Bipartisan Fix Our Forests Act Introduced

I found this on Thomas Hochman’s TwitX feed , and I’m always interested in bipartisan stuff, so went to Rep. Peters (D) press release.

The D’s all look like Californians.

Original cosponsors include Representatives Tony Cardenas (D-CA-29), John Curtis (R-UT-3), Ami Bera (D-CA-6), Pete Stauber (R-MN-8), Jimmy Panetta (D-CA-19), Tom McClintock (R-CA-5), Jim Costa (D-CA-21), Tom Tiffany (R-WI-7), John Duarte (R-CA-13), and James Moylan (R-GU).  

Interesting roundup of folks supporting..

The Fix Our Forests Act is supported by the National Congress of American Indians, Bipartisan Policy Center, the National Association of Counties, the Property and Environment Research Center (PERC), American Forests, the Evangelical Environmental Network, Edison Electric Institute, the Theodore Roosevelt Conservation Partnership, MegaFire Action, the American Conservation Coalition Action, the National Wild Turkey Federation, the American Forest Resource Council, the American Loggers Council, the Arkansas Forestry Association, Associated California Loggers, the Boone and Crockett Club, the Dallas Safari Club, the Forest Landowners Association, the Forest Resources Association, the Hardwood Federation, Potlach Deltic, and Rayonier.

Not the usual suspects on this list include the Bipartisan Policy Center and Megafire Action.

  • Simplify and expedite environmental reviews for forest management projects in the highest risk areas
  • Promote federal, state, tribal and local collaboration on wildfire mitigation while encouraging engagement with landowners and communities
  • Recognize the role that natural fire plays in healthy ecosystems – which is backed by the best available scientific information – while acknowledging Tribal sovereignty in providing for practices like cultural burning
  • Support wildfire resiliency for local communities by focusing on the built environment, innovative technologies and modernized standards
  • Deter frivolous litigation that delay essential forest management projects
  • Create a framework for interagency collaboration to advance wildfire and land management R&D, provide technical and financial assistance to communities, and support efforts by tribes and other governments to address the effects of wildland fire on communities, including property damages, air, and water quality
  • Create a federal-state-tribal framework for prioritizing projects in the forests at highest risk of catastrophic wildfire
  • Encourage the adoption of state-of-the-art science and techniques for federal land managers, including innovative methods to sequester carbon dioxide
  • Ensure that utilities are able to better work with federal partners harden their rights-of-way while mitigating hazards
  • Strengthen tools like Good Neighbor Authority – which presently excludes Tribal Nations – and Stewardship Contracting

The bill may not be going anywhere but we can still discuss the ideas in it.. which might be cannibalized and used elsewhere.  I don’t have time to go through it today but Hochman’s TwitX piqued my interest. Maybe someone has an analysis they would like to share and discuss?

I’d just like to focus on the Fireshed Center for now.. (sorry about the formatting)

7 (1) IN GENERAL.—The Secretary, acting
8 through the Chief of the Forest Service and the Sec9 retary of the Interior, acting through the Director of
10 the U.S. Geological Survey, shall jointly establish a
11 Fireshed Center (hereinafter referred to as the
12 ‘‘Center’’) comprised of at least one career rep13 resentative from each of the following:
14 (A) The Forest Service.
15 (B) The Bureau of Land Management.
16 (C) The National Park Service.
17 (D) The Bureau of Indian Affairs.
18 (E) The U.S. Fish and Wildlife Service.
19 (F) The U.S. Geological Survey.
20 (G) The Department of Defense.
21 (H) The Department of Homeland Secu22 rity.
23 (I) The Department of Energy.
24 (J) The Federal Emergency Management Agency
1 (K) The National Science Foundation.
2 (L) The National Oceanic and Atmospheric Administration.
4 (M) The National Aeronautics and Space
5 Administration.
6 (N) The National Institute of Standards
7 and Technology.
8 (2) DIRECTOR.—The Secretary, acting through
9 the Chief of the Forest Service and the Secretary of
10 the Interior, acting through the Director of the U.S.
11 Geological Survey, shall jointly appoint a Director of
12 the Center, who—
13 (A) shall be an employee of the U.S. Geological Survey or the Forest Service;
15 (B) shall serve an initial term of not more
16 than 7 years; and
17 (C) may serve one additional term of not
18 more than 7 years after the initial term de19 scribed in subparagraph (B).
20 (3) ADDITIONAL REPRESENTATION.—The Sec21 retary, acting through the Chief of the Forest Serv22 ice and the Secretary of the Interior, acting through
23 the Director of the U.S. Geological Survey, may
24 jointly appoint additional representatives of Federal
1 agencies to the Center, as the Secretaries determine
2 necessary.
3 (b) PURPOSES.—The purposes of the Center are to—
4 (1) comprehensively assess and predict fire in
5 the wildland and built environment interface through
6 data aggregation and science-based decision support
7 services;
8 (2) reduce fragmentation and duplication across
9 Federal land management agencies with respect to
10 predictive service and decision support functions re11 lated to wildland fire;
12 (3) promote interorganizational coordination
13 and sharing of data regarding wildland fire decision 14 making;
15 (4) streamline procurement processes and cybersecurity systems related to addressing wildland
17 fire;
18 (5) provide publicly accessible data, models,
19 technologies, assessments, and fire weather forecasts
20 to support short- and long-term planning regarding
21 wildland fire and post-fire recovery; and
22 (6) maintain the Fireshed Registry established
23 under section 103.

No one can be against “interagency coordination” but I can’t help but wonder if some of this will distance the modelers from the people on the ground.  I also note that procurement processes and cybersecurity systems will be streamlined, but why not streamline… hiring?  Maybe some or all of this comes from the Commission Report?  How can the agencies make this more effective than what we have currently and not a cluster? Perhaps this is just the beginning of the discussion that needs to happen.




The latest and greatest NEPA requirements

Image: Scout Environmental

For any NEPA nerds out there, the last few years have seen an unprecedented tug-of-war over the law’s requirements.  In 2020, the Trump Administration put its stamp on the CEQ regulations implementing NEPA, the first substantial editing of its procedural requirements since 1978.  Upon taking office, the Biden Administration began to undo many of the changes.  On October 7, 2021, CEQ finalized the first phase of its changes to the 2020 Regulations, in which the agency made a handful of targeted revisions.  On June 3, 2023, President Biden signed into law the Fiscal Responsibility Act of 2023 (FRA), which made a number of changes in the law itself, summarized here as follows:

  • Codify that environmental impact statements should include discussion of reasonably foreseeable effects of a proposed action, reasonably foreseeable effects that cannot be avoided, and a reasonable range of alternatives to the proposed action. (Sec. 102(2)(C); 42 U.S.C. § 4332(2)(C)).
  • Clarify requirements for determining whether to prepare an environmental document and the appropriate level of NEPA review. (Sec. 106; 42 U.S.C. § 4336).
  • Clarify the roles and responsibilities of lead agencies and cooperating agencies, including designation of such agencies. (Sec. 107(a); 42 U.S.C. § 4336a(a)).
  • Promote development of a single environmental document. (Sec. 107(b); 42 U.S.C. § 4336a(b)).
  • Set page limits and deadlines for environmental impact statements and environmental assessments. (Sec. 107(e) and (g); 42 U.S.C. § 4336a(e) and (g)).
  • Direct agencies to develop procedures for how, under Federal agency supervision, project sponsors may prepare environmental assessments and environmental impact statements. (Sec. 107(f); 42 U.S.C. § 4336a(f)).
  • Provide time lengths and circumstances for when agencies can rely on programmatic environmental documents without additional review. (Sec. 108; 42 U.S.C. § 4336b).
  • Establish a process for Federal agencies to use another agency’s categorical exclusions. (Sec. 109; 42 U.S.C. § 4336c).
  • Require CEQ to conduct a study of online and digital technologies to help provide for efficient reviews and improve public accessibility and transparency. (Sec. 110; 42 U.S.C. § 4336d).
  • Define terms used in NEPA, including cooperating agency, environmental document, lead agency, major Federal action, participating Federal agency, programmatic environmental document, and special expertise. (Sec. 111; 42 U.S.C. § 4336e).

On July 31, 2023, CEQ published proposed Phase 2 Revisions to the agency’s NEPA implementing regulations.   On May 1, 2024, the Council on Environmental Quality (CEQ) published its final Bipartisan Permitting Reform Implementation Rule (Final Rule).  These will be the NEPA requirements for the foreseeable future (that would be until January, 2025 anyway).  The Federal Register Notice with the final regulations may be found here.

Nossaman is providing a series of reviews of various aspects of the changes that have been made.  They provided this initial overview of what they think is noteworthy (their perspective seems usually be that of a private party):

  • Changes in the definition of “major federal action”;
  • Changes to the way federal agencies approach NEPA’s threshold question of whether the effects of a major federal action are “significant”;
  • Codifying environmental justice and climate change as among the effects that must be examined during the NEPA process;
  • Updated requirements relating to public engagement;
  • Codification of CEQ’s 2023 greenhouse gas guidance;
  • Additional flexibility for federal agencies to establish new categorical exclusions;
  • Codification of CEQ’s longstanding practice of relying on mitigated findings of no significant impact (FONSI);
  • Providing clarity on the requirements for mitigation to form the basis of a mitigated FONSI;
  • Removal of language added by the 2020 Regulations that sought to limit the ability of third parties to challenge NEPA determinations; and
  • Adoption of provisions intended to speed the NEPA review process.

The second installment, discussing the first two bullets, is found here (others will follow).  One of the topics it addresses is the criteria for “significance” that would require an EIS.  The new regulation mostly affirms past practices, but it explicitly recognizes a situation that may arise for “restoration” proposals on public lands.  In determining significance:

Agencies may also consider the extent to which an effect is adverse at some points in time and beneficial in others (for example, in assessing the significance of a habitat restoration action’s effect on a species, an agency may consider both any short-term harm to the species during implementation of the action and any benefit to the same species once the action is complete).  However, agencies shall not offset an action’s adverse effects with other beneficial effects to determine significance …

The Preamble warns:

In some circumstances, an effect may be significant due to the harm during one period of time regardless of the benefit at another.  For example, if implementation of a habitat restoration action may extirpate a species from the area, then an agency could not reasonably rely on long-term habitat improvements resulting from the action to determine that the overall effect to the species is not significant.

(I would like to say this is just an extreme example to make the point that if short term effects may be significant, you can’t discount them based on long-term benefits to avoid preparing an EIS.  However, they follow this with a comparison to mitigation, where it IS possible to offset adverse effects with beneficial mitigation to the point that they are no longer significant.)

E&E News Story on the Westerman Bill Hearing : Focus on the 10 AM and Out Idea

Chris French, the Forest Service’s deputy chief, on Capitol Hill on Wednesday. Natural Resources Committee/YouTube via E&E News

The Westerman bill is a compendium of policy ideas from various sources, some of which have been floating around for a long time. I think this E&E News story did a pretty good job of focusing on some of the main themes of the hearing.

I don’t think the 10am idea is going anywhere. I fully respect individuals who disagree, and I hope they move on to more detailed ideas for “being more careful.” If this Xprize or other technological innovations are successful, people will have to choose for every ignition and what will inform that choice? Human safety would seem to be less of a factors with unpersonned aircraft and so perhaps that will change the possibilities and choices of suppression as well.

What can we learn from fire with benefits that worked vs. those that didn’t work? How can we reimburse people who suffer when they don’t work? When wildfires are likely to hit private land, should landowners have a voice? It seems to me that there are many questions to be worked out. Perhaps with forest plan amendments or other pre-planning. Here at TSW we have seen a variety of people with concerns (Sarah Hyden and Michael Rains) and even Jon and I agree on the utility of plan amendments, which is fairly rare. Anyway, I think there’s a conversation around “if not 10 AM and out, how can FWB (fire with benefits) proponents build trust with impacted communities?”; a conversation that would be more complex than “10 AM or not.” Maybe the appropriate Congressional committee (perhaps not this one) can examine why FEMA seems to be uniquely unsuccessful at getting relief to impacted individuals after the Hermits Peak/Calf Canyon escaped prescribed fires, as reported on in detail by The Hotshot Wakeup. I know that fire folks and academics are working on the trust issue.

Meanwhile, there’s a big story from NPR KRCC this morning on wildfire smoke health risks..

New research shows that the health consequences of wildfire smoke exposure stretch well beyond the smoky days themselves, contributing to nearly 16,000 deaths each year across the U.S., according to a National Bureau of Economic Research (NBER) analysis released in April. The analysis warns that number could grow to nearly 30,000 deaths a year by the middle of the century as human-driven climate change increases the likelihood of large, intense, smoke-spewing wildfires in the Western U.S. and beyond.

“This really points to the urgency of the problem,” says Minhao Qiu, a researcher at Stanford University and the lead author. “Based on our results, this should be one of the policy priorities, or the climate policy priority, of the U.S., to figure out how to reduce this number.”

Another analysis, led by researchers from Yale University, finds that the human death toll every year from wildfire smoke could already be near 30,000 people in the U.S. Deaths from cardiovascular disease, respiratory problems, kidney disease, and mental health issues all rise in the days and weeks after smoke exposure.

Together, the studies point to an underappreciated threat to public health, says Yiqun Ma, a researcher at Yale and an author of the second study.

“It’s a call to action,” she says—outlining the real, and significant, human stakes of failing to rein in further human-caused climate change.

Wildfire smoke is bad for people but fire is good for forests. How best to manage the trade-offs? How will climate change and the new technologies above balance out in terms of new future “large intense smoke-spewing wildfires”? How does planned prescribed fire, compared to Wildfire With Benefits fit into that? I don’t know, but I’m fairly certain health researchers don’t know either. Interestingly, it looks like the Wildland Fire Commission did not include folks from CDC?.

Anyway, here’s what Marc Heller reported on this.

Fire suppression debate
Westerman’s draft combines many ideas that haven’t advanced far in Congress, in some cases because Democrats won’t support them, but in others because they haven’t been attached to legislative vehicles that can get through the congressional logjam. The farm bill, for instance, covers the Forest Service but has languished for months on unrelated issues.

The quick extinguishing of wildfires has become a rallying point for some Republican lawmakers but would face hurdles with forest policy groups. It would place the requirement on drought-inflicted areas and on places the Forest Service has designated among the most at-risk landscapes, for instance.

One witness at the hearing, Kimiko Barrett, a member of the Wildland Fire Mitigation and Management Commission, said the 24-hour proposal goes against recommendations the panel made in a report to Congress several months ago.

“Calls to return to a 24-hour suppression policy are antithetical to allowing more beneficial fire, supersede local decisionmaking and are in direct opposition to the commission’s recommendations,” said Barrett, a senior wildfire researcher at Headwaters Economics in Bozeman, Montana.


The chilly response to the fire suppression provision contrasted to more positive views of other aspects of Westerman’s draft, which calls for creation of “firesheds” that would receive expedited thinning and prescribed fire to reduce the threat of wildfire, as well as updates to shared stewardship arrangements that allow the Forest Service to partner with outside groups for forest improvement projects.

Westerman, the only professional forester in Congress, said the draft resulted from years of work and bipartisan cooperation on a number of issues.

A proposal to streamline consultation with the Fish and Wildlife Service on endangered species issues has some Democratic support as well, and the community-based wildfire risk reduction programs and research have broad appeal.

In addition, the proposal would incorporate 10 of the nearly 150 recommendations the federal Wildland Fire Mitigation and Management Commission made to Congress several months ago and adopt other policies that align with the commission’s findings — although it veers from that commission on the scope of fire suppression.

For some reason, Westerman said, forests have become politically divisive even though healthy forests benefit everyone through cleaner air and water, recreational areas and economic rewards of the wood products industry.

“It’s something we should all work toward,” Westerman said, adding that he took a bipartisan delegation to his alma mater, the forestry school at Yale University, last year to see how researchers manage its lands in Connecticut.

“People realize this shouldn’t be a divisive issue,” Westerman said.

French said a number of provisions in the draft that have been proposed in earlier legislation align with Forest Service goals. In the case of expedited environmental reviews for forest projects, he said the agency would want to clarify Westerman’s intent.

But in exchanges with lawmakers, French also acknowledged that tasks such as endangered species consultations, litigation and environmental reviews sometimes add substantial costs to forest management projects.

Like I said, since this bill is a lengthy mix of different ideas, and the folks testifying had many interesting things to say (also in their written testimony), I’ll be posting in depth about some of the testimony and my observations.

From Frivolous Litigation to Western Headquarters Via Many Other Ideas: Westerman’s Bill: What’s In it and What Do You Think?

Subtitle C actually says “addressing frivolous litigation” and Section 121 is titled “Commonsense Litigation Reform”

Here’s the text. We’re going to need help from lawyers out there..

a) IN GENERAL.—A court shall not enjoin a fireshed management project under this Act if the court determines that the plaintiff is unable to demonstrate that the claim 7 of the plaintiff is likely to succeed on the merits.
8 (b) BALANCING SHORT- AND LONG-TERM EFFECTS OF FOREST MANAGEMENT ACTIVITIES IN CONSIDERING INJUNCTIVE RELIEF.—As part of its weighing the equities while considering any request for an injunction that applies to any agency action as part of a fireshed management project under this Act, the court reviewing the agency action shall balance the impact to the ecosystem likely 15 affected by the fireshed management project of—
16 (1) the short- and long-term effects of under taking the agency action; against 18 (2) the short- and long-term effects of not undertaking the action.
21 (1) IN GENERAL.—Subject to paragraph (2), the length of any preliminary injunctive relief and stays pending appeal that applies to any agency action as part of a fireshed management project under this Act shall not exceed 30 days.

1 (2) RENEWAL.—
2 (A) IN GENERAL.—A court of competent  jurisdiction may issue one or more renewals of any preliminary injunction, or stay pending appeal, granted under paragraph (1).
6 (B) UPDATES.—In each renewal of an injunction in an action, the parties to the action shall present the court with updated information on the status of the fireshed management project.
11 (d) LIMITATIONS ON CLAIMS.—Notwithstanding any other provision of law, a claim arising under Federal law seeking judicial review of a fireshed management project  shall be barred unless—  such claim is filed not later than 120 days after the date of publication of a notice in the Federal Register of agency intent to carry out the proposed agency action;

This sounds like a time limit for filing.

19 (2) such claim is filed after the issuance of a record of decision or other final agency action with respect to the relevant proposed agency action; and

How could it be filed before the ROD is issued?

22 (3) such claim does not challenge the use of a categorical exclusion under this section.

I’m kind of lost in the negatives here. “a claim shall be barred unless it does not challenge the use of a CE? So claims about CE-hood would be barred? Under “this” what (?) section.

Section 122 sounds like the Cottonwood fix but maybe not.


This is always one of my favorites. People learn a lot from pilots. This one has a ceiling, no more than 15 projects per year per FS Region or BLM States. You could lower the numbers, but is anyone really against it? Apparently the results would not be subjected to judicial review, except “as 16 provided in section 10(a) of title 9, United States Code.” Maybe someone knows what that is.


Then there’s a section on WUI. My friends who are involved in community wildfire programs tell me that this would be very useful

create a single, uniform application and portal for local communities seeking to apply for Federal financial assistance or 23 technical assistance programs targeted at reducing fire risk to communities

Also these:

SIMPLIFICATIONS.—In creating the portal under paragraph (1), the Secretaries and the Ad1ministrator shall seek to reduce the complexity and length of the application process.
18 (3) TECHNICAL ASSISTANCE.—The Secretary of the Interior shall provide technical assistance to communities looking to apply for financial assistance under the streamlined application and portal created under paragraph (1).

Of course, Congress can’t do that, but a really wild and crazy idea would be for States to try to simplify  procedures for funding as well and maybe try to harmonize with the feds..

Then there’s section 202 which seems to be about controlling management of fires for resource benefits. That’s probably worth its own post, if anyone wants to take a look.

A Community Wildfire Defense Research Program (expanding JFSP to include):

(1) different affordable building materials, including mass timber;
5 (2) home hardening;
6 (3) subdivision design and other land use planning and design;
8 (4) landscape architecture; and
9 (5) other wildfire-resistant designs for structures or communities, as determined by the Secretary.

And a Community Wildfire Defense Innovation Prize

A new CE for power line operation and maintenance:

“the development and approval of a vegetation management, facility inspection, and operation and maintenance plan submitted under section 512(c)(1) of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1772(c)(1)) by the Secretary concerned; and 11 (2) the implementation of routine activities conducted under the plan referred to in paragraph (1).

Plus a change to FLPMA from 10 to 50 feet of a power line for hazard trees.

Seeds of Success

I imagine Defense is included here as federal lands include Forest Service, some Interior agencies and DOD. The point seems to be enhance the domestic supply chain of native seeds, in a manner coordinated across agencies. It seems like it’s about native plants perhaps not including trees, as it appears to be BLM focused. I’d put them (trees and other natives) together somehow and get them coordinated.

Biochar Demonstration Projects and Biochar Competitive Grants. (more on this later)

Accurate Hazardous Fuels Reduction Reports

This approach sounds plausible to me, certainly it needs clarification and consistency. Many other groups, of various persuasions, have pointed out the problems with the current approach.

Public Private Wildfire Technology Deployment and Testbed Partnership
This seems like a mechanism for coordination among agencies to ensure real-world testing of new technologies. Hopefully, this will ensure that less USG funding is spent on random “sounds plausible” technologies, and gets them to field testing. Note that it includes say, thinning as a hazardous fuels reduction, so all our friends interested in mechanizing and improving marking and harvesting would be included.

(A) hazardous fuels reduction treatments or activities;
5 (B) dispatch communications;
6 (C) remote sensing, detection, and tracking;
8 (D) safety equipment; and
9 (E) common operating pictures or operational dashboards; and
11 (3) partner with each covered entity selected to participate in the Pilot Program with the appropriate covered agency to coordinate real-time and  on-the-ground testing of technology during wildland  fire mitigation activities and training.

GAO Study on Forest Service Policies

(A) the effectiveness of Forest Service wildland firefighting operations;
(B) transparency and accountability measures in the Forest Service’s budget and accounting process; and
(D) the suitability and feasibility of establishing a new Federal agency with the responsibility of responding and suppressing wildland 2 fires on Federal lands;

What happened to C? Also I’d have two studies, one that looked at the Interagency wildland firefighting and the idea of a new Federal Agency (why just FS?) and a separate one for FS budget transparency and accountability.

Forest Service Western Headquarters Study

It’s not clear to me whether this is to substitute for Regions or to add another layer of bureaucracy. Perhaps it will be clear in FS testimony tomorrow.

Summary: there are lots of interesting ideas in this bill.  It will be interesting to see the FS testimony.  What do you think?

Westerman’s Bill: What’s In it and What Do You Think? Up to Subtitle C

I’m working off the discussion draft here.

The idea is to designate firesheds.

are identified as being in the top 20 percent of firesheds for wildfire expo6 sure based on the following criteria:
Wildfire exposure to communities, including risk to structures and life.
Wildfire exposure to municipal watersheds.
Risk of forest conversion due to wildfire.
shall not overlap with any other fireshed management areas;
may contain Federal and non Federal land; and where the Secretary concerned shall carry out fireshed management 20 projects.

I am not a fan of the “risk of forest conversion” criterion..seems to me (given my background in refo practices) that where there are trees, with appropriate practices you can get trees back. Plus with lots of bucks at stake, this could lead to a great deal of..err.. creativity

Agencies Get Their Stuff Together
The Bill would establish a Center where agencies would coordinate efforts. Which ones?
The Forest Service.

8 (B) The Bureau of Land Management.
9 (C) The National Park Service.
10 (D) The Bureau of Indian Affairs.
11 (E) The U.S. Fish and Wildlife Service.
12 (F) The U.S. Geological Survey.
13 (G) The Department of Defense.
14 (H) The Department of Homeland Security.
16 (I) The Department of Energy.
17 (J) The Federal Emergency Management Agency.
19 (K) National Science Foundation.
20 (L) The National Oceanic and Atmospheric Administration.
22 (M) The National Aeronautics and Space Administration.
24 (N) The National Institute of Standards and Technology.

What Would the Center Do?

The purposes of the Center are to—
13 (1) comprehensively assess and predict fire in 14 the wildland and built environment interface through 15 data aggregation and science-based decision support services;
17 (2) reduce fragmentation and duplication across Federal land management agencies with respect to predictive service and decision support functions related to wildland fire;

I’d strike “land management”’s likely that NASA NOAA NSF and DOE are all feeding at the prediction and decision support modeling research funding trough.

21 (3) promote interorganizational coordination
22 and sharing of data regarding wildland fire decision making;

1 (4) streamline procurement processes and cybersecurity systems related to addressing wildland fire;

Not sure what problem that is intended to address but it sounds interesting…

4 (5) provide publicly accessible data, models, technologies, assessments, and fire weather forecasts 6 to support short- and long-term planning regarding wildland fire and post-fire recovery; and 8 (6) maintain the Fireshed Registry created 9 under section 103.

I’d add open (including practitioner) peer review of models, technologies and assessments, including involvement of practitioners in modeling, technology development and assessment.

Fireshed Registry Data (interactive spatial)

(a) FIRESHED REGISTRY.—The Secretary of Agri17 culture, acting through the Director of the Fireshed Cen18 ter appointed under section 102, shall maintain a Fireshed 19 Registry on a publicly accessible website that provides 20 interactive geospatial data on individual firesheds, including information on—
22 (1) wildfire exposure delineated by ownership,23 including rights-of-way for utilities and other public 24 or private purposes;
1 (2) any hazardous fuels reduction treatments 2 that have occurred within an individual fireshed in 3 the past 10 years;
4 (3) wildfire exposure delineated by—
5 (A) wildfire exposure to communities, including risk to structures and life;
7 (B) wildfire exposure to municipal watersheds; and
9 (C) risk of forest conversion due to wild10 fire;
11 (4) the percentage of the fireshed that has 12 burned in wildfires in the past 10 years, including, 13 to the extent practicable, delineations of acres that 14 have burned at a high severity;
15 (5) spatial patterns of wildfire exposure, including plausible extreme fire events; and
17 (6) any hazardous fuels reduction treatments 18 planned for the fireshed, including fireshed management projects under section 106 of this Act

This almost sounds like an assessment for a fire plan amendment..whoops.. Section 105 is.. Fireshed Assessments.

Then there’s a Peoples’ Permitting Database

(1) publish fireshed assessments created under 5 section 105; and
6 (2) maintain a searchable database to track—7 (A) the status of Federal environmental reviews, permits, and authorizations for specific fireshed management projects conducted under
10 section 106, including—
11 (i) a comprehensive permitting timetable;
13 (ii) the status of the compliance of each lead agency, cooperating agency, and participating agency with the permitting timetable;
17 (iii) any modifications of the permitting timetable required under clause (i), in1cluding an explanation as to why the permitting timetable was modified; and
21 (iv) information about project-related public meetings, public hearings, and public comment periods, which shall be presented in English and the predominant
25 language of the community or communities most affected by the project, as that information becomes available;
3 (B) the projected cost of fireshed management projects; and
5 (C) the effectiveness of completed fireshed management projects in reducing the wildfire exposure within an applicable fireshed, including—
9 (i) wildfire exposure to communities, including risk to structures and life;
11 (ii) wildfire exposure to municipal watersheds; and
13 (iii) risk of forest conversion due to wildfire.

Now, the NEPA part is confusing to a new reader.
If a project is identified through the Assessment and falls into these (pretty broad) categories..

2) FIRESHED MANAGEMENT PROJECTS.—The 4 responsible official shall carry out the following for5 est management activities as fireshed management projects under this section:
7 (A) Conducting hazardous fuels manage8 ment, including mechanical thinning, prescribed 9 burning, cultural burning, timber harvest, masication, and grazing.
11 (B) Creating fuel breaks and fire breaks.
12 (C) Removing hazard trees, dead trees, dying trees, or trees at risk of dying, as determined by the responsible official.
15 (D) Developing, approving, or conducting routine maintenance under a vegetation management, facility inspection, and operation and
18 maintenance plan submitted under section 19 512(c)(1) of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1772(c)(1)).
21 (E) Removing trees to address overstocking or crowding in a forest stand, consistent with the appropriate basal area of the forest stand as determined by the responsible 25 official.
1 (F) Using chemical treatments to address insects and disease and control vegetation competition or invasive species.
4 (G) Any activities recommended by the state-specific fireshed assessment carried out under section 105.
7 (H) Any activities recommended by an applicable community wildfire protection plan.
9 (I) Any combination of activities described 10 in this paragraph.

Our lawyer friends probably know the CFRs under emergency fireshed management on page 21. Section B on page 22 talks about using existing CE authorities under HFRA, the Lake Tahoe CE, and the IIJA CE’s. It also seems to replace the Emergency Situation Determination described in IIJA with projects identified in the assessment. The practical result seems to be no objection process and this clause:

A court shall not enjoin an authorized emergency action under this section if the court determines that the plaintiff is unable to demonstrate that the claim of the plaintiff is likely to succeed on the merits.

The bill also adds Indian Tribes to getting funding from Good Neighbor Authority projects (I thought this had been done a while back, but I guess not).

Intra Agency Strike Teams. I read about this and they sounded like inter-agency strike teams, to facilitate coordination so I was confused.

This is getting long so I will start another post..Subtitle C- Addressing Frivolous Litigation is the next topic.

Hearing Tomorrow on Westerman’s Bill: E&E News Story

Thanks to a TSW reader for this.


E&E DAILY | The House Natural Resources Committee will focus this week on a Republican bill to more quickly thin forests deemed in danger of wildfire.

Rep. Bruce Westerman, the chair of the committee, has proposed draft legislation to create federal “firesheds,” or areas the Forest Service has determined are at the highest risk of fire, and to expedite projects to remove overgrowth and dead or dying trees. The Subcommittee on Federal Lands, chaired by Rep. Tom Tiffany (R-Wis.), is scheduled to take testimony on it.

The draft bill calls for categorical exclusions from the National Environmental Policy Act to designate emergency firesheds every five years, beginning with areas already highlighted in the Biden administration’s 10-year wildfire strategy. More areas would be listed every five years, with projects not subject to environmental assessments or environmental impact statements.

We’ll discuss this in greater detail in the next post.

The draft also would provide for such exclusions along electric power rights of way, responding to the danger of fires started by downed power lines.

Now if we go back to Senator Tester’s questions last week about how a 100 foot tall tree fell on a power line.. and the Forest Service only let the Coop cut trees 10 feet on each side (if that is true, did not hear the FS side of the story) despite the Coop’s asking to do it, then there might be something useful there.  Also, in the Region 2 public meeting about Environmental Analysis and Decision-making, the power company folks offered that power line maintenance would be best served by a power line-wide decision, not District by District.  I wonder whether the Forest Service and the country might be better off with a national plan amendment for power lines rather than Old Growth.

Westerman, a trained forester, is one of Congress’ most outspoken proponents of a more intensive approach to managing forests, many of which have grown thicker with vegetation due to past polices of fire exclusion.

I hope I’m not being overly sensitive about natural resource professionals here, but he’s a Yale-educated forester.  Sounds better than “trained.” Also has experience in practice as a forester and engineer.

From Wikipedia:

He graduated with a Bachelor of Science in engineering in 1990 and subsequently received a master’s degree in forestry from Yale University.[2]

Westerman worked as an engineer and forester before being elected to the Arkansas House in 2010. He was formerly employed as an engineer and forester by the Mid-South Engineering Company.

Back to the story.

Projects to remove trees — dead or alive — on fire-prone federal lands sometimes face years-long delays through NEPA reviews and litigation, both of which Westerman has tried to tamp down through legislation.

On the other side are environmental groups and advocates who say forests are better off, and more resilient, with less removal of trees for timber harvest and other purposes.

Dominick DellaSala, chief scientist at Wild Heritage, a Berkeley, California, environmental group, charged Westerman with “gutting the nation’s bedrock environmental laws as we approach Earth Day,” which is April 22.

Mature forests and large, old trees, on national forests store from 35 percent to 70 percent more carbon than logged areas, contain clean drinking water, support imperiled wildlife and are a guard against wildfire, DellaSala said. “They need to be taken off Westerman’s legislative cutting board.”

Here we go again.. thinning doesn’t help trees survive in dry areas.  As if there was one practice known as “logging” ..

Westerman’s proposal addresses other forest priorities as well, including promoting biochar — partially combusted wood that acts as a soil conditioner — produced from forest thinnings.

The draft bill would also promote re-seeding of native or fire-resistant grasses in burned-over areas, particularly in the wildland-urban interface.

And the proposal would tweak Forest Service provisions for long-term contracting with outside organizations for forest management, including by requiring the government to pay 10 percent of the contract cost as a termination fee, if the government ends such a contract early.

This bill is interesting so we’ll check it out in the next post.


House of Representatives v. BLM – monuments and the public lands rule

Grand Staircase – “” (Larry C. Price)

Dismissal of a lawsuit against President Biden’s proclamation restoring the boundaries of the Grand Staircase and Bears Ears national monuments allows the NEPA process to develop a management plan for these areas to proceed unhindered.  Biden ordered the BLM to work on replacing the Trump Administration’s resource management plan, and the BLM published its draft RMP on August 11 for public comment.

BLM may proceed unhindered, that is unless Congress decides to hinder them.  The FY2024 Interior, Environment, and Related Agencies Bill the House Appropriations Committee passed in July, which the full House of Representatives is expected to vote on in September, includes a rider that would require the BLM to manage the Grand Staircase NM in accordance with the plan finalized after Trump reduced the monument.

Which is the better planning process – RMPs based on public involvement through NEPA or RMPs based on appropriations riders?

The bill would also deny funding to implement the BLM’s public lands rule (a popular topic with many posts here from Sharon).  Another bill would force BLM to withdraw the rule (without considering all those public comments).

Kya Marienfeld, wild lands attorney for SUWA, called the Utah congressional delegation’s lack of support for the state’s public lands disappointing but adds that opposition is offset by more enlightened members of Congress who actively support the Grand Staircase and other public lands.

Appropriation riders seem to be kind of crap-shoot in the turmoil of budget negotiations, so I have no idea what the betting line would be on President Biden signing off on this one.  The “more enlightened members of Congress” may have more of an influence on defeating the withdrawal proposal.  Is that a bad thing?



Cottonwood: Some Observations from the March 23, 2023 Hearing and a PERC Post

I am not a fan of watching Congressional Hearings because there are many people quite full of themselves with various axes to grind, who waste our time blathering on about unrelated things or giving political speeches about why the other party is bad.   It would be more fun if the videos had a chat function and we could throw virtual flags on things  like “unnecessary pontificating” and “completely off the topic of this hearing”.  Of course, both sides do it. Congresswoman Kamlager-Dove, from LA (my native district) was filling in for Joe Neguse (from Boulder, Colorado) as the ranking member. She’s in her first term. On the House Natural Resources Committee. From LA. If I were Joe, I would ask Congressfolk with skin in the national forest game or some knowledge thereof to fill in for him at a hearing like this.. but that’s just me.

Anyway, I watched this one in March and picked out some interesting wonkish parts for you.

It’s fun to watch Representative Kamlager-Dove (with a unique pronunciation of “salmon”)  grill (so to speak) Chris French on Cottonwood. Starts at 1:50:32.  It did make me wonder whether short timeframes (11 days) in the Sierra for reconsultation might have to do with pressure from important Congressfolk in California?  Anyway, Rep. Kamlager-Dove cuts Chris off before he has time to explain his views.

Chris also says that at a recent Regional Forester meeting, Cottonwood was thought to be a #1 problem, and also something like “every little thing that diverts natural resource biologists and others holds up implementation of wildfire risk reduction projects.”

At about 2:05:56 Susan Jane makes some statements about Plans making final decisions “binding decisions in plan level documents.” “Off-road vehicle use is authorized in forest plan with no further authorization.” 2:06:21. I thought OHV use was authorized in “travel management” decisions, which tend to be separate from forest plans. For example, the PSICC has a travel management decision we’ve discussed previously, but its forest plan is from 1984.. after doing the travel management plan would they have to reconsult on the forest plan? How is winter travel different from summer travel?  If there are final decisions made in plans, wouldn’t it be better to strip plans of final decisions so you wouldn’t have to reconsult on them all the time?  Oil and gas leasing availability decisions, travel management decisions, and so on seem to do just fine outside the forest planning process.  It seems like they’re done when they’re needed (or forced to via litigation) not on some plan revision timeline which may put a given forest 10 or more years out.


Here’s a blog post from PERC that summarizes some of Cottonwood:

This week, multiple forest management bills passed out of committee in the U.S. House and Senate with bipartisan support. One of the bills passed by both chambers offers a permanent fix to a controversial Ninth Circuit Court ruling known as Cottonwood. This tiny provision carries huge implications for conservation, impacting the speed at which the Forest Service can mitigate the wildfire crisis and restore healthy forests.

What is Cottonwood

The ruling requires the Forest Service to halt forest restoration projects throughout a forest whenever a new species is listed, critical habitat is designated, or other new information is discovered about a species in that forest. The projects can’t proceed until the Service consults with the Fish and Wildlife Service over whether to change its overarching forest plans, a slow and expensive process.

Pausing projects to protect vulnerable species may sound reasonable, but the reality is that this is a duplicative and distracting process. The Service already analyzes this new information before proceeding with specific projects, ensuring that no harm can come to species. The additional plan-level analysis is a duplicative bureaucratic obstacle.

And the pause itself is no small matter.

Consider the case of the Bozeman Municipal Watershed Project in PERC’s headquarters in Bozeman, Montana. The project was intended to create critical fire breaks and insulate Bozeman’s watershed from wildfire risk, but the urgently needed restoration work was delayed by 18 years. Once one suit filed under the Cottonwood precedent was resolved, another would be put forth, creating delay after delay and leaving Bozeman’s drinking water vulnerable to a wildfire.

Such examples explain why the Obama administration said the Cottonwood ruling would “cripple” the Forest Service.

How can this hurdle be addressed?

A temporary legislative fix was put in place in 2018, but it expired in March 2023. With Cottonwood left unchecked, Forest Service Deputy Chief Chris French estimates projects could grind to a halt in 87 forest plans across the West. According to French, completing duplicative analysis for all of these forest plans would take “somewhere between 5 and 10 years and tens of millions of dollars.” With an 80-million-acre forest restoration backlog, that’s time and money the Forest Service does not have.

That’s why this bipartisan congressional action is so welcome. It’s past time Congress establishes a permanent fix for Cottonwood.

“Wildfires move fast, and they don’t wait around for bureaucracy that’s slow,” notes PERC CEO Brian Yablonski. “The bipartisan Cottonwood fix will foster more resilient forests, nurture healthy wildlife habitat, and play a critical role in tackling the wildfire crisis. With larger, hotter wildfires fueled by a backlog of forest restoration projects, it’s critical we remove needless and redundant obstacles to this urgent conservation work.”

PERC stands with other conservationists in thanking Sen. Steve Daines (R-MT) and Chairman Joe Manchin (D-WV) in the Senate and Chairman Bruce Westerman (R-AR) and Rep. Matt Rosendale (R-MT) in the House for their leadership in protecting our forests.

What happens next? 

Now that the bills have committee approval, they move forward for votes by the entire House of Representatives and Senate, after which they go to the President for his signature.

PERC will continue to support this bipartisan effort and move us farther down the path to fixing America’s forests.


The FS testimony for the above hearing includes the fact that the two circuits disagree.  Since I live in 10th circuit territory, I thought that that was worth mentioning.

The pair of Ninth Circuit court decisions, commonly referred to as Pacific Rivers Council (PRC) and Cottonwood, which held that a new ESA listing of a species or critical habitat designation required the Forest Service to reinitiate consultation on approved land management plans because either the plan was an “ongoing action” (PRC) or because the agency retains discretion to authorize sitespecific projects governed by the land management plan (LMP) (Cottonwood), have no basis in the ESA or its implementing regulations. LMPs provide general management direction for an entire national forest or grassland. This direction is then integrated into projects, which normally requires a second decision and ESA consultation to dictate what ontheground actions can be taken. A Tenth Circuit decision (commonly known as Forsgren) reached a different conclusion than the Ninth Circuit’s conclusions in Cottonwood, and instead held that the Forest Service did not need to reinitiate consultation on an approved plan with the Services because LMPs are neither ongoing nor selfexecuting actions for purposes of the ESA.

I don’t know why we would assume that the 9th Circuit is right and the 10th Circuit is wrong. In case you’re curious,there are many National Forests outside the 9th Circuit.


TGIF TSW Random News Roundup

F to WaPo on State Farm in California Story: A to  E&E News

WaPo is not the only one, but their “analysis” (?) tells us it’s all about climate change.  But no mention of California’s unusual legal requirements, and no skepticism about the insurance companies potentially using climate to pad their estimates.    Best coverage so far goes to E&E News, and special kudos to them for making that article public.

Pielke, Jr. on Hurricanes

In the WaPo article, they pivoted to hurricanes.  Which reminds me that Roger Pielke, Jr. had a Substack piece on hurricanes this week that rounded up some current information. There are National Forests that are affected by hurricanes, so it is part of TSW country.

Still No Articles on “Feds are already allowing proponents to fund NEPA”

I have seen many more articles on the Debt Ceiling NEPA changes, but none so far that address this.  If you have read one, please link in the comments.  Curious minds need to know..are all other agencies able to do this? What’s their track record.

Write Legislation  in Haste, Litigate at Leisure

Speaking of the Debt Ceiling NEPA, I asked Dan Farber of UC Berkeley Law, about some of Center for Biological Diversity’s claims.  Many thanks to him for answering my qeustions!  He wrote a post exploring some of the text (NEPA ites will find the entire post interesting)  it and concluded:

In addition, given the rest of the garbled language, it’s not clear whether dropping the word “potential” was just another glitch, or was done to make the definition more concise, or was really intended to change the meaning. It’s equally unhelpful to compare the rule to the current, post-Trump version, which is much simpler, does drop potential, but also revamped the rule in other ways different from the new bill.

I suppose the bill might be amended somewhere along the way to fix the problem. But given the lack of time, and the dangers of opening up the bill to changes, I’m not sure whether that’s at all feasible. A later “technical corrections” bill would also be possible, but I think Democrats would oppose any effort to redraft the section in a way that limited the application of NEPA, while Republicans might oppose any fix that restored the current status quo as a back step,

In the absence of a quick legislative fix. I predict lots of fun litigation. Maybe the upshot will be to ignore the definition entirely and only give effect to the exclusions. In the meantime, however, all that litigation is only going to increase delays, which is ironic given that the whole purpose the NEPA changes is supposed to be speeding up the process.

A final thought: I stumbled into this drafting disaster by chance. How many similar glitches are lurking in the bill?  The moral may turn out to be: “Draft in haste. Repent at leisure.”

Red line Analysis of Debt Ceiling NEPA by Bipartisan Policy Center.

Thanks to Xan Fishman..”We don’t need legislative doomerism any more than we need climate doomerism.”

Here’s a link to a red line analysis and it also points to BPC and One Federal Decision recommendations.

 Legislators (or Their Staff) Who Cry Wolf

There’s a reason The Boy Who Cried Wolf is such a longstanding and popular story. Aesop lived between 620 and 564 BC and the story is still popular today. Question: is there any change to  NEPA or to its implementing regulations that according to Grijalva’s office, does not “gut environmental laws”?  How would we know what a real “gutting” would look like, if everything is “gutting?”  What other adjectives might be left on the table for future use? Here’s their “fact sheet”. It’s interesting to contract with the Bipartisan Policy Center and Dan Farber’s analyses.

No Wolves for You, Colorado

Perhaps this has been resolved, but there is a complex story behind Colorado’s initiative based wolf reintroduction program. It wasn’t supported by CPW wildlife managers, but thrust upon them.  Then the state legislature and the Governor got involved in the 10j question. This article in Colorado Politics by Marianne Goodland was over my head about the 10j stuff so good for her, unless Jon and other experts think she missed something.

Context: wolves have been migrating down from Wyoming anyway.  So why reintroduce? Many of us asked the same question, but it was on a ballot initiative.

Back to reintroduction. Below is from an article in by Kristen Schmitt.

The draft wolf reintroduction plan includes sourcing wolves from IdahoWyoming and Montana; however, that’s where it gets a bit tricky. In fact, language within the plan states that “[s]pecific agreements regarding donor populations have been discussed with these three states but final agreements have not yet been concluded.”

But that doesn’t seem to be true.

“We have not been and are not in conversations about moving wolves to another state. To be clear, we have not talked and are not talking to Colorado about moving wolves,” said Greg Lemon, a spokesperson for Montana Fish, Wildlife and Parks.

Idaho noted that “the states have not had any formal conversations” and Wyoming Gov. Mark Gordon is against Colorado’s reintroduction effort, which means that they don’t plan on relocating any wolves to the Centennial State. Period.

“Our current wolf management plan is working, and it works because it is designed to manage wolves in biologically and socially suitable habitats and to keep wolves out of areas of the state where conflicts would be highest,” said Gordon. “Our border with Colorado is an unsuitable area for wolves, and that would mean more human conflicts. Resolution of conflicts are almost always deadly to wolves.”

Oregon and Washington are suggested as possible alternatives though no formal discussions have occurred, according to Channel 9 News. The same goes for Utah.

“There are currently no established wolf packs in Utah, which would likely not make us a viable candidate for providing wolves,” said a Utah Division of Wildlife Resources spokesperson.


Feel free to add your own “news of the week” in the comments.

Tuesday’s House Resources Committee Hearing on Various Wildfire and Other Bills

A kind TSW reader sent me a Marc Heller story from E&E News. Here’s a link to the hearing on last Tuesday, May 23, 2023.

Troy Heithecker is a Forest Service Deputy Chief who testified in a hearing Tuesday. I didn’t much like the headline “GOP call for total fire suppression” since the bill says, according to the article:

A bill from Rep. Tom McClintock (R-Calif.) — H.R. 934 — would require the agency to put out every reported fire within 24 hours in forests in drought conditions, at high risk of wildfire or when the National Interagency Fire Center has set the highest level for national preparedness.

That doesn’t seem total to me. Not that I support the bill either, FWIW. Hopefully if the fire had a high chance of getting away due to conditions, or there were few resources available, the FS would do that without legislation. Of course it’s hard to predict the future. I’d see this as signalling to “be more careful, especially in my District.”

I know why the FS says this.. but people want to hear “we’ll be more careful” not “because you experienced it, it’s really not a problem because look at the national percentages. Tell that to the New Mexicans about prescribed fire.

But Heithecker said the agency already puts out as many as 98 percent of the wildfires reported within 24 hours. He estimates that perhaps 1 percent are monitored or allowed to burn for resource benefit, such as allowing naturally occurring fire to thin forests that have evolved with it for centuries.

Anyway, enough about wildfire.. what about NEPA?

McClintock proposed another bill, H.R. 188, to extend the use of 10,000-acre categorical exclusions from the National Environmental Policy Act that have been in place in the Sierra Nevada since the Obama administration.
The Forest Service supports much of that proposal, Heithecker said, while looking to work on the details.
While categorical exclusions from NEPA often draw criticism from environmental groups, Heithecker defended them as “just another category of NEPA” that allows the Forest Service to move faster on projects that don’t pose a significant environmental risk.
As many as 85 percent of the NEPA-related decisions the Forest Service makes are done through categorical exclusions, he said, and many of the decisions involve tracts of land bigger than 10,000 acres.
“Having tools to help us do that work at scale faster is a benefit to us,” he said.
Even with the expedited reviews, Heithecker said, projects “have to comply with all of those environmental laws.”

I think it’s unclear that re-upping outfitter-guide special use permits, or permitting bike races, with a CE, should be in the same “85% of decisions” box as vegetation treatments. When people testify about fuel treatments, why not use the CE numbers for.. fuel treatments? I am still interested in the CEs currently available and how often they are used for fuel projects compared to EAs and EISs, and the relative amounts of acreage involved. Chelsea Pennick looked at that in Idaho, as I recall, when she studied collaboration but what do we know about the Sierra? Because, as we have seen, people on the Tahoe are successfully using EAs for 2K acre projects. Maybe CEs are not the answer, after all Lake Tahoe has its own CE. It would be interesting to talk to NEPA practitioners in the Sierra about this. Any of you out there, please email me.

If any folks have other observations on the hearing, please comment.