By Grant Snyder*
Conservationists worry that the Trump Administration’s policies will lead to environmental disaster. These fears often focus on potential federal land transfers to the states. The anxiety about transfers stems from the thought that smaller states would be unable to manage transfer lands. The states would in turn sell the land to mining, energy, and ranching interests. For example, Wisconsin is currently selling 10,000 acres of state land to reduce their budget.
The potential fire sale that would result from the transfer of lands would likely enrich mining and oil interests, while reducing the public’s access to the land. But miners and energy companies already use federal land today. How are companies allowed to use public land and how will that process change in the Trump Administration?
Under the General Mining Act of 1872, prospectors can claim qualifying public domain land. Unavailable land includes areas such as American Indian reservations, national monuments, parks, and wilderness areas.
The process begins with staking a claim. The staked land must have a “valuable mineral deposit.” Broadly, a valuable mineral is anything that a personal of ordinary prudence could sell at a profit. An exception is coal. Since December 2015, the Department of Interior imposed a moratorium on federal coal leasing, refusing to grant mining permits for coal extraction.
To get mining permits today, companies must generally obtain two permits under the Clean Water Act, a section 404 permit and a National Pollutant Discharge Elimination System (NPDES) permit. The 404 permit is necessary for any organization that wants to discharge into a “navigable water” under the Clean Water Act.
After Congress passed the General Mining Act, oil interests leapt at the opportunity to secure well sites. Fearing a drain on oil reserves, Congress passed the Mineral Leasing Act of 1920 to slow claims on public land. The process created a leasing program for fuels – including oil, coal, and shale gas – where instead of interests claiming land, the government leases the land to the highest bidder and receives a percentage of sales.
The Obama Administration sought to curb oil production on federal lands by increasing the time it takes to get a permit, reducing the number of leases, and mandating separate applications to drill for each oil and gas well. President Obama also withdrew portions of the Artic and Atlantic Oceans from drilling.
The Trump Administration seems unlikely to transfer lands but will likely loosen current restrictions on federal lands. The administration may open up lands and waters that are currently restricted, such as national parks and offshore waters, to mining and drilling. The new Secretary of the Interior stated in his confirmation hearing that he would “consider an expansion of energy drilling and mining on federal lands” but promised to maintain federal ownership over public lands. Conservationists rebuked Republicans in January 2017 when Rep. Chaffetz introduced a bill that allowed for some land transfers to state governments.
The Trump Administration has already taken some moves to make mining easier. In February 2017, the administration nullified a regulation prohibiting surface-mining operations from dumping in nearby waterways. Trump has also promised to end the Department of Interior’s moratorium on coal leasing.
The administration’s most significant move in mining will likely be the reformation of the Clean Water Act. The administration promised to kill the Waters of the United States rule, which expanded the number of federally protected waterways. The jurisdiction of the Clean Water Act is difficult to interpret. In 2006, the Supreme Court split on what waterways the government is able to cover. New EPA Director Scott Pruitt will likely be able to write a new rule defining the scope of the Clean Water Act. But, environmental and citizen groups will inevitably challenge any new rule as under-inclusive. If the administration was able to rewrite the rule, it could mean that mining interests located far enough away from “navigable waters” could dump more freely into waterways.
President Trump’s oil & gas policies have been inconsistent. Trump signaled throughout the campaign that he would increase drilling in federal lands and waters. This would involve withdrawing restrictions on certain federal sites and rewriting regulations that require organization such as the BLM to conduct environmental reviews and seek public comment before opening lands to drilling. Trump’s largest inconsistency comes from his promises to open up federal land while also boosting the number of jobs in the coal industry. With expanded access to federal land, natural gas production would likely increase, further crippling the coal market in the United States.
For the time being, the President will likely continue to face pressure to preserve federal ownership of lands for recreational purposes, but will open up previously closed lands to development. If Trump feels indebted to coal voters, he may decide to limit natural gas permitting on federal lands, while ending the moratorium on coal leasing.
The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.
*Grant Snyder is a Junior Editor on MJEAL. He can be reached at firstname.lastname@example.org.
 Kirk Siegler, Push to Transfer Federal Lands to States Has Sportsmen on Edge, Nat’l Pub. Radio (Jan. 5, 2017), http://www.npr.org/2017/01/05/508018599/push-to-transfer-federal-lands-to-states-has-sportsmen-on-edge.
 Hal Herring, Transferring Control of Federal Lands Would Devastate Hunting and Fishing, Field and Stream (Aug. 18, 2016), http://www.fieldandstream.com/articles/hunting/2016/08/transferring-control-of-federal-lands-would-devastate-hunting-and-fishing.
 Bureau of Land Mgmt,, Mining Claims and Sites on Federal Lands (2011).
 30 U.S.C. § 29 (1925).
 See U.S. v. Coleman, 390 U.S. 599 (1968) (valuable when “extracted, removed, and marketed at a profit.”); Castle v. Womble, 19 Pub. Lands Dec. 455 (1894) (“a person of ordinary prudence would be justified in the further expenditure of his labors and means, with a reasonable prospect of success in developing a valuable mine.”).
 Juliet Eilperin & Steven Mufson, Trump to Roll Back Obama’s Climate, Water Rules Through Executive Action, Wash. Post (Feb. 20, 2017), https://www.washingtonpost.com/news/energy-environment/wp/2017/02/20/trump-to-roll-back-obamas-climate-water-rules-through-executive-action/?utm_term=.4da07c05e696.
 See Environmental Protection Agency, Section 404 Permit Program (2017).
 See Environmental Protection Agency, Industrial Wastewater (2017).
 Jack Caldwell, U.S. Mine Permitting, TechnoMine, http://technology.infomine.com/reviews/permitting/welcome.asp?view=full (last visited Feb. 26, 2017).
 Samuel Hayes, Conservation and the Gospel of Efficiency: The Progressive Conservation Movement, 1890–1920, at 89-90 (Univ. of Pittsburgh Press, 1999).
 See Bureau of Land Mgmt., supra note 3.
 Oil and Gas Production on Federal Lands Still a Disappointment, Inst. For Energy Res. (Apr. 24, 2014), http://instituteforenergyresearch.org/analysis/oil-and-gas-production-on-federal-lands-still-a-disappointment/.
 Darryl Fears & Juliet Eilperin, President Obama Bans Oil Drilling in Large Areas of Atlantic and Arctic Oceans, Wash. Post (Dec. 20, 2016), https://www.washingtonpost.com/news/energy-environment/wp/2016/12/20/president-obama-expected-to-ban-oil-drilling-in-large-areas-of-atlantic-and-arctic-oceans/?utm_term=.ca4c5973fb91.
 Valerie Volcovici and Timothy Gardner, Trump Interior Nominee Would Consider Moral Drilling on Federal Land, Reuters (Jan. 17, 2017), http://www.reuters.com/article/us-usa-congress-zinke-idUSKBN1511DQ.
 Juliet Eilperin, Facing Backlash, Utah Rep. Jason Chaffetz Withdraws Bill to Transfer Federal Land to the States, Wash. Post (Feb. 2, 2017), https://www.washingtonpost.com/news/energy-environment/wp/2017/02/02/facing-backlash-utah-rep-jason-chaffetz-withdraws-bill-to-transfer-federal-land-to-the-states/?utm_term=.311979cadc71.
 See Eilperin, supra note 7.
 Elizabeth Shogren, Understanding Donald Trump’s Plains for Oil Drilling, Federal Lands, and Clean Energy, Newsweek (Jan. 24, 2017), http://www.newsweek.com/trump-energy-oil-environmental-plan-547642.
 See Rapanos v. U.S., 547 U.S. 715 (2006).
 See Ariel Wittenberg, Long Slog Likely if Trump EPA Attempts WOTUS Do-Over, Energy and Env’t News (Feb. 10, 2017), http://www.eenews.net/stories/1060049868.
 See Shogren, supra note 19.
 See id.