plans, which provide important context to official
State and local government land use plans. We believe this flexibility
is necessary because State and local governments' officially approved
or adopted land use plans often do not specifically incorporate species
management population objectives yet IDFG species management plans are
fundamental to hunting, fishing, trapping and other wildlife-related
activities as components of outdoor recreation plans and also are
important state plans that are germane in the development of land use
plans for public lands (which the Secretary is to assure that
consideration is given, section 202(c)(9) of FLPMA). We recommend that
IDFG species management plans remain an acceptable component of the
governor consistency review process.
The proposed BLM Planning Rule claims to enhance state and local
governments' opportunity to participate in the various BLM processes.
However, a more detailed review of the proposed changes does not
support that conclusion. In fact, development of the proposed rule
itself presented a perfect opportunity for the BLM to engage its state
and local partners in identifying areas of needed improvement, crafting
a process that takes full advantage of the important perspectives and
priorities that states can provide, and roll out the proposal to the
public in lock-step with the states. Instead, the rule was developed--
as has become all too common--by officials in Washington, D.C., only
engaging state partners in the same process with which it engages the
general public. This process surely would overlook the important
priorities or policies of the individual states and further erode the
principles of federalism that are embedded within our history and
national charter.
This process of minimizing state participation is inappropriate
given the congressional direction codified in BLM's organic statute.
The Federal Land Policy and Management Act (FLPMA) directs BLM, to
``establish procedures . . . to give Federal, State, and local
governments and the public, adequate notice and opportunity to comment
upon and participate in the formulation of plans and programs relating
to the management of the public lands.'' See 43 U.S.C. 1712(f). It is
evident from the language of the statute that Congress perceived the
role of state and local governments to be separate from and in addition
to the general public's participation. Congress has stated that land
use planning should
consider[ ] the policies of approved State and tribal land
resource management programs. In implementing this directive,
the Secretary shall, to the extent he finds practical, keep
apprised of State, local, and tribal plans that are germane in
the development of land use plans for public lands; assist in
resolving, to the extent practical, inconsistencies between
Federal and non-Federal Government plans, and shall provide for
meaningful public involvement of State and local government
officials, both elected and appointed, in the development of
land use programs, land use regulations, and land use decisions
for public lands, including early public notice of proposed
decisions which may have a significant impact on non-federal
lands.
43 U.S.C. 1712(a) sec. 202 (emphasis added). The congressional mandates
contained throughout FLPMA with respect to engaging state and local
governments early and in a meaningful way are not being followed
adequately, nor are they accurately reflected in the proposed
regulation. How can the BLM ``keep apprised of State, local, and tribal
plans'' and provide ``meaningful'' engagement by simply cataloging
states' comments along with the myriad of other written submissions to
this rule or other important planning documents?
The various sections of FLPMA highlighted above provide important,
non-discretionary direction with respect to stakeholder engagement. The
proposed regulations must be consistent with these and other
congressional mandates. Any final regulations should be amended to
clearly recognize and emphasize the importance of the BLM coordinating
its efforts with the states, local governments and Indian tribes. These
governing bodies should have the opportunity to be equal partners in
promulgating rules and land use plans. Of utmost importance is the need
for the regulations to recognize the distinction between public comment
opportunities and coordination with co-regulators and co-managers
whereby state and local plans, policies and priorities are carefully
considered and integrated into Resource Management Plans (``RMPs'') and
other important planning documents. BLM should strive to create
consistency with state policies, plans and programs at every level of
RMP development, beginning with meaningful engagement with state and
local governments.
Additionally, BLM is considering whether to adjust the timeline or
appeal process of the Governor's consistency review.\1\ It justifies a
modification of this important tool for Governors by claiming that this
proposed rule provides early opportunities to identify the officially
approved and adopted land use plans of state and local governments, and
to resolve inconsistencies between those plans and the RMP alternatives
that BLM would consider.
---------------------------------------------------------------------------
\1\ Section 1610.3-2(b)(l)(ii)
---------------------------------------------------------------------------
BLM proposes no tangible early opportunities for participation by
Governors. As discussed below, BLM is adding a baselining step to the
RMP amendment process in which it will ask for information from state
agencies with no assurance that BLM will seek consistency. If BLM
chooses to adjust the timing for consistency reviews, it must not
shorten the timeframe and in fact should consider granting states more
time to make a consistency determination.
Section 1601.0-4: Responsibilities
The proposed regulations attempt to shift certain decision-making
authority from BLM state directors to the BLM director. This proposed
change should be deleted. Empowering state directors to develop local
solutions by engaging state and local co-regulators and co-managers is
an important investment in the collaborative and coordinated model that
is far superior to the centralized, top-down approach that is proposed.
Federal agency personnel stationed in Washington, D.C. will never fully
understand the unique socio-economic, cultural and conservation needs
unique to the individual states. The attempt to codify the practice of
top-down, one-size-fits-all decision making is misguided. This
undermines collaborative local solutions and deflates enthusiasm for
conservation initiatives. State and local leaders are closely connected
to the citizens who are affected most by the regulatory framework
contained throughout the proposed regulations. A more meaningful
engagement with state and local governments improves the regulated
community's opportunity to interact with its government on all levels
and provides a perspective that is otherwise missed. BLM offices don't
understand the issues in Idaho and across the West. BLM should maintain
the status quo which allows the Idaho State Director to make the
decisions that affect Idaho.
Section 1610.2: Public Involvement
BLM proposes to shorten the comment period for draft RMPs from 90
days to 60 days and reduce the comment period for draft environmental
impact statement (EIS)-level plan amendments from 90 days to 45 days.
BLM justifies these changes in order to streamline its process, and
that longer periods will be unnecessary because new and amended RMPs
will take consistent approaches in the coming years.
These timeline reductions eviscerate the important role the public
plays in land-use planning and government accountability. Many Idaho
citizens who are directly impacted by BLM management decisions strongly
desire to participate in and comment on all the BLM's land management
planning. Recently, nearly all RMP- and EIS-level plan amendments
consist of multiple volumes and thousands of pages. While BLM reserves
the right to take as much time as it needs to create these documents,
reducing the amount of time that the public has to review them all but
ensures that these important parties to the process cannot provide
meaningful input.
BLM indicates that the reduction in review time is justified
because of increased state/federal coordination early in the planning
process. However, history shows us that early coordination between the
state and BLM is ineffective because very little is required of BLM and
other federal management agencies to meet their FLPMA ``coordination''
responsibilities. Both the sage-grouse process and the Gateway West
Supplemental EIS are recent examples of how BLM believed it had met its
``coordination'' duties by giving Idaho advanced notice of plan
changes. This is not enough. Increased early state/federal coordination
should mean that states have the opportunity to be true partners in the
planning process.
BLM should maintain and consider extending comment periods to
ensure that Idaho and other states and interested parties have adequate
opportunity to review and comment on RMP amendments and EIS level plan
amendments.
Mitigation
Idaho agrees with the construction and citation of a ``Mitigation
Hierarchy'' as proposed in the proposed rule. Without referring
directly to ``preamble for proposed section 1610.1-2(a)(2)'', we
recommend a clearer statement that the hierarchy considers avoidance
preferable to minimization, which in turn is preferable to
compensation. Please clearly spell out that the sequence as stated is
in order of preference.
Agency Communication Protocol
BLM proposes to eliminate the requirement to publish notices
related to RMP development, including NEPA analyses, on the Federal
Register. Rather, the agency would publish these actions on the BLM Web
site and at BLM offices within the planning area of a given RMP.
Similarly, BLM proposes to eliminate the current requirement to publish
Federal Register notices at the start of every planning effort and to
remove the requirement that BLM publish a Notice of Intent (NOI) to
prepare an environmental assessment as part of an RMP amendment, but
would retain the requirement to publish a NOI for an EIS related to an
RMP amendment.
Federal Register notices ensures that RMP amendments and other NEPA
analyses are consistently communicated with interested parties, and
ensures that all parties are kept apprised of changes or new
developments. BLM should continue publishing notices in the Federal
Register while adding publication on the BLM Web site and at BLM
offices within the planning area of a given RMP in order to ensure that
interested parties are notified of BLM's actions.
Conclusion
It is my opinion that the proposed rule cannot be fixed simply by
line-item edits. As I stated before, officials in Washington, D.C. will
never fully understand the unique socio-economic, cultural and
conservation needs of the individual states. State consultations should
have occurred prior to the publication of this proposed rule. After
much discussion with Idaho's State agencies, I request that the
proposal be discarded and a new proposal drafted with the BLM
appropriately engaging the states. Throughout the consultation process,
I would remind the BLM that state agencies are not merely stakeholders,
but rather are the BLM's partners, especially when implementing
important land management actions. Idaho has a wealth of data,
experience and expertise from which the BLM could benefit in developing
a much more collaborative, robust and effective planning rule.
As Always--Idaho, ``Esto Perpetua'',
C.L. ``Butch'' Otter,
Governor of Idaho.
______
State of Idaho,
Governor's Office.
July 1, 2016
Hon. Mike Crapo
Hon. James E. Risch
United States Senate
Washington, DC 20510
Hon. Mike Simpson
Hon. Raul Labrador
United States Congress
Washington, DC 20515
Dear Idaho Delegation:
I recently submitted the attached comments on the Bureau of Land
Management's (BLM) proposal to amend the resource management planning
process (Planning 2.0) regulations. If instituted, Planning 2.0 will
significantly limit opportunities for Idaho, local stakeholders, and
the public to engage in collaborative land management planning.
As you know, the Senate Energy and Natural Resources Subcommittee
recently held a hearing to conduct oversight on the Planning 2.0
initiative. Likewise, the House Committee on Natural Resources held a
similar hearing in the Subcommittee on Oversight and Investigations to
examine the local perspectives on Planning 2.0 in May. The testimony at
these hearings showed a general displeasure across the West on the
contents of the proposed initiative, and I wanted to take this
opportunity to share my thoughts on the rule.
I have very clear expectations regarding how federal agencies
should interact with the State while developing regulatory programs
that impact Idaho. Federal land management agencies must respect Idaho
as a sovereign and full partner. Planning 2.0 is no exception. However,
the BLM failed to engage Idaho in early and meaningful consultation
while drafting Planning 2.0. The BLM could not follow the very
principles it purports to endorse in Planning 2.0 while drafting the
rule itself. Planning 2.0 includes a number of provisions that weaken
the value and impact of Governors' Consistency Reviews in the RMP
development process, and leaves states with an undefined role in the
planning process.
Planning 2.0, as drafted, presents serious challenges and contains
significant shortcomings. I urge you to support any effort to delay the
implementation of Planning 2.0 until BLM appropriately engages Idaho,
and addresses the serious issues that I provided in my comments. Please
feel free to contact me if you have any questions or would like
clarification on my comments.
As Always--Idaho, ``Esto Perpetua'',
C.L. ``Butch'' Otter,
Governor of Idaho.
______
Mr. Labrador. Thank you.
Mr. Ogsbury, thank you for being here today. As I
mentioned, the Federal Land Policy and Management Act requires
that the BLM coordinate the land use inventory planning and
management activities with state and local governments, and
provide for meaningful public involvement of state and local
government officials. That is what the law says.
Do Western Governors believe that BLM's current planning
regulations comply with these requirements?
Mr. Ogsbury. Chairman Gohmert, Representative Labrador, we
believe that Planning 2.0 steps away from that requirement.
Mr. Labrador. In what ways?
Mr. Ogsbury. Governors under FLPMA are, as you pointed out,
given a very substantial role with respect to the BLM planning
process when, for example, the scope of consistency reviews are
narrowed from having RMPs be consistent with plans, programs,
policies, and processes to simply being consistent with
officially adoptive land use plans; that is a step away from
gubernatorial influence.
When 2.0 says that governors' views will be considered,
simply considered, that is a step away from saying governors'
recommendations submitted as part of a consistency review will
be adopted if it represents a good balance between national and
state interests.
Mr. Labrador. So, trying to change the law through
regulation, in essence. This draft rule appears to shift
planning away from local communities to BLM headquarters here
in Washington, DC. This, to me, is very problematic for several
reasons.
Idaho's comments to BLM state that, ``Idaho and its
agencies have worked hard and in good faith to develop robust,
collaborative planning documents with their BLM offices, only
to have BLM's national office in Washington, DC unilaterally
change course at the last minute.''
Mr. Fontaine, have counties in Nevada had similar
experiences to those that Idaho has had when planning documents
go to BLM headquarters?
Mr. Fontaine. Thank you for the question. I cannot think of
a specific example today, but, generally speaking, we have a
good working relationship with our local BLM officials, and
strive to come up with plans and agreements on how those should
be implemented and administered. Once they do leave the state
and go to Washington, DC, it is really, quite frankly, beyond
our control; and the last thing that we want to have happen is
for our county officials to have to go back and try to rectify
something that may have been changed that was not agreed to at
the county and state level.
Mr. Labrador. I think you are making an important point. I
think most of us have pretty good relationships with our local
officials. It is when it comes here to DC that things seem to
shift most of the time.
Under this proposal, do you think Nevada counties have a
seat at the table when BLM engages in the planning?
Mr. Fontaine. Under this proposal, I believe that we still
have a seat at the table. But again, I think our concern is
that that seat and our voice might be part of a much larger
group of stakeholders, and somehow backs away and diminishes
the elevated role that county governments and local governments
have in the process.
Mr. Labrador. Thank you.
Ms. Clarke, thank you for being here today. Will this
proposal strengthen the relationships that states and local
governments have spent years developing with local BLM
officials?
Ms. Clarke. Thank you for the question. I believe
absolutely not. I think it will go the opposite direction.
Those relationships in the state are robust, but it is very
disappointing when we sit and come to terms with one of our BLM
counterparts and they say, ``OK, now I have to go back to
Washington and see if I can get this validated.'' And very
often they cannot. They come back with a counter-proposal.
I think this will just make that problem more prevalent.
Mr. Labrador. Thank you very much. I yield back my time.
Mr. Gohmert. Thank you. At this time, the Chair recognizes
the Arkansas razorback gentleman, Mr. Westerman, for 5 minutes.
Mr. Westerman. Thank you, Mr. Chairman. I thank the
witnesses for being here today. One of the most significant
changes under Planning 2.0 would be moving to the
implementation of a landscape-level management of resources. I
don't want to knock the landscape-level process, because it is
used by large private landowners and you can look at individual
management of stands and then the conglomeration into the
landscape. So, the science of that I don't necessarily disagree
with, but we have to make sure that the process is still
followed and that you still have the state and local-level
input into that process, so that all the views are being
represented and that we are not shifting power away from the
local communities.
Mr. Fontaine, are you concerned that this change will
centralize management planning in DC, rather than at the state
and local level? Do you feel like state and local authorities
will still have a role in this?
Mr. Fontaine. Congressman, thank you for the question. We
are very concerned about how this might affect our local
communities. We have a number of rural counties that contain
small communities.
I will give you an example. Esmeralda County is one. It is
a neighboring county to Clark County, our most populous county,
with over 2 million people, completely different in terms of
their interests and the impacts of BLM lands on their county.
But Esmeralda County has 897 people. If somehow that county is
included in a larger landscape-level planning initiative, we
are very concerned about how the impacts to that local
community in that county would be dwarfed by the larger
economic analysis and impact analysis for landscape-level
planning effort.
So, yes, we are very concerned. We have, again, a number of
counties that would potentially be affected that way.
Mr. Westerman. Do you believe the current system benefits
states by allowing for closer relationships with Federal
officials in the state and field offices?
Mr. Fontaine. Again, thank you for the question,
Congressman. Yes, we do. We have close relationships with our
state office. We have district offices throughout our state, as
well. And I know that, while there may be differences between
counties and the BLM officials at the local level from time to
time, we encourage our member counties, as does the BLM
encourage, I believe, their staff and management across the
state, to work closely together to try to address those issues
at the local level. We think that is very important, those
relationships are absolutely critical.
Mr. Westerman. But do you think if the decision process is
moved to DC or a more centralized process, do you think that
would give outside groups, who may not have a local interest in
the landscape, undue influence?
Mr. Fontaine. I certainly believe that opens the door to
that possibility, very much so.
Mr. Westerman. I would like to ask Mr. Ogsbury and Ms.
Clarke your thoughts on the BLM shift to landscape-level
management.
Ms. Clarke. Thank you, I appreciate that opportunity. As I
said, I have worked with many agencies, Federal and state,
regarding land use planning and plans. It was delightful when I
served at BLM to very often be out with local folks, sometimes
elected officials, and to be told that BLM was a superb partner
and asked, ``What would it take to get the Forest Service to
function the way the BLM did? ''
I think you automatically see the difference. They have
landscape-scale designs around those forests. They do not have
any kind of geographic boundaries that align with political
boundaries. While that is convenient for them and good for the
forest, they are not the greatest of partners. I used to have
my counterpart, Chief of the Forest Service, say this, ``It is
great to partner with the BLM, because they are open-armed.''
But he says, ``If you want to partner with the Forest Service,
you have really got to want to partner, because we will not
make it easy.''
Mr. Ogsbury. Chairman Gohmert, Congressman Westerman,
members of the committee, WGA does not have a specific policy
on the movement toward landscape planning. But as you so
articulately observed, whatever process is pursued, it is
critical to preserve the special role of governors and the
substantive role in the BLM planning process.
Mr. Westerman. I am almost out of time, Mr. Chairman. I
will yield back and hang around.
Mr. Gohmert. Thank you. We will have a second round, and I
will now recognize Chairman Bishop for 5 minutes.
The Chairman. Thank you again.
Mr. Lyons, I have a couple of questions for you, one in
response to your testimony to Chairman Gohmert just a second
ago, that you were thinking of making comment periods in BLM
2.0 longer. So I guess the question is why, then, do you refuse
to extend the comment periods about BLM 2.0 more than 30 days,
even though you had requests from numerous special interest
groups to do so?
Mr. Lyons. Thank you for that question, Mr. Chairman. We
have gone through an extensive process in developing the rule
and in seeking input from various sources. We have held
workshops, we have held webinars, we have had a 60-day comment
period, which was extended another 30 days. We do not want the
process of preparing the planning rules to last as long as it
takes today to prepare a plan.
The Chairman. Even though you have had repeated requests
for extended comment periods?
Mr. Lyons. We will continue to accept input from those who
want to provide that input. In fact, we continue to look at
that input and will factor that into the completion of the
final rule.
The Chairman. I guess it comes back again to, it is not
where the input is coming from, but who is actually making the
decisions on this input, which is one of the other questions
that we have coming up here.
Let me ask you one other question, as well. Are you aware
of any instances, including the management of national
monuments, where BLM is currently using Planning 2.0 procedures
or where BLM has told communities that the Planning 2.0
procedures would be used, regardless of whether or not they had
been finalized?
Mr. Lyons. Mr. Chairman, we have pilot-tested the
application of Planning 2.0 principles. In particular, I would
offer work that was done in western Montana, in and around the
communities of Missoula. And the response was quite positive.
In fact, if I may----
The Chairman. No, just answer the question. Have you done
it?
Mr. Lyons. We have pilot-tested this in a number of places,
and it has been a very positive response.
The Chairman. Have you told communities that you would use
2.0 regardless of whether they have been finalized or not?
Mr. Lyons. We did not use 2.0, we applied the principles
and concepts as we are developing this to try to do what I
think any prudent organization would do. We are testing the
approach----
The Chairman. OK, come on, in English. The answer is yes,
then?
Mr. Lyons. No.
The Chairman. The answer is no. So you have not
implemented----
Mr. Lyons. No, we have not implemented Planning 2.0 yet. It
is not the rule----
The Chairman. Except even though you said you have already
pilot-tested----
Mr. Lyons. We have pilot-tested elements of it. Yes, sir.
The Chairman. And there has not been a situation in which
you told communities you are going to be using this whether it
is finalized or not?
Mr. Lyons. No, sir. We have not completed the rule.
The Chairman. OK. Then I hope some of the input we are
having has been inaccurate.
Let me go back to that ``deciding official'' concept again.
Mr. Fontaine, let me ask you the same thing I asked Mr. Ogsbury
earlier on. Is it ever appropriate to have that defining
official be somebody who lives outside the jurisdiction of
either a county or a state, if the entire plan is within the
jurisdiction of that county or state?
Mr. Fontaine. Chairman Bishop, thank you for the question.
I don't understand how you can have a deciding official make a
decision about a place where they don't have knowledge, haven't
resided, haven't spent time with the community, or haven't
worked with that community to understand what the needs are in
that----
The Chairman. You have never seen the administrative state
in action, then.
Ms. Clarke, let me come back to you on that. Do you have
any concerns on how BLM will select these deciding officials
under this new plan?
Ms. Clarke. I have grave concerns about it, because I do
not think there is anything I have seen in the rule that limits
who that might be. And I do not see anything that says it needs
to be someone local, someone who understands the culture.
But, there has been discussion here about ``we are not
going to diminish the role of the cooperators.'' Yet, I think
it will fundamentally be diminished if, after you have talked
and worked with them, they pull in someone to decide who has
never been party to those conversations. So, it is another way
to really diminish the input of state and local governments.
The Chairman. Let me go back to another one, then. States
do have primacy over allocation and administration of water
resources within state borders. So, Mr. Lyons, the BLM
proposals here indicate the agency may add provisions to its
RMPs to increase agency involvement in water management.
Specifically, what aspects of water management allocation would
BLM incorporate into the future in new or amended RMPs?
Mr. Lyons. Mr. Chairman, I am actually not aware of that,
so I am going to have to do a little homework and try to
understand where that impression has come from.
The Chairman. Well, good. If we gave you an extended
comment period, maybe you could answer that.
Mr. Lyons. Thank you, sir.
The Chairman. I see a yellow light over there. Let me yield
back and see how many other people have something else to go
with.
Mr. Gohmert. Thank you. The Chair yields back. I am
struggling here. Given the significant impact that this rule is
going to have on the 12 western states where the Federal
Government, the BLM, owns so much of that land, and given the
disproportionate impact that this rule 2.0 is going to have on
these 12 states, why did the BLM choose not to travel to those
states and have field hearings and hear directly from the
people most affected?
And, as Mr. Fontaine points out, some of these counties,
because there is so much Federal land in their county, do not
have the resources to come to Washington to lobby like other
special interest groups do. Why was there not even a trip to
the sites that are going to be so materially affected before
this was put out as the rule?
Mr. Lyons?
Mr. Lyons. Yes, Mr. Chairman. I would say this. We have
done outreach, as I said before. We have sought input. We have
gotten over 6,000 comments on the rule, which I am glad to
provide for the record, if you like. Our intent is not to have
to have people come to Washington. Our goal is to engage with
people on the ground. That is the way the plans would be
implemented. It is no different than the way things occur now
with regard to cooperators.
Mr. Gohmert. That is what we are worried about.
Mr. Lyons. I would emphasize that we have worked through
our resource advisory committees--and again, I can provide this
information for the record--who are locally representative, to
secure additional input and feedback on the rules, as well. We
are trying to engage at that level, and to engage as well on a
regional level to secure information that will help us improve
the rule.
This conversation is interesting and helpful in helping us
to decide how we are going to finalize the rule. As I indicated
to the Chairman, we are not done yet, and we certainly
appreciate the feedback.
Mr. Gohmert. Well, what about extending the rule, or
extending the comment period for the rule itself? Since you and
Director Kornze talked and you think it would be a good idea to
extend it within the rule, how about extending the comment
period for the rule?
Mr. Lyons. Frankly, Mr. Chairman, I think this is a
conversation to be had with the Director, but I would suggest
that we have done our utmost over the period of time that we
have been working on this rule to try to secure additional
input, and now it is time to finalize a rule based on all the
input we received and then apply it.
Mr. Gohmert. You are hearing from people who represent
areas in the West. You are hearing from others saying, ``Give
us more time.'' We invited Director Kornze, and they sent you
to answer for him. That is why you are being asked the
question. You are answering for the Director, you are the one
they sent. So, I would appreciate it if you would not pawn it
off on the Director when he sent you to answer.
It sounds like you are saying, ``We are not extending the
comment period. We have our little bevy of folks around here in
Washington; we haven't been to those areas. We are going to
materially impact them, and we don't care. We have our plan,
and we may extend the comment period within the plan for other
rules, but the big killer plan, we are going to leave it right
where it is. We are satisfied with our little crew right here
in Washington.'' That is the impression you are giving. Then,
when you throw it back to Director Kornze, when he sent you to
testify on his behalf, it gives me a lot of concern.
Mr. Ogsbury, aren't the Western Governors pleading for more
comment period before 2.0 is put in as a finalized rule?
Mr. Ogsbury. Chairman Gohmert and members of the committee,
the Western Governors are pleading for BLM to take a step back
and take their concerns into account.
Mr. Gohmert. Let me just say this, since my time is running
out. It looks like we are heading to a CR or an omnibus, and
the Republican leaders come to people like me and they say,
``Look, we need you and we need other conservatives like you.
What will it take? '' And I tell you what. We are about to get
to the point where it is going to take gutting BLM's leadership
until we get people who will be responsive to the people that
they are gutting. That may be what I need to support, the CR or
omnibus, if we do not get more responsiveness out of BLM.
At this time, the Chair recognizes Mr. Labrador for 5
minutes.
Mr. Labrador. Thank you, Mr. Chairman.
Ms. Clarke, just to follow up on the questions I was asking
you--do you think that the shift to multi-state landscape
management benefit the actual landscapes?
Ms. Clarke. Not necessarily, because I believe that the
best stewardship of the land comes when there is a partnership
that empowers local people to be engaged, and that has
solicited their commitment to the plan. If they are a part of
it, I think they will honor it; and they will do their utmost
to take care of the land.
The land is often where they live, where they play, and,
for many, where they make a living. I think they will be good
stewards. I think if you go to landscape level you lose that
very personal touch. Unlike the Forest Service, that can draw a
circle around their land, the BLM land is so fragmented that
BLM has to partner with its neighbors. This is not going to
lead to good partnership.
Mr. Labrador. Thank you. Do you think there is any
statutory authority for this change?
Ms. Clarke. No, I do not. I think this is moving beyond the
statute, and kind of ignoring the statute.
Mr. Labrador. OK. Mr. Lyons, you state that the proposed
rule is intended to ``improve opportunities for state and local
government, stakeholders, and the public to better provide
input to plans from the outset.'' Based on the comments from
the witnesses here today, and the comments submitted to BLM by
the state of Idaho, it appears that the proposal fails to meet
that goal.
Based on the fact that state and local elected officials
from all over the country are commenting on the rule and
expressing concerns that their ability to participate in the
planning process with BLM will be reduced, does BLM still
contend that the draft rule satisfies the requirements of
FLPMA?
Mr. Lyons. I am confident, Congressman, that the proposed
rule is consistent with FLPMA and our authorities. My takeaway
is we have a lot of work to do to help correct some
misperceptions and misunderstanding of the rule, and----
Mr. Labrador. You are smarter than all the governors and
all the county commissioners. You just need to convince them of
your brightness.
Mr. Lyons. No.
Mr. Labrador. Is that what you are telling us?
Mr. Lyons. No, no. What I am saying, Congressman, is that
we have work to do to consider all the input that was provided
today and has been provided throughout this period, and to see,
to what extent we can address those concerns, but I am
confident----
Mr. Labrador. You have the Western Governors' Association,
all the western governors, telling you that it does not comply
with FLPMA. Their concern about their inability to be able to
participate in the process--that you are actually taking their
ability away that FLPMA clearly provides. It is not like we are
making it here out of whole cloth. We are not just inventing it
from the dais. We are actually reading the statute that says
that they have to have significant impact and significant
input.
Mr. Lyons. Well, I would suggest, Congressman, that
everyone is rendering opinions, including myself. I am not an
attorney. I will let our solicitor's office confirm that, if
that is helpful.
Mr. Labrador. No, it is not helpful. The state of Idaho has
requested that BLM discard the proposed rule and that a new
proposal be drafted with the BLM appropriately engaging the
states. Has BLM received similar requests from other states?
Mr. Lyons. We have heard from a number of states who are
concerned about the rule. Yes, sir.
Mr. Labrador. And have they specifically made that request
to just start the process over?
Mr. Lyons. I would have to check on the specifics,
Congressman.
Mr. Labrador. Do you know, Mr. Ogsbury, if other states
have made the same request?
Mr. Ogsbury. I believe the state of Wyoming has asked for a
withdrawal of the rule. The state of Utah has asked for a
withdrawal of the rule, as well.
Mr. Labrador. But Washington knows better, right?
Mr. Lyons, does BLM plan to comply with these requests, or
is the agency committed to finalize the draft rule?
Mr. Lyons. I think we are going to do everything we can,
Congressman, to address the concerns that have been raised, and
attempt to complete the rule.
Mr. Labrador. Mr. Lyons, is BLM using these proposed
regulations in the development of the management plan for
Oregon National Monument?
Mr. Lyons. I am not aware of that. I can't answer that,
sir.
Mr. Labrador. OK. So, your testimony today is that you are
going to take these comments back, but you are going to do
nothing with it, because you are going to continue with the
proposed rule; correct?
Mr. Lyons. That is not what I said, sir.
Mr. Labrador. I want to be clear. Are you willing to start
all over with this rule?
Mr. Lyons. No. What I said was, we are willing to listen as
we have, and will continue to do. We are going to listen to the
comments that have been provided----
Mr. Labrador. And what are you going to do with those
comments?
Mr. Lyons. Attempt to address the issues to the best of our
ability in attempting to finalize the rule.
Mr. Labrador. So, you are going to attempt to educate us on
the wisdom of Washington, DC, because you are not going to do
anything to change the proposed rule. I am asking a serious
question. Are you going to do anything to change the proposed
rule?
Mr. Lyons. I think we are in the process of working that
through right now, sir.
Mr. Labrador. All right. Thank you very much.
Mr. Gohmert. The gentleman from Arkansas is recognized for
5 minutes.
Mr. Westerman.
Mr. Westerman. Thank you again, Mr. Chairman. Mr. Lyons,
welcome to the committee. In full disclosure to the committee,
the last time I think Jim and I were in the same room, he was a
visiting professor at Yale when I was taking a policy class; so
I am glad you gave me a good grade in the class.
Mr. Lyons. Where did I go wrong?
Mr. Westerman. I remember from that class one of the
discussions we had was in resource management, that government
is more effective when it was closest to the people. That was a
topic we discussed quite a bit. I still believe that is true
and hold true to that. I am very concerned about when we enact
policy that moves government or moves decisions further away
from the people.
I am also concerned that when we are looking at resources,
we get the policy and the science on the same page. As I said
earlier, the science behind landscape management is not all
bad, you get some benefits from things like landscape-wide
stewardship contracting, or areas to maximize the use of the
resource much better.
But I am really concerned if we do not do this correctly,
then we will be taking the decision away from the people who
are most affected by the decision; and the decisions will be
based more on politics, rather than science. And in the end,
the American public loses because our resources are not managed
well.
Could you just elaborate a little bit on how we can be
assured that this rule will still keep decisions local, that
there will be collaborative efforts, and that those that are
most affected by these management decisions will have, not only
a seat at the table, but the front seat at the table.
Mr. Lyons. Thank you, Congressman. I appreciate the
opportunity, and I am proud to see one of my students, at
least, has been successful.
What I would say is that I agree completely that local
input is essential to making sound resource management
decisions. You have heard me say that before. I think,
unfortunately, the way in which this rule has been
characterized misrepresents, at least from my perspective--and
I realize there are different perspectives in the room--how
this would work.
The goal here is to provide additional opportunities for
input up front. That is what the assessment process is about,
so everyone has the same basic information going into the
planning process.
We would require, before plan alternatives are developed,
that there be a discussion with all the local interests, all
interests, including locally elected officials and cooperators,
about the construction of those alternatives; and the
responsible official who is developing the plan has an
obligation to explain why those alternatives fit with the
resource conditions and the baseline information provided. I
think that helps improve local collaboration, coordination, and
should produce a better product.
What was indicated in the pilot we did in Missoula was that
that was, in fact, the case. In fact, many of the issues that
probably would have been exposed much later in the process
surfaced early, and discussions began among various parties
toward resolving those issues, and they were pleased with the
outcome.
We are trying to find ways to expedite a process that
should be driven by local interests and local concerns,
recognizing that these are public lands and every American may
have an interest in these lands. But local interest, locally
elected officials, cooperators, have a unique role to play.
FLPMA acknowledges that, and that is why they have a seat at
the table. Or, put another way, that is why they are in the
tent. They are a part of the process from start to finish, and
that would continue under this proposed rule. That would not
change.
So, I think the perception that this drives all decisions
back to Washington is a gross misunderstanding of what the rule
intends to achieve. It is, in fact, intended to capitalize on
lessons learned over a long period of time in planning to
respond to what we heard from local interests and from our own
planners, who said we have to change the process.
In fact, in part it reflects a conversation that Director
Kornze relayed to us as we began this process. In one of his
first meetings, he met with Governor Herbert and Secretary
Jewell. One of the requests that Governor Herbert made was,
``Can you please fix this process? It just takes too long, and
by the time you are done it is irrelevant.'' And this is what
we are seeking to do in the changes we have made in this
proposed rule.
Mr. Westerman. I yield back.
Mr. Gohmert. All right, thank you. I thank the witnesses
for their testimony. Thank you for being here.
Members of the committee may have some additional
questions. Under Committee Rule 4(h), they may have some
written questions to submit, in which case the record will be
held open for 10 additional days. The witnesses agree to
respond in the event there are questions--Ms. Clarke, Mr.
Lyons, Mr. McAfee, Mr. Fontaine, and Mr. Ogsbury.
All right, thank you, everyone. For the record, we have
comments from the Nevada Association of Counties dated May 25,
2016, and from the National Association of Counties, a letter
dated June 21, 2016. Without objection, those will be submitted
as part of the record, as well.
If there is no further business--hearing none, without
objection, the committee stands adjourned.
[Whereupon, at 11:25 a.m., the subcommittee was adjourned.]
[LIST OF DOCUMENTS SUBMITTED FOR THE RECORD RETAINED IN THE COMMITTEE'S
OFFICIAL FILES]
1. Letter dated June 22, 2016 addressed to Neil Kornze,
Director of the Bureau of Land Management, from
Ryan Sundberg, 5th District Supervisor of Humbolt
County, Eureka, California, expressing support for
BLM Planning Rule 2.0.
2. Letter dated June 22, 2016 addressed to Neil Kornze,
Director of the Bureau of Land Management, from
Mark Lovelace, 3rd District Supervisor of Humbolt
County, Eureka, California, expressing support for
BLM Planning Rule 2.0.
3. Letter addressed to Neil Kornze, Director of the Bureau
of Land Management, from the Lewis & Clark County
Board of Commissioners located in Montana,
expressing support for BLM Planning Rule 2.0.
4. Letter dated May 23, 2016 addressed to Neil Kornze,
Director of the Bureau of Land Management, from the
Missoula County Board of Commissioners located in
Montana, expressing support for BLM Planning Rule
2.0.
5. Letter dated May 12, 2016 addressed to Neil Kornze,
Director of the Bureau of Land Management, from the
Park County Board of Commissioners located in
Colorado, expressing support for BLM Planning Rule
2.0.
6. Letter dated June 21, 2016 addressed to Chairman Gohmert
and Ranking Member Dingell from the National
Association of Counties, providing comment on BLM
Planning Rule 2.0.
7. Testimony submitted by Public Land Solutions in response
to the oversight hearing dated July 13, 2016.
8. Testimony submitted by farmers of the Marcus Valley in
southwestern Colorado in response to the oversight
hearing dated July 13, 2016.
9. Letter dated May 25, 2016 addressed to Neil Kornze,
Director of the Bureau of Land Management, from
Director Clarke, providing comment on BLM Planning
Rule 2.0.
10. Letter dated May 25, 2016 addressed to Neil Kornze,
Director of the Bureau of Land Management, from the
Nevada Association of Counties, providing comment
on BLM Planning Rule 2.0.
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