Environmental Law Alert: Additional Potential Obstacles to Development: New Wilderness Designations

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U.S. Department of Interior Secretary Ken Salazar recently issued Secretarial Order 3310 directing the Bureau of Land Management (BLM) to "designate appropriate areas with wilderness characteristics under its jurisdiction as 'Wild Lands' and to manage them to protect their wilderness values." The Secretarial Order overturns without mentioning a Bush Administration's policy which that prohibited BLM from unilaterally protecting lands it finds have "wilderness qualities."

The Bush Administration policy was based on a 2003 settlement with the State of Utah which barred BLM from designating so-called "Wilderness Study Areas" ("WSAs"). Though BLM's Congressional authority to establish WSAs had expired in 1991, BLM had continued doing so until the settlement with Utah.

Under the new Secretarial Order, BLM seeks to avoid the legal issues involving WSAs by designating a new category, "Wild Lands." The Secretarial Order directs BLM to "protect wilderness characteristics through land use planning and project-level decisions unless BLM determines, in accordance with this Order, that impairment of wilderness characteristics is appropriate and consistent with other applicable requirements of law and other resource management decisions."

According to a statement released by the Department of the Interior with the new Secretarial Order, because "Wild Lands" designation can be made and later modified through a public administrative process, it differs from "Wilderness Areas" which are designated by Congress and cannot be modified except by legislation, and WSAs which BLM typically must manage to protect wilderness characteristics until Congress determines whether to permanently protect them as Wilderness Areas or modify their management.

Because criteria for characterizing lands as having "wilderness qualities" is highly subjective and can be made with relatively little Congressional oversight, the new Secretarial Order could make it significantly harder to site renewable energy projects, transmission lines, pipelines, and other "greenfield" projects on BLM land for the foreseeable future. Congressman Doc Hastings, new Chairman of the House Natural Resource Committee responded to the Secretarial Order with a promise that "The Natural Resources Committee will fully review this decision . . . and its impact on our nation's economic competitiveness and ability to keep and create jobs."

For more information on developing projects on public lands, implementation of the Secretarial Order and promised Congressional oversight, contact a key contributor.

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Key Contributors

Kevin J. Beaton
Aaron C. Courtney
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