Note: Bob Zybach and I posted these at almost the identical time yesterday, so I changed the time on this to today, so it would be more visible to folks. Also since then, Tom Erb of Senator Hick’s office posted on X that FOFA is an “abundance bill.” If you’re not familiar with the Abundance idea promoted in this book according to Wikipedia it’s generally about “better managing the trade-offs between regulations and social advancement.” It’s always interesting to see what larger movements have to contribute (or not) to forest policy, so if someone would like to read and review the Klein and Thompson book for TSW, that would be great!
When I first ran into Matt Weiner of Megafire Action, I wondered “who are these people?”, “why are they in our space?” and “why is he talking about wildfire and I am moderating the panel?”. I felt challenged to gracefully accept new people interested in our policy arena, and not be suspicious. They are big fans of the Wildfire Center, and I have some reservations about it. Nevertheless, this group, working with others, has been successful at moving FOFA along- likely in a way that the traditional groups would not have been, so “by their fruits” and all that.
Folks I have spoken with in the past have had trouble getting through to various D staffs about this bill because to some any changes affecting litigation possibilities are a non-starter. Thanks to a dedicated effort by many groups, FOFA has arrived as a bipartisan bill to the Senate. People have been asking me about changes between the House and Senate Bills, and it looks like this is a nice summary by Megafire Action. So many thanks to them, both for helping shepherd the bill through and providing this handy section by section analysis. Changes are noted in red in the document.
As an elderly wonk, FOFA reminds me a great deal of HFRA (pick certain areas and change the generic rules for projects for fuel treatments) and so I would have liked a more formal review of “why HFRA didn’t work” before starting FOFA, but that’s just me. Here’s the FS summary of HFRA (2003):
Healthy Forests Restoration Act
The Healthy Forests Restoration Act of 2003 (P.L. 108-148) contains a variety of provisions to expedite hazardous-fuel reduction and forest-restoration projects on specific types of Federal land that are at risk of wildland fire or insect and disease epidemics. The act helps rural communities, States, Tribes, and landowners restore healthy forest and rangeland conditions on State, Tribal, and private lands. It also:
- Encourages biomass removal from public and private lands
- Provides technical, educational, and financial assistance to improve water quality and address watershed issues on non-Federal lands
- Authorizes large-scale silvicultural research
- Authorizes acquisition of Healthy Forest Reserves on private land to promote recovery of threatened and endangered species, and improve biodiversity and carbon sequestration
- Directs the establishment of monitoring and early warning systems for insect or disease outbreaks
Title I provides authorities for expedited vegetation treatments on certain types of NFS and BLM lands that are at risk of wildland fire; have experienced wind throw, blowdown, or ice-storm damage; are currently experiencing disease or insect epidemics; or are at imminent risk of such epidemics because of conditions on adjacent land. This title:
Provides expedited environmental analysis of HFRA projects
Provides administrative review before decisions are issued on proposed HFRA projects on NFS lands
Contains requirements governing the maintenance and restoration of old-growth forest stands when the USDA Forest Service and DOI BLM carry out HFRA projects in such stands
Requires HFRA projects on NFS and BLM land to maximize retention of larger trees in areas other than old-growth stands, consistent with the objective of restoring fire-resilient stands and protecting at-risk communities and Federal lands
Requires collaboration between Federal agencies and local communities, particularly when Community Wildfire Protection Plans are prepared
Requires using at least 50 percent of the dollars allocated to HFRA projects to protect communities at risk of wildland fire
Requires performance to be monitored when agencies conduct hazardous-fuel reduction projects and encourages multiparty monitoring that includes communities and other diverse stakeholders (including interested citizens and Tribes)
Encourages courts to expedite judicial review of legal challenges to HFRA projects
Directs courts that consider a request for an injunction on an HFRA-authorized project to balance the short- and long-term environmental effects of undertaking the project against the effects of taking no action
So it’s been 22 years and here we are with FOFA.
I am REALLY glad that Megafire Action did this analysis, as it’s very difficult for many of us to follow “remove section Xof HFRA and replace it with…”
Here’s the litigation section (remember Rich J. explained this to us in greater detail in a previous comment).
The Senate version updates standards for judicial review of fireshed management projects and limits injunctions to defined conditions. It codifies the existing balancing test for injunctions and removes the “proximate and substantial environmental harm” threshold included in the House version. It introduces separate four-part tests for preliminary and permanent injunctions and establishes clear criteria for when courts may vacate agency actions—explicitly considering wildfire risk and ecosystem health. It also extends the statute of limitations from 120 to 150 days, removes the requirement that plaintiffs must have participated in the agency comment process, and requires agencies to act on court remands within 180 days. In all, this represents a balanced compromise between preserving process and preventing obstruction of badly needed projects.
I wonder about “removes the requirement that plaintiffs must have participated in the agency comment process.” I thought that was already a thing somewhere. It seems like if folks had concerns about a project they would want to participate so the agency would have a chance to do what they wanted. Maybe this has to do with increased use of CE’s, and maybe some groups would miss scoping? Would like to hear more about the rationale for this.
Here’s the NEPA xection: FYI Kelly Martin is on the Board of Megafire Action.
Under FOFA, forest management projects receiving up to a 10,000 acre CE must first be identified by a fireshed assessment. FOFA mandates that fireshed assessments comply with
applicable forest plans which are developed with community input, incorporate the best available science and traditional ecological knowledge from Indian Tribes, and allow for local government participation in their formulation. These added guardrails ensure that CEs will not be used for projects that harm our forests.
While sensitivities around changes to NEPA are justified, it is important to note that FOFA does not amend, alter, or rollback NEPA or the Endangered Species Act (ESA). Agencies must still adhere to all rules and regulations governing the use of categorical exclusions and CEs must only be used in appropriate areas and not used in areas where work is prohibited. It is also important to note that while the original draft eliminated acreage limitations for the utilization of categorical exclusions, the current version sets the acreage limitation to 10,000 acres. FOFA would not enable agencies to “stack” CEs any more than they are able to under the current 3,000 acre limitation.To further understand the practitioner perspective on categorical exclusions, Megafire Action interviewed Kelly Martin, Ret. Chief of Fire and Aviation at Yosemite National Park, and Type 1 Incident Management Team member in Operations and Fire Behavior, who provided important insights on CEs:
“Categorical exclusions (CE) are a key tool for forest resilience and wildfire mitigation. Currently, there is an over-allocation of funding and human capital dedicated to
planning and revising existing NEPA Environmental Impact Statement (EIS) or Environmental Assessment (EA) documents sometimes 5 to 10 years in the making.
This favors what seems like endless and duplicative planning efforts compared to implementing beneficial actions on the ground that we know are based on solid science and research. CEs help us streamline the public review process and start putting meaningful projects on the ground faster to meet existential wildfire threats. Unfortunately, projects done under the current 3,000 acre CEs fall woefully short of what is needed to meet the ever increasing size of contemporary wildfires. Smaller CEs often don’t provide the buffer or resiliency needed to change conditions on the ground at a meaningful scale. In contrast, the value of a 10,000 acre CE is that you’re not just looking at small sections, you’re starting to look at the entire landscape and how it can withstand future challenges to watersheds, biodiversity, and key ecosystem services we deeply care about.A common mindset around CEs is that they represent a rollback of environmental protections, but CEs are really about accelerating the implementation process for projects that have already been vetted and approved in existing land management plans backed by an EIS or EA. CEs are nothing new, they’ve been an important part of public engagement and meaningful land management actions for years. The CE reduces planning and analysis tiered to existing EISs and EAs and reduces the need for a redundant round of review for each specific project. This is not about returning to clear cut logging, going into sensitive areas, or removing mature growth old timber. We’re talking about targeting areas that are accessible, where intervention can make a meaningful difference to landscape resilience. While forestry in the past, particularly in the early 1900s, often led to negative outcomes, those earlier mistakes should not cloud the judgment of today’s forest management strategies, which are vastly more informed by modern science. We’re not going back to those days.”
The Senate version keeps the core of this provision while making a few tweaks to ensure that the CEs apply to fireshed management areas that are properly selected with the best science, and adds some new guardrails on the use of emergency authorities. The Senate version adds riparian and wet meadow restoration and more detailed descriptions of the types of treatments intended, to further signal that clearcutting is not a desired management activity.”
The Megafire Analysis is comprehensive, so if you find any other topics of interest, please feel free to comment. I just selected these because I heard that these were sticking points to some offices.
Hello,
I must bring attention to the fact that in some situations – most notably on steeper forest slopes greater than 35% where ground-based equipment cannot effectively operate without causing excessive disturbance to forest soils – there are no more desirable, or feasible alternative courses of action to clearcutting. In particular, let me point out that where only shade intolerant species thrive and forest debris must be removed to properly prepare sites for successful forest regeneration, broadcast burning is the only reasonable economic forest practice alternative. Here, as long as land masses are stable and not prone to landslide, such operations pose little or no environmental risk. However, in conducting such operations, intentionally retained live vegetation unfortunately cannot be protected.
This being the case, I’m concerned about the closing statement saying “The Senate version adds… to further signal that clearcutting is not a desired management activity.”
~ To forest health,
Dwayne E Johnson
Retired, USFS Certified Silviculturist
Definitionally, I’m not sure that burning retained vegetation as part of broadcast burning would be any more “clearcutting” than burning retained vegetation during a prescribed underburn would be. Clearcutting to some extent is in the eye of the beholder.
In the Douglas Fir Region clearcutting is almost required in order to get good reforestation. Douglas fir needs full sun in order to grow and survive. If people won’t do it, nature will with a crown fire, windstorm, or volcanic eruption. Then the next even-aged generation can become established. As you say, on steep slopes there are few alternatives, and even on nearly flat or sloping ground the cost and damage to the leave trees has rarely been commercially successful with this species.
Second point is that I have not been impressed with “the best science” as determined by the government in recent decades — often that is little more than peer-reviewed modeling, rather than actual field science in my experience, whether describing 100-year buffers, critical habitat, or even growth and yield.
Sharon – – Why HFRA didn’t work
The main reason that HFRA’s innovations (e.g. comment period at any time before decision, agency bios preparing biological consultation under Section 7) is that leadership in EMC and at the time WFARPS (wildlife, fish, air, rare plants, soils) did not embrace it, nor the fact that disclosure documentation was with a CE or a No Action/Proposed Action EA. Line officers did not embrace it either because Directors of EMC and WFARPS did not advocate for it.
I distinctly remember as a district ranger I had better section 7 consultation outcomes from the US Fish and Wildlife Service’s Ecological Service office than I did from my regional office.
A regional cadre of NEPA nerds presented the HFRA NEPA training on my district. I asked the question about moveable comment period for the No Action/Proposed Action EA of HFRA and how the RO would support such a an option. I was told that I was a district ranger and that I could do anything I wanted, but when my decision came to the RO I would not be supported because the comment period was before the completed EA.
In a decision notice and FONSI I used the HFRA “balance of harms”. The RO NEPA nerd told me that that paragraph of the DN/FONSI was the most jarring thing she had ever read. Go figure?
Your question about prior participation to have standing to sue – this is exhaustion of administrative remedies, summarized here: “Darby v. Cisneros, 509 U.S. 137 (1993), holds that, under the Administrative Procedure Act, 5 U.S.C. 704, a person aggrieved by an agency action can seek judicial review of the action without exhausting an available administrative appeal, unless the agency’s regulations provide both (1) that the administrative appeal must be taken, and (2) that during the pendency of the administrative appeal the agency action shall be inoperative.” https://www.justice.gov/archives/jm/civil-resource-manual-34-exhaustion-administrative-remedies. And this provides for administrative review, so does it just explicitly waive the exhaustion requirement (and why)?
I’m wary of anyone who says we should have less public involvement because, “This favors what seems like endless and duplicative planning efforts compared to implementing beneficial actions on the ground that WE KNOW are based on solid science and research” (emphasis added).
And someone who doesn’t understand the relationship between forest plans and projects: “CEs are really about accelerating the implementation process for projects that have already been vetted and approved in existing land management plans backed by an EIS or EA.” There’s a lot wrong with this sentence.