Legal Basis for County Resource Management Planning

The authority for each county to make plans for the management of natural resources within the county derives directly from state law. In addition to this authority, provisions of federal law allow counties to participate in and influence the natural resource and land management plans of federal agencies both through use of these duly adopted county plans and through cooperative participation in the planning efforts for the federal lands. This discussion is intended only as a broad outline of the parameters for influence, not as an exhaustive dissertation of all possibilities.

County Planning Authority

Section 17-27a-401 of the Utah Code provides that "each county shall prepare and adopt a comprehensive, long-range general plan,” which addresses, among other provisions, the:

(a) present and future needs of the county; and

(b) growth and development of all or any part of the land within the unincorporated portions of the county.

The plan my also provide for:

(a) health, general welfare, safety, energy conservation, transportation, prosperity, civic activities, aesthetics, and recreational, educational, and cultural opportunities;...

(c) the efficient and economical use, conservation, and production of the supply of: (i) food and water; and (ii) drainage, sanitary, and other facilities and resources; (d) the use of energy conservation and solar and renewable energy resources; (e) the protection of urban development; (f) the protection or promotion of moderate income housing; (g) the protection and promotion of air quality; (h) historic preservation; (i) identifying future uses of land that are likely to require an expansion or significant modification of services or facilities provided by each affected entity; and (j) an official map.

In addition, the law provides that the plan may define the local customs, local culture, and the components necessary for the county's economic stability. (Utah Code §17-27a-401(4)) Moreover, a county may get access to certain data gathered and held by state agencies that may be of assistance in the county's planning process. (Utah Code §17-27a-402) However, the authority to plan does not give the county any direct jurisdiction over lands owned by the state or federal governments. (Utah Code §17-27a-304)

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Federal Land and Natural Resource Planning

Two of the major federal landowners in Utah , the Bureau of Land Management (BLM) and the Forest Service, are required to engage in land and natural resource planning processes, which can affect the use and development of natural resources. The Bureau of Land Management is required by Section 202 of the Federal Land Policy and Management Act of 1976 [FLPMA] to “develop, maintain, and ... revise land use plans which provide by tracts or areas for the use of the [BLM] lands.” Similarly, the Forest Service is required to “develop, maintain, and ... revise land and resource management plans for units of the National Forest System.” (16 U.S.C. §1604(a))

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Coordination and Consistency with State, Local and Tribal Government Plans

Both the BLM and the Forest Service are required to coordinate their land and natural resource planning efforts with those of state, local and tribal jurisdictions. For example, the BLM is required to:

1. become “apprised of State, local and tribal land use plans;
2. assure that consideration is given to those State, local and tribal plans that are germane to ... plans for public lands;
3. assist in resolving ... inconsistencies between Federal and non-Federal Government plans. (43 U.S.C. 1712(b)(9))

Specifically, state and local officials are “authorized to furnish advice to the [BLM] with respect to the development and revision of land use plans, ...guidelines, ... rules and ... regulations for the public lands.” (43 U.S.C. §1712 (b)(9)) This is significant because land use plans adopted by the BLM are required to “be consistent with State and local plans to the maximum extent consistent with Federal law and the purposes of [FLPMA].” (43 U.S.C. §1712(b)(9)) The duly adopted regulations of the BLM further define this consistency requirement by requiring that the BLM's resource management plans shall be “consistent with officially approved or adopted resource related plans, and the policies and programs contained therein, of ... State and local governments and Indian tribes, so long as the guidance and resource management plans are also consistent with the purposes, policies and programs of Federal laws and regulations applicable to public lands.” (43 C.F.R. §1610.3-2(a)) The term “consistent” is defined to mean that the duly adopted BLM plans for the natural resources within the county “will adhere to the terms, conditions, and decisions of officially approved and adopted resource related plans” of local and state governments. (43 C.F.R. §1610.3-1)

The BLM regulations also provide that “in the absence of officially approved or adopted resource management plans of ... State and local governments ... [Federal] resource management plans shall, to the maximum extent practical, be consistent with officially approved and adopted resource related policies and programs of ... State and local governments.” However, as before, this consistency only applies to the extent the policies and programs are “consistent with the policies, programs and provisions of Federal laws and regulations applicable to public lands.” (43 C.F.R. §1610.3-2(b))

The Forest Service is required to coordinate “with the land and resource management planning processes of State and local governments.” (16 U.S.C. §1604(a)) The Forest Service's planning regulations state that “the Responsible [Forest Service] Official must provide opportunities for the coordination of Forest Service planning efforts...with those of other resource management agencies." Furthermore, the agency's planning regulations provide that "the Responsible Official should seek assistance, where appropriate, from other state and local governments...to help address management issues or opportunities.” (36 C.F.R. 219.9) Although there is no explicit parallel requirement for consistency of Forest Service plans with plans of state, local and tribal governments as that contained within FLPMA for the BLM Resource Management Plans, the Forest Service is required to “discuss any inconsistency” between the proposed plan's provision and “any approved State or local plan and laws.” Further, if any inconsistencies exist, the plan must “describe the extent to which the [Forest Service] would reconcile its proposed action with the plan or law.” (40 C.F.R. §1506.2(d))

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Federal Planning Criteria

Counties may use duly adopted plans, programs or policies to directly influence federal natural resource and land planning efforts by informing the federal agencies of the plans and their provisions. As part of these plans, counties may want to make known their interpretation of the criteria the federal planning agencies must consider as land and resource management plans are developed. This could, for example, be used to define, among other things, the desired future conditions for the county's economy, lifestyle, or recreational needs of the citizens, and the necessary use of the federal natural resources to achieve these desired future conditions.

Forest Service

The National Forests were originally set aside to provide a continuous supply of timber and for the protection of water sources for local communities and agricultural needs. Later, through the adoption of the Multiple-Use Sustained Yield Act of 1960, Congress determined that the forests should be “administered for outdoor recreation, range, timber, watershed, and wildlife and fish purposes,” which purposes were declared to be “supplemental to, but not in derogation of” the original purposes. (16 U.S.C. §528)

The Forest Service is required to “use a systematic interdisciplinary approach to achieve integrated consideration of physical, biological, economic, and other sciences” in its land and resource plans. The Forest Service must assure that the plans “provide for multiple use and sustained yield of the products and services obtained therefrom in accordance with the Multiple-Use Sustained-Yield Act of 1960, and, in particular, include coordination of outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness.” The plans must “determine forest management systems, harvesting levels [of timber] and procedures” based upon all of the uses mentioned above, the definitions of multiple use and sustained yield as laid out in the law, and the availability of lands and their suitability for resource management. (16 U.S.C. §1604(b) and (e))

The regulations of the Forest Service specifically define principles of planning for the Forest Service's natural resources. (36 C.F.R. §219.3)

a) Land management planning is an adaptive management process that includes social, economic, and ecological evaluation; plan development, plan amendment, and plan revision; and monitoring. The overall aim of planning is to produce responsible land management for the National Forest System based on useful and current information and guidance. Land management planning guides the Forest Service in fulfilling its responsibilities for stewardship of the National Forest System to best meet the needs of the American people. (36 C.F.R. §219.3(a))

The Forest Service is also required, as part of the development and interpretation of information for plans, to consider and incorporate the concept and conditions of sustainability. “Sustainability…has three interrelated and interdependent elements: social, economic, and ecological.” (36 C.F.R. §219.10)

a) The overall goal of the social and economic elements of sustainability is to contribute to sustaining social and economic systems within the plan area. To understand the social and economic contributions that National Forest System lands presently make, and may make in the future, the [Forest Service] must evaluate relevant economic and social conditions and trends as appropriate during plan development… (36 C.F.R. §219.10 (a))

Expectations for ecological sustainability as well as ecosystem and species diversity are also provided.

Bureau of Land Management

FLPMA provides that the BLM must manage the lands under its jurisdiction (called “public” lands) “in a manner that will protect the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archeological values,” and will provide for, among other things, “outdoor recreation and human occupancy and use,” and “food and habitat for fish and wildlife and domestic animals.” However, the BLM must specifically manage the public lands “in a manner which recognizes the Nation's need for domestic sources of minerals, food, timber, and fiber from the public lands.” (43 U.S.C. §1701(8) and (12))

The BLM is required to “use and observe the principles of multiple use and sustained yield” and, just as the Forest Service must, “use a systematic interdisciplinary approach to achieve integrated consideration of physical, biological, economic and other sciences” in the preparation of its plans. (43 U.S.C. §1712(c)(1) and (2)) The BLM must also “consider present and potential uses of the public lands” and “provide for compliance with applicable pollution control laws, including State and Federal air, water, noise, or other pollution standards or implementation plans.” (43 U.S.C. §1712(c)(5) and (8))

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Multiple-Use and Sustained Yield

Both the Forest Service and the BLM are required to manage the lands under their jurisdiction pursuant to the principles of “multiple use” and “sustained yield.” These terms have been defined within the provisions of FLPMA for the BLM and within the provisions of the Multiple-Use Sustained Yield Act of 1960 for the Forest Service. Both definitions are lengthy and worthy of careful study. Yet it is apparent that the definitions are not crystal clear, leading to differing interpretations concerning development or preservation of the natural resources and the environment.

The definitions do state, however, that multiple use is to be considered in the context of the best combination of land uses that meet the present and future needs of the nation with respect to “recreation, range, timber, minerals, watershed, wildlife and fish, and natural, scenic, scientific, and historical values.” Futhermore, it states that these resources are to be managed in a “harmonious and coordinated” manner that does not lead to “permanent impairment of the productivity of the land and the quality of the environment.” Finally, multiple use does not, by definition, mean the “greatest economic return or the greatest unit output” for the natural resources. (43 U.S.C. §1702(c). See also 16 U.S.C. §531(a)) For the Forest Service, the “establishment and maintenance of areas of wilderness” is specifically determined to be consistent with the principle of multiple use. (16 U.S.C. 529.)

The term “sustained yield” is defined to mean the achievement of “a high level annual or regular periodic output of the various renewable resources of the public lands consistent with multiple use.” (43 U.S.C. §1702(h). See also 16 U.S.C. §531 (b))

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National Environmental Policy Act and Cooperating Agency Status

Preparation of land and natural resource management plans by the BLM and the Forest Service is a major federal action requiring the preparation of an Environmental Impact Statement (EIS) under the provisions of the National Environmental Policy Act (NEPA). (42 U.S.C. §4231 et. seq. ) NEPA requires federal agencies to fully disclose the nature and condition of the environment within the area of interest. Under NEPA, agencies must formulate various alternatives for proposed management and to compare those alternatives to a “no-action” alternative of continuing the current management scheme. NEPA specifically requires the agency preparing the EIS to seek decisions that, among other things, “attain the widest range of beneficial uses of the environment without degradation,” “preserve important historic, cultural, and natural aspects of our national heritage,” and “achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life's amenities.” (42 U.S.C. 4331(b))

The development of an EIS by a federal agency as part of the process to decide upon a land and resource management plan or proposed project has a number of well-established steps. Each of these steps provides an opportunity for comment by local government based upon their own plans and policies. These steps, in general, are:

•  the “Scoping” of the issues;
•  preparation of an “Analysis of the Management Situation;”
•  preparation of the various “Alternatives” with the associated necessary management scenarios and conditions;
•  issuance of a “Draft EIS” for public comment;
•  issuance of a Final EIS and the “Proposed Record of Decision,” which lays out the proposed final decision including the terms and conditions for management of the lands and natural resources for the life of the plan or for that specific project.

Issuance of the Proposed Record of Decision is followed by a period for protest by interested parties, which, upon resolution of the protests, is followed by adoption of the Record of Decision and implementation of the plan.

For plans of the BLM, the Governor of the state is given an opportunity for a “consistency review” immediately following the issuance of the Proposed Record of Decision. BLM is required to “identify any known inconsistencies with State or local plans, policies, or programs,” and to “assist in resolving, to the extent practical, inconsistencies between Federal and non-Federal Government plans.” The Governor is given 60 days to “identify inconsistencies and provide recommendations in writing” in response. The BLM must accept the recommendations of the Governor if the BLM State Director determines that the recommendations “provide for a reasonable balance between the national interest and the State's interest.” (43 U.S.C §1712(b)(9) and 43 C.F.R. §1610.3-2(e). See also 40 C.F.R. _ 1506.2(d))

The federal Council on Environmental Quality has issued regulations related to the implementation of NEPA. One of these regulations provides for the elimination of duplication with state and local processes. The regulation requires agencies to “cooperate with State and local agencies to the fullest extent possible to reduce duplication between NEPA and State and local requirements.” This cooperation specifically includes:

(1) Joint planning processes.
(2) Joint environmental research and studies.
(3) Joint public hearings ...
(4) Joint environmental assessments. (40 C.F.R. §1506.2(b))

The Council on Environmental Quality has also supported an invitation to state and local governments to become “cooperating agencies” in the preparation of federal land and natural resource management plans and associated EISs. The invitation to become a cooperating agency is not based on the fact that state or local government are entities that may be affected by the outcome of the process. Instead, cooperating agency status is specifically based upon state or local government's position as professionals having jurisdiction by law in the planning area or professionals holding special expertise in an issue that will be addressed in the analysis or decision (memo from James Connaughton, Chairman of the CEQ). This status does not relieve the federal agency of the responsibility as the decision-maker, and does not guarantee a decision that the cooperating agency may necessarily favor. Cooperating agency status does allow the cooperators to participate in the scoping process, the inventory of data and analysis of current situation process, the preparation of alternatives, the impact analysis, and in the preparation of the draft and final EISs. Participation as a cooperating agency in federal planning efforts will specifically require the cooperators to respect the timing and confidentiality inherent in the federal process. Failure to adhere to these conditions may lead to revocation of cooperating agency status. BLM has proposed a regulatory rule change that would solidify the cooperating agency concept in BLM planning, stating that a “cooperating agency relationship” would complement the requirement under FLPMA to coordinate with state and local government. (69 F.R. 43378.)

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State Planning Coordinator Responsibilities

The State Planning Coordinator is authorized to prepare plans, programs and policies for the state that, among other things:

•   “incorporate the plans, policies, programs, processes, and desired outcomes of the counties where the federal lands or natural resources are located, to the maximum extent consistent with state and federal law...;”
   
• “develop, research, and use factual information, legal analysis, and statements of desired future condition” for regions of the state, "as necessar to support the plans, policies, programs, processes, and desired outcomes of the state and counties where the federal lands or natural resources are located;"
   
• establish and coordinate agreements with federal agencies that facilitate state and local participation in the development, revision and implementation of federal plans.

( Utah Code §63-38d-401)

The state law continues by establishing findings that shall be considered by state and local governments as they interact with the federal agencies in the preparation of federal land and natural resource management plans. These findings provide the framework for the necessary considerations of state and local plans and policies, which the federal agencies are required to consider as part of their planning efforts. The findings include a definition of multiple use that emphasizes support for state and local plans that are designed to produce and provide the watersheds, timber, food, fiber, livestock and wildlife forage, and minerals necessary to meet present needs and future economic growth and community expansion, as well as meet the recreational needs and the personal and business related transportation needs, of the citizens of the state without impairing the productivity of the land.

The findings also indicate, for example, that: the federal government must seek water rights within the state appropriation system; federal agencies must support the purposes of the school trust lands compact in their land management decisions; development of the solid, fluid and gaseous minerals of the state is important to the state economy; wildlife is an important part of the recreational opportunity within the state and the economy; and that transportation and access routes are vital to the state's economy. Furthermore, the findings indicate parameters for state and local government's support or opposition to specific federal land planning issues such as Areas of Critical Environmental Concern, Wild and Scenic River studies, exchanges of land, agricultural production and open space, management of forests in a healthy manner, off-highway vehicle use, and predator control. (See Utah Code §63-38d-401(6) and (7) for the complete listing of findings.)

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Federal Advisory Committee Act

The Federal Advisory Committee Act of 1972 (FACA) was enacted to formalize and stabilize the process by which federal agencies receive advice from interested parties. It establishes conditions under which federal agencies may establish such committees, how they must be composed and chartered, and requires meetings and activities to be open to the public. FACA does not affect the requirement under FLPMA to coordinate with state and local governments, nor does it affect the establishment of a cooperating agency relationship. FACA also does not apply to any state or local committee or other group established to make recommendations to state or local governments about any issue, including land and natural resource utilization issues. (5 U.S.C. Appendix)

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