Let’s Discuss: The Feinstein-Daines Wildfire Bill

When I googled this bill, I found many voices for and against but very little analysis. Now it seems to be a rarity for any House of Congress to produce bipartisan bills (let alone both) (or they are not so much covered in the press), so I thought it was worth us taking a look at the specifics. My comments are in italics.

According to Senator Feinstein’s website:

Earlier this month, Senators Feinstein and Daines introduced the Emergency Wildfire and Public Safety Act, a bipartisan bill to help protect communities from catastrophic wildfires by implementing critical wildfire mitigation projects, sustaining healthier forests that are more resilient to climate change and providing important energy and retrofitting assistance to businesses and residences to mitigate future risks from wildfire and power shutoffs. The House companion bill is being led by Reps. Jimmy Panetta (D-Calif.) and Doug LaMalfa (R-Calif.).

Here’s a link to a cpan link https://www.c-span.org/video/?475867-1/senate-hearing-wildfire-forest-management you can go to Feinstein’s remarks.
Here’s a section by section from Feinstein’s site, which includes more info on each section than I posted here.

Section 101 – Three new landscape-level, collaborative wildfire risk reduction projects:
 Requires the Forest Service to conduct three landscape-level, collaborative wildfire risk reduction projects in the West proposed by a Governor. Projects would be subject to a streamlined environmental review process and certain litigation protections.

Section 102 – Encourages the Forest Service and the Department of the Interior to increase the use of wildfire detection equipment.
 Directs the Department of the Interior and the Department of Agriculture to expedite the placement of wildfire detection equipment such as sensors and cameras and expand the use of satellite data to assist wildfire response.

Section 103 – Wildfire risk reduction activities near existing roads, trails, and transmission lines
 Establishes a new 3,000-acre categorical exclusion to accelerate management near existing roads, trails, and transmission lines.
 Background: According to the Pacific Biodiversity Institute, nearly 90% of wildfires begin within a half-mile of a Forest Service road.

I wondered about that and found this 2007 report from PDI.

Section 104 – Accelerating Post-Fire restoration and reforestation
 Establishes a new statutory tool to accelerate post-fire restoration and reforestation work on Forest Service land. Based largely on the Forest Service’s existing Emergency Situation Determination authority, this provision specifies that the agency must do environmental analysis only on the proposed post-fire project and the scenario of not doing any project, so long as the treatment area is not larger than 10,000 acres.

Section 105 – Codifying “New Information”
 Specifies that the Forest Service is not required to reinitiate plan-level consultation with the U.S. Fish and Wildlife Service following the finding of “new information” related to a listed species unless the “new information” is publicly available, peer-reviewed, and consistent with longstanding federal guidelines for scientific information. Allows for the agency to conduct informal, formal, or no consultation as appropriate and allows projects to continue during plan-level consultation.
This is known as the “Cottonwood Fix” relating to a court case which others here know much more about.

Section 106 – Hazard Mitigation Using Disaster Assistance

 Allows FEMA hazard mitigation grant funding to be used to install fire-resistant wires and infrastructure as well as for the undergrounding of wires.

Section 201 – Biomass Energy Infrastructure Program
 Establishes a new Department of Energy grant program to facilitate the removal of biomass from National Forest areas that are at high risk of wildfire and to transport that biomass to conversion facilities.
 Biomass conversion facilities located within areas of economic need and seek to remove dead or dying trees are prioritized. Grants are limited to $750,000.

Section 301 – California Exemption to Prohibition on Export of Unprocessed Timber
 Allows the export of unprocessed in timber of dead and dying trees in California. The exemption only applies after domestic mills have refused the unprocessed timber.

I tried to find out more about this but the U of Calif, my own alma mater, (sadly) does not seem to have anyone that I could identify as a forest economist. Any help locating a knowledgeable person on timber markets and the possibility of exports would be appreciated.

Section 401 – Innovative Forest Workforce Development Program
 Creates a competitive grant program to provide funds to non-profits, educational institutions, and state agencies to assist in the development of activities relating to workforce development in the forestry sector. Funds can be used for education, training, skills development, and education.

Section 403 – Western Prescribed Fire Center
 Establishes a Prescribed Fire Center in the West to train individuals in prescribed fire methods and other methods relevant to the mitigation of wildfire risk.

I like the idea of a Prescribed Fire Center but I’d want it to 1) understand and coordinate existing state, federal and NGO efforts, 2) identify gaps and solutions in a biennial report to Congress, and 3) commission research. Probably other things as well but I don’t think training by itself will overcome all the obstacles to increasing PB.

Section 403 – Retrofits for Fire-Resilient Communities
 Amends the Weatherization Assistance program to make materials that are resistant to high heat and fire and dwellings that utilize fire-resistant materials and incorporate wildfire prevention and mitigation planning eligible for funds.
 Increases the level of available funding to $13,000 and allows for increases with inflation.

Section 404 – Critical Infrastructure and Microgrid Program
 Establishes a new Department of Energy grant program to improve the energy resilience, energy efficiency, and power needs of critical facilities.
 Prioritizes rural communities with access to on-site back-up power and installation of electrical switching gear

For whatever reason, this seems to be more of a California problem.

What do you think of these? And what do you think is missing?

11 thoughts on “Let’s Discuss: The Feinstein-Daines Wildfire Bill”

  1. I see no money earmarked for hiring more permanent timber (and support) staff, (including Ologists). Landscape-level projects require armies of people working in the woods, and Congress still refuses to fund it. Remember, Temporary Employees can only work 1039 regular hours in a year. OPM needs to reduce that number of hours, to force the Forest Service to hire more permanent staff. (FTE’s be damned!)

  2. There are a lot of devils in the details, but here’s a couple of overarching thoughts I’ve had.

    §101. In theory, streamlined review and litigation requirements could be appropriate if a project were truly collaborative to the point that nobody disagrees with a jointly developed proposal (since only one action alternative would be considered). Otherwise, these kind of restrictions on public participation in public land management are red flags. Maybe if they get pretty specific on what would constitute collaboration (and not waive judicial review of that requirement).

    §104. The wording creates abundant ambiguity, and arguably could make any future risk of fire or disease into an emergency. Also, it uses the same “emergency situation determination” term to describe something that is different from the existing ESD, which would cause a lot of confusion. They need to admit that this is not limited to emergencies, and call it something else. (Better to drop this and just use existing authorities for real emergencies.)

    §105. I don’t think this serves any useful purpose (other than maybe Daines’ political campaign). “Cottonwood” has already been “fixed” with prior legislation addressing forest plan consultation for new species listings and critical habitat designation.

    This would supposedly address other new information. I am not aware that the Forest Service has ever reinitiated forest plan consultation based on new information outside of these circumstances, or incidental take triggers from the prior consultation (which it is not clear that this language would apply to), or where they have decided the new information warrants a change in the plan and they consult on that. I suppose this might apply to new information that a species is “present” in a project area, but that is a determination made by the Fish and Wildlife Service.

  3. This is puzzling at my level of understanding. Thanks Jon, for reminding me that I thought I understood something about it in 2018. I will see if I can find this out from someone who follows this issue.

    I am not a pro at understanding legislation (wish we could recruit someone!) but my read of the 2018 Bill’s history is that it never passed. It had a hearing, which is probably what created the interest.

  4. I’m sorry, but do we really believe OGC? I sure don’t: I can’t recall the last time OGC gave decent advice to their client. How many former agency employees on TSW have gotten top notch advice from that outfit?

    The first Cottonwood fix fixed what the USFS said was the problem, which was simply a failure to comply with a straightforward legal requirement that has been the law for decades. This new “fix” is creeping into areas that are again straightforward black letter law, but are a “hassle” for the Forest Service to deal with. That’s not a fix, it’s an exemption.

    Rather than focusing on these legal fixes to faux problems, how about we focus on getting the Forest Service the RESOURCES (money, people, training) even the Deputy Chief says they need?

    • I’ve gotten great advice from various OGC folks. One of my favorites was having a few attorneys on the same subject who disagreed with each other. I learned a great deal from the way they thought through their disagreements. I’m really surprised we would see that so differently, Susan. Of course, perhaps I dealt with a different set of attorneys.

      My point was that it would be interesting to discuss their views, but we can’t get access to those opinions via FOIA. It’s problematic to me that we are paying federal employees to find stuff out, but we can only find out what they are thinking, as the public, if they are not attorneys.. So if Legislative Affairs does an analysis, we can FOIA it (I did once and they said a year and a half later there were not responsive documents) but if OGC analyses the legal parts which seem critical in this legislation, then we can’t.

      • Yes, There’s a FOIA exemption (in the law) for attorney work products. You do get to see what the attorneys think in their litigation briefs, but that’s likely to be DOJ more than OGC. I have seen attorneys who prioritize “supporting” what the agency wants to do over giving them a good risk assessment, but it’s a mix.


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