Forest Legislation Hearing: CE for Prescribed Fire, and Arbitration Pilot

This take is from the AFRC newsletter..thanks to Nick Smith for putting in the links to all the info, so you can decide on your own interpretation.

Forestry legislation gets hearing in the Senate. On October 21, the Senate Energy and Natural Resources Committee held a legislative hearing to consider nine forest-related bills, including legislation from Senator Steve Daines (R-MT) to address the Cottonwood litigation hook (S. 2561) and authorize a pilot for binding arbitration judicial reform for collaborative forest management projects (S. 2564). Also on the agenda were Senator Jim Risch’s (R-ID) FIRESHEDS Act (S. 2436) to streamline projects within emergency fireshed management acres, Senator Ron Wyden’s (D-OR) legislation to streamline and mandate greater use of prescribed fire (S. 1734), and legislation from Senators Joe Manchin and John Barrasso (R-WY) to promote reforestation activities and the carbon sequestration benefits of active forest management (S. 2836).  Manchin chairs the Committee and Barrasso serves as the Ranking Member.


The Administration was represented at the hearing by U.S. Forest Service Deputy Chief Chris French and Jeffrey Rupert, Director of the U.S. Department of the Interior’s Office of Wildland Fire. Non-federal witnesses included Bill Crapser, Wyoming State Forester, Paul Johnson of the West Virginia Division of Natural Resources, and Tyson Bertone-Riggs of the Rural Voices for Conservation Coalition.  A recording of the hearing and witness testimony are available online.


Deputy Chief French noted that forests “are burning at scales and scopes that we’ve not seen before, that are having tragic and unacceptable effects to our communities, our interagency firefighting resources, and the long-term sustainability of our nation’s forests.” French voiced appreciation for the Committee’s efforts and noted that the various bills all seek to address “different aspects” of the challenges facing the Forest Service’s efforts to increase forest management activities and indicated that the agency would like to work with the Committee to improve the proposals.


Jeffrey Rupert pointed to climate change as the cause of the worsening wildfire seasons and signaled Interior’s opposition towards proposals to streamline environmental reviews, including Senator Risch’s FIRESHEDS Act. Tyson Bertone-Riggs championed prescribed fire legislation from Senator Ron Wyden and legislation from Senator Diane Feinstein that focused largely on thinning and other fuels reduction activities near at-risk communities.  Senator Wyden claimed that his bill, which would mandate greater use of prescribed fire by the Forest Service and loosen Clean Air Act restriction on prescribed fire smoke, will “give us the chance to do some of the heavy lifting in the cooler weather, and in the process avoid these infernos we see in the summer.”

Here’s the NEPA in Wyden S1734, a CE for Prescribed burns that would be developed by the agencies..

Here’s what the FS testimony said about that:

To better meet the intent of  Section 204(b), USDA would like to work with the Committee and bill sponsor to more closely  align the requirements of this subsection with the guidance provided by the Council on Environmental Quality for the development of National Environmental Protection Act Categorical Exclusions.

This made me curious as to why this bill would ask the USDA and Interior to write CEs instead of just legislating them.  As a person who worked on some and supervised people that worked on them, I’d recommend just legislating them. It’s not rocket science.. it’s acre limits and other kinds of limits, that could easily be worked out in legislation. They just have to get out the notices in two years, and there’s an election coming as always.  Plus the last time I remember DOI and USDA doing a CE it was lost in litigation, even though the process was probably better than others that did not lose. So you’re rolling the dice.


I’m pretty interested in the arbitration pilot (I don’t think the legislative and executive branches do enough pilots). So here is what the FS written testimony was:

S. 2564 would require the Secretary of Agriculture to establish an arbitration pilot program through rulemaking within two years of the bill’s enactment. The bill limits the types of projects the Secretary can designate for arbitration to those developed within a specified collaborative process, carried out under the Collaborative Forest Landscape Restoration Program, or that are part of a community wildfire protection plan. The bill also requires that projects designated for arbitration must be located in whole or in part in the Wildland Urban Interface and must have, as a purpose, reducing hazardous fuels or mitigating insect and disease infestation.

In keeping within the scope of a pilot program, this bill would be carried out only in the States of Idaho, Montana, and Wyoming, and would authorize two projects per year to be designated for arbitration. This program would be in effect for five years.

USDA is open to future discussions with the bill sponsor and Committee staff regarding the proposal for an arbitration pilot program.

I don’t know if that is testimony language for “no way in heck” but it’s still of interest. It would be awkward to tell Congress “we’re not open to discussions.”

There is quite a bit of interesting info in the FS testimony about the bills.. feel free to bring up any others and we can discuss below.

3 thoughts on “Forest Legislation Hearing: CE for Prescribed Fire, and Arbitration Pilot”

  1. I can provide some insight as to why Senator Wyden might have done the right thing and require the agency to promulgate the CE rather than legislate it.

    First, it is up to Congress to set priorities, and then turn to the so-called “expert” agency to figure out how to implement those priorities. The agency does that through rulemaking. (At least that’s my view of how the world *should* work: I know that’s not the world we live in.)

    Second, using the APA rulemaking process is far more inclusive of the public than legislative action. Through the rulemaking process, the public often brings to the agency’s attention things of which Congress is unaware. And don’t we all support more transparency and inclusion in federal forest management? 🙂

    Third, Congress doesn’t always get it right when it *does* get into the weeds of forest management: there are a couple of examples of legislated CEs (e.g. Farm Bill CEs) or other provisions (e.g. first Cottonwood fix) where Congress thought it was doing the right thing, but didn’t have enough/the right information when it legislated, which ended up causing a lot more trouble on the back-end.

    • Yes, Susan, but couldn’t those arguments be also made against the below quotes from the Recon Bill? I recognize that there is a gradient between setting priorities and getting in the weeds.

      1) The below clauses seem pretty proscriptive, but don’t require rulemaking.
      2) Including the public is a good thing… but the below bill doesn’t (nor do Wilderness bills, nor Monumenting).
      3) We’re in complete agreement on that one, and you could say the below is kind of “weedy” (not as weedy as it once was, though).. what is the problem with Farm Bill CEs? All the projects I’ve seen with them seem OK..

      ” $10,000,000,000 for hazardous fuels reduction projects on National Forest System land within the wildland-urban interface;
      4 (2) $4,000,000,000 for, on a determination
      5 made solely by the Secretary that hazardous fuels
      6 reduction projects within the wildland-urban inter face described in paragraph (1) have been planned
      8 to protect, to the extent practicable, at-risk communities, hazardous fuels reduction projects on National Forest System land outside the wildland11 urban interface that are—
      12 (A) primarily noncommercial in nature,
      13 provided that, in accordance with the best available science, the harvest of merchantable materials shall be ecologically appropriate for restoration and to enhance ecological health and
      17 function, and any sale of merchantable materials under this paragraph shall be limited to
      19 small diameter trees or biomass that are a by product of hazardous fuel reduction projects;
      21 (B) collaboratively developed; and
      22 (C) carried out in a manner that enhances the ecological integrity and achieves the restoration of a forest ecosystem; maximizes the retention of old-growth and large trees, as
      appropriate for the forest type; and prioritizes prescribed fire as the primary means to achieve modified wildland fire behavior; ”

      I think it’s a terrific idea to discuss the risks and rewards of legislated CEs.. they may get it “wrong” but what are the specific risks of each one? The risks of a rule-making is lots more work for the agency, plus litigation. And sometimes, the decision is strongly affected by views of groups tight with the current Admin. Say in this case, the same folks who are tight with the current D folks in Congress. So for all the public comment, there can be some good ideas, but at the end of the day, the result are likely to be heavily influenced by the same groups. Is the effort worth it? Depends, I guess.

      I get why the rulemaking exercise would be valuable for something really complicated like NEPA regs or an NFMA rule, but not for something as simple as a CE. Six groups in Wyden’s office for two hours would do it. The Senator could even host a public discussion for ideas, say open for two weeks. Making sure that different parts of the country get to review it. There’s the related issue of “many people already use Category 6 for prescribed fire” so there’s a great deal of experience already to call on, it’s not exactly unexplored territory.

    • Fourth, Congress sometimes just likes to punt. Especially because the more specific you get, the more it becomes clear who wins and who loses (and the lobbying probably gets more intense). And especially now, when it seems like Congress can’t agree on anything.


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