On the Bizarre Side: the Forest Section of the Reconciliation Bill

From the AFRC newsletter:

The reconciliation package would also provide the Forest Service with $14 billion for forest restoration and hazardous fuels reduction projects over ten years. $10 billion would be restricted to activities inside a narrowly defined Wildland Urban Interface (WUI) and $4 billion could be used outside this area. Unfortunately, the funding includes other nonsensical policy restrictions that would make the activities unimplementable.

For example, the legislation would require that every acre of WUI be “effectively treated to prevent the spread of wildfire” before the $4 billon in non-WUI funding could be spent. The Forest Service would likely face litigation based on this impossible standard. Meanwhile, if the agency miraculously treated every acre of WUI, the legislation restricts the $4 billion that can be spent outside the WUI to projects that are “non-commercial” in nature and comply with additional restrictions for old growth and “ecological integrity.”

Here is the text of the bill.. sounds like a wish list developed by (some but not other) ENGO’s. Based on my previous work, rounding up different ENGO’s points of view on hazardous fuel treatments, this sounds like the writers of the legislation listened to some and ignored others. I wonder why the ones who did were so predominant, and why the D’s from affected areas didn’t express concerns (or weren’t they listened to, or is this bill so big and moving so fast they didn’t have a chance?). Whichever it is, it is of concern that so much money would go for things that are designed to satisfy a relatively small contingent of interests.

The problem is that the science is leaning toward strategic fuel treatments designed to support suppression activities and help them protect key ecological attributes and watersheds, along with communities. So these legislators aren’t keeping up with current thinking.

) $10,000,000,000 for hazardous fuels reduction projects within the wildland-urban interface;
3 (2) $4,000,000,000 for, on a determination by
4 the Secretary that hazardous fuels within the
5 wildland-urban interface have been effectively treated to prevent the spread of wildfire to at-risk communities, hazardous fuels reduction projects outside
8 the wildland-urban interface that are—
9 (A) noncommercial in nature, except on a determination by the Secretary, in accordance 11 with the best available science, that the harvest 12 of merchantable materials is ecologically necessary for restoration and to enhance ecological integrity, subject to the requirement that the 15 sale of merchantable materials shall be limited
16 to small diameter trees or biomass that are a
17 byproduct of projects under this paragraph;
18 (B) collaboratively developed; and
19 (C) carried out in a manner that—
20 (i) enhances the ecological integrity and achieves the restoration of a forest ecosystem;
23 (ii) maximizes the retention of old growth and large trees, as appropriate for the forest type; and

I got a chuckle out of “Secretary’s determination” that the “harvest of merchantable materials is ecologically necessary for “restoration” plus the sale of merchantable materials shall be limited to “small” diameter trees.. It seems to me that harvest will never be necessary, when you can always take the material offsite and burn it in piles instead.

Which doesn’t seem to fit any type of climate-related at all. Removing material can be good, selling them is bad, so burning them in the air exuding carbon and particulates is better. And as I’ve said before, it doesn’t seem like this country has so much money that we can afford to legislate out selling material. Some would say, particularly so if this bill passes.

There are a variety of other odd and chuckle-worthy bits in this bill- even just in the forest section. And it’s highly casual with large sums of money. If I had a D rep, I’d be reaching out.

33 thoughts on “On the Bizarre Side: the Forest Section of the Reconciliation Bill”

  1. Wasn’t aware this was in the bill. Sounds like maybe there’s more latitude than it appears due to the Secretary’s determination language. Some additional funding for fuel management should be welcome if it can’t get sucked up by suppression.

    • Yes but can you imagine the Secretary (of Agriculture) who presumably has many things on her/his plate determining that it’s ok to sell brush from a 500 acre fuel treatment project? And if the Secretary is going to delegate it to say, the Chief, who can conceivably delegate to the RF to the Forest Supe, what’s the point?

      • Sharon: When Congress says “Secretary,” it means the federal employee decision-maker who has been delegated the authority to make a decision on behalf of the person above, i.e., the chain-of-command that starts with the Secretary. The necessary delegations of decision-making authority have already been made long ago. “The Secretary shall” language can be found in almost all public land laws, e.g., NFMA — “The Secretary shall begin to incorporate the standards and guidelines required by this section in plans for units of the National Forest System;” “The Secretary shall provide for public participation in the development, review, and revision of land management plans.” You don’t think the Secretary theirselves does these tasks? Or that the Secretary theirselves has to delegate each and every one in a separate decision to the appropriate minion?

        • Thanks for the clarification, Andy! There are two determinations by the Sec in this paragraph
          – on a determination by
          4 the Secretary that hazardous fuels within the
          5 wildland-urban interface have been effectively treated to prevent the spread of wildfire to at-risk communities, hazardous fuels reduction projects outside.. ” would that be a national determination? a District determination?

          It sounds like a potential legal hook.

          Then there’s “except on a determination by the Secretary, in accordance with the best available science, that the harvest of merchantable materials is ecologically necessary for restoration and to enhance ecological integrity, subject to the requirement that the sale of merchantable materials shall be limited to small diameter trees or biomass that are a byproduct of projects under this paragraph;” is that a statement by the District in the EA that selling brush is ecologically necessary, compared to burning it in situ? Seems like that would be a hard case to make.

          What we seem to have is funding whose availability is bristling with legal hooks and “ecological integrity”.. reminds me of the 2012 Planning Rule. Sometimes we consider wildfire a climate emergency, and other times (on federal land, say) other concerns are more important. Like “ecological integrity”. Well, OK then.

          • What this bill reminds me of is the Healthy Forest Restoration Act (“HFRA”). HFRA, too, authorizes and/or requires “the Secretary” to do a bunch of things, which are delegated down the chain-of-command. HFRA, too, attaches strings (in your vernacular, “legal hooks”), e.g., “the Secretary shall carry out a covered project in a manner that:

            (A) focuses largely on small diameter trees,
            thinning, strategic fuel breaks, and prescribed fire to
            modify fire behavior, as measured by the projected
            reduction of uncharacteristically severe wildfire
            effects for the forest type (such as adverse soil
            impacts, tree mortality or other impacts); and
            (B) maximizes the retention of large trees, as
            appropriate for the forest type, to the extent that the
            trees promote fire-resilient stands.

            I searched Lexis to see how the FS has been doing in HFRA-related cases, e.g., “Ultimately, Plaintiffs’ insistence that no old growth can be removed under HFRA is not consistent with the statute and their old-growth challenge fails.” Native Ecosystem Council v. Marten, 2018 U.S. Dist. LEXIS 196891.

            Of the 26 cases cited in a “Health Forest Restoration Act” search, in only one did the ENGO prevail on its HFRA claim. That case turned on how many action alternatives HFRA requires be assessed in the NEPA document. Idaho Conservation League v. United States Forest Serv., 2014 U.S. Dist. LEXIS 31479.

            It doesn’t look like the sky will fall on the Forest Service if this bill becomes law.

            • Andy, I actually like the HFRA language and seem to vaguely remember that it was hammered out over a period of time.

              My point wasn’t that the “sky will fall” my point was that I don’t think it makes sense and it could be better. Also the language is not in keeping with the majority of the views of ENGO’s as expressed in the USDA Climate Smart comments that I reviewed specifically about fuel treatments.. so I do wonder how it got there and why it’s staying.

  2. It looks like just another example of Congress not even understanding the forest problems. They can’t come up with a coherent solution if they don’t (or won’t) understand the problems. Part of the problem is conspiracy theories (and agenda-based ‘science’), coming from both sides. There is also the idea that Republicans don’t want to spend the nation’s money on blue States.

  3. There is a huge amount of latitude in the language and I would think that strategically-placed treatments to support suppression that helps maximize the retention of large diameter trees would be allowed. The language seems like a good-faith effort to limit forest management activities to those that have an objective *beyond only* forest products removal — but does not preclude commercial harvesting that intersects with other objectives.

    • Mebbe my English comprehension needs a tuneup, but r, on a determination by
      4 the Secretary that hazardous fuels within the
      5 wildland-urban interface have been effectively treated to prevent the spread of wildfire to at-risk communities, hazardous fuels reduction projects outside
      8 the wildland-urban interface that are—
      9 (A) noncommercial in nature, except on a determination by the Secretary, in accordance 11 with the best available science, that the harvest 12 of merchantable materials is ecologically necessary for restoration and to enhance ecological integrity, subject to the requirement that the 15 sale of merchantable materials shall be limited
      16 to small diameter trees or biomass that are a
      17 byproduct of projects under this paragraph;

      I read “subject to” the limit that they are “small diameter” trees. So.. I think it precludes harvesting of medium or large diameter trees. I didn’t see a definition… so… I kind of see for practical purposes (not wanting to explore a definition in court) I do see it as effectively precluding garden-variety commercial harvests.

      Also of interest is 9,000,000,000 to award grants to a Tribal, State, or local government, a regional organizaion, a special district, or a nonprofit organization to support, on non-Federal land, forest restoration and 19 resilience projects, including projects to reduce the 20 risk of wildfires and establish defensible space 21 around structures within at-risk communities;

      So it seems OK to do the exact same projects off Federal land. I don’t think that that can actually be a “science-based” policy as the science doesn’t change based on ownership. The concept (commercial is OK on non-fed, not on fed) makes me scratch my head.

    • So, where does the Sierra Nevada thinning projects fit in? They have multiple purposes and needs. They do more than just “products removal”. There is durable social acceptance of these projects, too. Those Forests don’t seem to have the personnel or expertise to do more than what the ASQ currently is.

      Additionally, who is going to inspect all the work of any extra non-commercial projects? The Forest Service doesn’t have ‘extra useful people’, with nothing to do. Of course, there will be more fire suppression people, if they manage to get much hiring done through a notoriously-slow process that is known as “Alburquerque”.

  4. Sharon, your last point is a good one re: what is permissible on federal versus non-federal lands given that the bill is trying to lead with a science-based approach.

    I would also highlight your question regarding why we need both requirements that all commercial harvest be a “byproduct” of restoration AND that that material MUST be small-diameter or biomass? Shouldn’t the first requirement suffice and, if the intent is to lead with what is needed on the ground based on the best available science, then isn’t the second requirement normative rather than positive?

    It also highlights this ongoing tension regarding the degree to which the Forest Service should plan their activities – particularly those that have or could produce salable products–with cost in mind? There are many that believe that the Forest Service should not engage in below-cost timber sales, and yet, many of these same people seem to believe that the Forest Service also should not take into account available markets and the potential revenue associated with timber removal of all kinds – restoration, fuel reduction, thinning, etc. when planning projects. And yet, no one is envious of the 4FRI and wishing they were in that situation.

  5. The problem, Sharon, is the FS (aka The Secretary) has discretionary authority that has been abused re forest “restoration” all too frequently in the last few years and must be reigned in – and this legislation does that. Are 20, 40, 60+ acre “regeneration” cuts (ie clearcuts) “restoration? We are told forests are “the wrong mix” of species or “too many trees” per acre — even in the sub alpine zone? The revised Colville NF LRMP allows up to 1,000 acre regeneration or larger cuts, but hey, mostly (we are told) just 40 acre in size. Hmmm — history repeats.

    The WUI definition has been misapplied tens of miles from any structure let alone the real Wildland Urban Interface zone. Forest typing, too, is often incorrect – like dry Douglas fir for instance, regardless of Plant Association Group, entire watersheds are deemed dry DF because it allows much more latitude to log more trees/acre and large DF based on a photo or two that represents a small slice of a HUC 5 watershed 50 miles distant. Of course there are instances where this has been correctly applied, however, frequently its just a few units within a larger (30K to 50K) HUC. Historic Range of Variability applied by the FS is used as the rationale for cutting every tree 50′ to 100′ spacing from ponderosa pine – in a forests that clearly were historically and (and today) mesic-wet NRM mixed conifer. So R6 says Forests can cut up to 25″ dbh DF because, after all, those trees never existed historically because – (fill in the blank) – and are only present because the efficacy of FS fire fighting.

    Small diameter trees >4″ are of commercial grade. Forest restoration can be accomplished without cutting big trees – which there is a paucity of on a continental scale — without clearcuts and most definitely where it is most urgently needed in the Wildland Urban Interface.

    We are told even when forests burn outside of the WUI dead trees (and some green too) must be salvage logged to prevent a re-burn? Fire is bad, fire is good – apparently only when silviculture says so?

    I support true forest restoration and this legislation’s priorities are necessary to insure the most urgent needs (WUI) are met and not just another ruse of a lobbying campaign to restore national forest logging to its former, corporate-friendly, “pace & scale.”

    National Forests are ecosystems, not a tree farms.

    • Coleman,
      A tree with a 4″ dbh is not merchantable for most mills except for post and poles or for biomass/pulp. While log sections down to a 4″ small-end diameter can be used to make products like studs, IN SOME CASES, that capacity is very limited and even sawmills that have re-tooled to process such small diameter logs can still only run a portion of their total inputs in those smaller size classes and remain viable. It is still true that the recovery on small-diameter timber is much smaller than on, say, trees >10″ dbh. The point here is that sawmills need a mix of sizes to stay in the black and cover their fixed costs and cannot process ONLY small-diameter trees and stay in business, so writing legislation that requires that all byproducts are small-diameter or biomass is only going to put more pressure on private lands to provide those larger logs, amiright?

      I would also like to see your evidence that widespread clearcutting is still occurring on federal lands. Can you quantify the number or proportion of acres that were classified as “regeneration” harvests versus something else?

      • Hew saw mills take down to 4″ tops and of course there is CLT and fiber. Fear not, there’s a use for small diameter wood.

        • In Forest Service timber projects, any tree under 10.0 inches in diameter is considered to be biomass, or waste, to be piled in the landings. Biomass doesn’t pay its way out of the woods, by itself. The harvest of biomass (in any form) has to be appraised for, and usually paid for, with logs (in a nutshell). I’ve worked on roadside hazard tree projects which required removal of all logging slash. Most of these non-commercial tasks embedded into projects are paid for with logs, with less revenue going into the General Fund.

    • But Coleman, my point is that WUI first is not a bad idea, but it perhaps precludes the use of PODS. https://forestpolicypub.com/2021/05/13/changing-the-game-using-potential-wildfire-operational-delineation-pods-for-a-better-future-with-fire/

      So the idea that “you should always do WUI first” may not be correct from the standpoint of protecting communities, keeping firefighters safe, etc.

      I understand that you might be worried about the timber industry returning to its glory days, however it has been 30-40 years now since those days, and in many states we wish we had more and more variety of timber industry- whether corporate or not (are corporations bad?). I understand that you disagree with silvicultural practices on the Colville.. but this is national legislation.

      PS I don’t know of a national forest that has practices like a real “tree farm”, say, in the SE US.

  6. Two more weird things..

    $50,000,000 to develop and carry out non lethal activities and tactics to reduce human-wildlife
    25 conflicts on National Forest System land;

    ( I agree with the idea, but I’m not sure 50 mill is the right number… wonder how they arrived at that?)

    and of course,

    $350,000,000 for National Forest System
    17 land management planning and monitoring, with a
    18 focus on—
    19 (A) the assessment of watershed, ecological, and carbon conditions on National Forest
    21 System land; and
    22 (B) the revision and amendment of older land management plans that present opportunities to protect, maintain, restore, and monitor ecological integrity, ecological conditions for at risk species, and carbon storage;

  7. This is not “science” at all, of course, unless it is labeled “political science.” Central government management of local resources doesn’t usually work — from my perspective, modern “environmentalism” has too many similarities to historical Lysenkoism to be successful.

    Questions: When did our public forests become “wildlands?” If I recall correctly, “WUI” is an acronym invented in a California University following (concurrent with?) spotted owl “critical habitat” determinations. Is that close? Anyone with better information?

    • Bob.. I don’t know the history of WUI.. I do know when we were working on Colorado Roadless, we had a whole session on different groups’ definitions and mapping. It sounds like an interesting grad student paper.. perhaps it’s already been written?

    • “Wildlands” always seemed like a temporary stop on the way towards a Fantasyland where all lands possible are ‘protected’ from as many human impacts as possible. This often doesn’t include wildfire suppression, and wildfires are welcomed as “natural and beneficial”.

      Another thing I wonder about; In places where wildfires aren’t much of an issue, is there really any function to a WUI designation? Does the WUI land area differ in size, according to site-specific ‘conditions’ (home density and distribution in rural areas)?

  8. I hope this bill is fake news. If not it will end up being huge waste of funds and opportunity. I really think we need to look at our forests as whole. Generally wildfires burn towards urban areas not urban areas into the forest. Limiting where management activities can take place has a tendency to result in poor decisions. Until we learn to control fire across our entire forest landscape we will be just wasting our efforts. These efforts should not just be about UWI. They should be about the health and conservation of our entire forests ecosystems.
    I why such an anti timber industry position in the bill. Who else has the infrastructure to get the work done? Why the concern over harvest diameters? What about large dead trees in UWI interface? It is hypocritical to pretend you care about old growth and large trees when every year millions of them are killed with our current fire fighting procedures.

    • Bob, I don’t understand either. When I look at certain ENGO’s views, the only way I can explain them is a bias that the timber and oil and gas industry are both bad. It’s not rational, as they can also be helpful in timber/treating fuels, oil and gas/decarbonizing, grazers/wildlife habitat.. why hate on them when you can partner with them to achieve your goals?
      And if you don’t trust them, there are methodologies to increase that.. say third-party certification.
      I used to say when things don’t add up, political forces are at work. The good news is that when I looked at ENGO positions for my common ground paper, these were not mainstream positions. All I can think is that certain groups are friendlier with the powerful than others, and it doesn’t happen to be the mainstream this go-round.

      • Well, since some Republicans subscribe to at least one of many conspiracy theories hovering around the Forest Service, Democrats might ‘monkeywrench’ the forestry parts, with difficult wording and unattainable goals. Make it so any left-leaning NGO can intervene and…. win money?

  9. As someone who has been involved in the negotiations surrounding the forestry provisions in both the infrastructure bill and the reconciliation bill, I would observe that folks are subscribing motivation, power, and meaning to actions and legislative language that simply does not exist. Nothing in either bill will make it more likely that ENGOs will be able to litigate (successfully or not), and the infrastructure bill is about funding not policy. Folks also seem to forget that there are members of congress AND THE AGENCY involved here too – not just advocates on both sides of the aisle – and they are inserting their own priorities into both packages.

    The sausage-making is messy and frankly ugly. Do I like everything in these bills? Assuredly no. There’s some dumb policy in here, but also a historic investment in Forest Service capacity. For an agency that has complained for years about inadequate funding for mission-critical work, that excuse disappears if either bill becomes law. Whether or not the agency spends the money in a way that demonstrates they know what they’re doing remains to be seen: there’s very little accountability woven into these bills, so it will be up to the public to decide whether we like what happens next. In other words, be careful what you wish for.

    • “I would observe that folks are subscribing motivation, power, and meaning to actions and legislative language that simply does not exist.”

      I would bet that there are people in NGOs that are looking for loopholes, even before passage. Does anyone else find it odd that, since about half of Congress are lawyers, Senators and Representatives are so very bad at making bills that will stand up to lawsuits?

      This seems more like a “slippery slope” situation, where people continue to assume that the Forest Service would clearcut everything, if they could. With all this money being dangled, I predict that EVERYONE will be disappointed in the results, 3 years from now. Money will go unspent. Lawsuits will be tried, and some may win in Appeals Courts. Meanwhile, firestorms will burn and forest values will be destroyed. It’s a grim future for the Forest Service, especially when you add in the shackles around their wrists and ankles.

      • If they break it down to the Ranger District level, maybe it would be advantageous to have a small number of large service contracts in the WUI, spending whatever high costs it will take to get access to the rest of the money (and land base). Whatever is left in the WUI will be merchantable timber, left in place, to satiate those who oppose all commercial projects. If wildfire still burns through the WUI, the Forest Service can claim that they did the required work, as ordered by Congress.

        If you go back to Clinton’s Sierra Nevada plans, only 10-12 inch diameter trees were able to be cut, in the WUI, from 2000 to 2004. Is that idea still favored by NGOs?

      • “Does anyone else find it odd that, since about half of Congress are lawyers, Senators and Representatives are so very bad at making bills that will stand up to lawsuits?” Interesting perspective. Lawsuits enforce compliance with laws, not reversal of laws. This view reminds me of the longstanding Forest Service trope that it’s impossible to comply with the law because compliance with one always means violating another. A unique view shared by no other federal agency. The FS has always prided itself on being unique.

        • Just look at the wording of these bills, these days. It seems like they don’t know that wording is important to interpretation as law. Laws should not be confusing to implement.

          Litigation is widely blamed by Republicans for all our forests’ problems. Of course, it isn’t true. I tend to think that successful litigation happens to projects known to be risky, but pushed by upper management, anyway. In some cases, litigation doesn’t happen, because the Forest Service is following all their rules. (That still doesn’t mean that an eco-group wouldn’t love to halt it)

      • Hi Larry:

        You state: “Does anyone else find it odd that, since about half of Congress are lawyers, Senators and Representatives are so very bad at making bills that will stand up to lawsuits?”

        This relationship has bothered me for decades. Nothing odd about birds of a feather looking out for one another. Easier to understand than gross incompetence of our elected lawyers.

        Does anyone else find it odd that on December 22, 1969 a group of elected lawyers were passing NEPA in Washington, D.C., while on the same day a group of unelected lawyers were forming the Environmental Law Institute? Add ESA “critical habitat” zoning and the Equal Access to Justice Act said to be focused on urban minority populations, and you have a highly successful racket for lawyers and participating “nonprofits” that has caused massive economic and environmental damage to our rural communities. In my opinion, based on facts.

    • I know members of the agency are “involved,” and yet get clear marching orders from the Admin so they may not be able to give their opinions.. “we can make it work” isn’t an overwhelming endorsement.. kind of sounds like “if you way so.” They could ask retirees though, if they wanted to get an unrestricted and open point of view…

      What is different about this one is that a variety of the “usual suspects” that worked so hard together to come to agreement on the infrastructure bill were left out (and some surprised). And there’s no hurry requiring leaving people out or moving fast to spend that much money.. other than partisan expediency. And in my view, partisan expediency is not a good reason for bad legislation.

  10. I wonder if the author of the section was trying to say you can’t use grant money for commercial projects, and they miswrote it.
    In Colorado, we have rules saying that you must try to find a commercial use for the wood that is being removed for fire protection, in order to reduce the amount of grant needed. Much of our wood from mitigation has no commercial use due to the steepness of slopes, cost of moving it, and rarity of sawmills and biomass plants.

  11. Sharon – “science doesn’t change based on ownership.” No, but goals do.

    Sharon – “So the idea that “you should always do WUI first” may not be correct from the standpoint of protecting communities, keeping firefighters safe, etc.” I don’t see how you get to this conclusion from an article that, “shows that if the management objective is to change wildfire behavior and risk across large landscapes, there is a need for a multi-year restoration strategy.” If the goal is protecting communities, I think most agree that your best bet is to start there.

    I don’t find this language “bizarre” at all; it conveys an intent to prioritize active national forest management through making a specific pool of money available for protecting where people live (rather than restoring ecological integrity (a secondary priority) or making money (not a priority)), and I would guess that lines up pretty well with public opinion right now. The language isn’t perfect, and this thread could be a useful read for those who hold the power of the pen. I would be very surprised if the authors are trying to write a law that will lose cases in court. I don’t agree with AFRC that it’s “unimplementable.”

    I do think there is a question about when the $4 billion becomes available. While national achievement is a nice ideal, does that mean if the $10 billion doesn’t achieve that, the $4 billion is not available at all? It reads to me like the intent was to apply this restriction to a particular WUI, such that work outside that WUI could be pursued when work inside it is done. That could still result in relatively “random acts of restoration,” and I’d like to see this restriction applied at some intermediate scale like Forest Service regions or forests.

    I agree that it is “weird” (as in rare) to aggressively fund forest planning, but it’s about time!

    • There is no good reason why a Forest couldn’t mobilize their staffs and get their entire WUI areas under contract, essentially freeing up that extra money. Depending on the agreed-upon dimensions of the WUI, is it logical to wait for multiple years for the actual work to be completed, before the extra money is made available? (Otherwise, it would seem like a hostage situation)


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