Legislation

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

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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.

The Smokey Wire Volunteer Opportunity! Finding the Forest in Legislation

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There seem to be more bills floating around in Congress about fire and forests and carbon than ever before.  Jon Haber does a terrific job on rounding up litigation; it would be wonderful if someone (or a group) would be willing to do the same for legislation.  It’s definitely more than I can keep up with.  And if it is your day job, being anonymous would be perfectly acceptable. All you would have to do is find the key provisions of interest and post them.. we can discuss the pros and cons, and add relevant info, here.

We can’t count on news stories to go to the detail we’d prefer. Different reporters are interested in different things, and generally don’t provide the comprehensive view related to our interests.. so we are left with “what other people the reporter contacted thought about the bill.” Not quite as useful as the text, IMHO.

Here’s one example from E&E news..(granted the reporter mostly works on climate.. so..) interesting choice of interviewees, Chad Hanson, Tim Ingalsbee (asserting that fuel treatments of various kinds don’t work..) and a researcher from the Midwest.

But it takes more than just keeping the big trees to get fire resilience, said Jessica McCarty, a Miami University professor who studies wildfire. Operating the logging machinery can be a fire risk, and moving such equipment through the forest leaves lasting disturbances.

“If you take out everything but the large trees, you’ve probably disturbed and/or compacted the soil. Then what’s going to grow in the understory? Probably grasses and forbs. And to be quite frank, in North America, that means you have a high likelihood of invasive species,” she said.

It would be a good thing for federal agencies to shift their timber programs toward sustainable, climate adaptive practices, McCarty added. That would mean an end to clear-cutting and better incentives for more selective logging in natural areas.

I was curious about the details of this mentioned in the article..

It also creates a new federal system for subsidizing sawmills and other wood processing facilities, along with $400 million in new financial assistance. “Close proximity” to a sawmill would become a factor for agencies to consider when funding federal land restoration.

So decided to do a search on Forest. One of the first things I ran across was about permitting critical minerals, so I got sidetracked.

(e) FEDERAL PERMITTING AND REVIEW PERFORMANCE REQUIREMENTS—To improve the quality and timeliness of Federal permitting and review processes with respect to critical mineral production on Federal land, the Secretary of the Interior, acting through the Director of the Bureau of Land Management, and the Secretary of Agriculture, acting through the Chief of the Forest Service (referred to in this section as the ‘‘Secretaries’’), to the maximum extent practicable, shall complete the Federal permitting and review processes with maximum efficiency and effectiveness, while supporting vital economic growth, by— …

and it goes on at some length about how to do that.

Interesting, but searching on “forest” through more than 2000 pages is time-consuming. Now I know that there are individuals in Forest Service Legislative Affairs who do this work, but unfortunately we don’t have access to their work the same way we have access to Litigation Weekly. It would be quite a public service if that could be done, IMHO, and good press for the FS.

Anyway, until that day The Smokey Wire could really use one or more helpers in this area. Please consider it.

Forest Service Budget – Chairman of the Senate Interior, Environment and Related Agencies Appropriations Subcommittee.

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Speaking again of the Salmon-Challis National Forest’s alleged predicament, that they have to sell trees to be able to afford fuel treatments, this budget proposal from Oregon Senator Merkley might be part of the solution.

“I’m ready to be in partnership with the U.S. Forest Chief,” Merkley said, describing plans to get the federal agency the resources it needs to improve forest management, reduce catastrophic fires and provide greater protection for parts of towns and cities threatened by wildfire in the urban-rural interface.

In Oregon we have more than 2 million acres and we’ve already gone through the environmental process to be approved to be treated, and yet we don’t have the money to actually do the treatment,” he said.

Merkley said he’s spoken with the Biden Administration about “viewing our national forest as infrastructure,” and wants the president to add forest management commitments in Biden’s infrastructure proposal known as the American Jobs Plan.

He also says that news of the president’s “commitment” to the forest management program could be days away.  (This was May 28; did I miss it?)

I wasn’t aware that the legislation intended to end fire borrowing may have failed:

A “Wildfire Suppression Cap Adjustment” emergency fund that the forest service could dip into during “bad fire years” was enacted in 2018 by the Senate appropriations committee, but the fund conflicts with the 10-year budgets required by the Budget Control Act of 2011.

Merkley also proposes “offering forest management jobs to wildland firefighters.” 

 

 

 

Let’s Discuss the Wildfire Emergency Act 2021. II. Landscape-Scale Restoration.. Same Old NEPA?

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This is probably obtuse and abstruse but here goes- I think it’s an interesting window into the minds of some people who have power in federal lands policy. Again, here are links to the summary and the bill itself.  If you’ll remember, the Daines-Feinstein bill (and all others that tweak current NEPA procedures) tends to provoke this kind of language among many environmental groups.  And this bill is supported by them… so let’s take a look at what it says.  These are the NEPA procedures for the Landscape-Scale Forest Restoration Projects we discussed yesterday, the idea being to work on areas up to 100K acres.

(I) The project shall use an efficient approach to landscape-scale analysis and decisionmaking that is consistent with the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), which may include—

1 (i) the preparation of a single environmental impact statement or environmental assessment, as applicable, for the entire project, incorporating the landscape assessment described in subparagraph (C);

(ii) the use of, as applicable—
(I) multiple records of decision to implement a single environmental impact statement; or multiple decision notices to implement a single environmental assessment;

(iii) the preparation of a programmatic environmental impact statement or environmental assessment, as applicable, for the entire project, incorporating the landscape assessment described in subparagraph (C), followed by focused, concise, and site-specific—
(I) environmental assessments; or
(II) categorical exclusions consistent with the National Environmental Policy Act of 1969 (42 U.S.C. 24 4321 et seq.); or

(iv) the use of the landscape assessment described in subparagraph (C),  through incorporation by reference and similar approaches, to support focused, concise, and site-specific—
(I) environmental assessments; or
(II) categorical exclusions consistent with the National Environmental Policy Act of 1969 (42 U.S.C. 10 4321 et seq.).

 

So I am not a lawyer, but I find this confusing.  If the idea of this bill is to make landscape scale projects more “efficient”, it seems to me that most efficient would be to develop a giant EIS (4FRI analyzed 1 mill acres and authorized 560K, without, as far as I know, supplemental site-specific NEPA).  There are problems with this approach, though; it takes a long time to do and to litigate, and by then many of your carefully analyzed acres may have burned up, perhaps requiring re-analysis.

I think iii raises an interesting question.. what good would it do to do a programmatic if you already have an assessment and you are going to use EAs or CEs for the site-specific analysis? When I worked in DC, I noticed at the interagency NEPA meetings that CEQ seemed fond of programmatics, the agencies not so much. Double the NEPA, double the quality of the decision?

I like iv… going from some kind of assessment to EAs or CEs.  But forests can do this already (even without the kind of assessment envisioned here).  They can use a recent forest plan vegetation assessment if they have one, or other kinds of collaborative work like the Zones of Agreement that the Blue Mountains developed.  So I’d argue that there could be a much simpler kind of assessment with which to support EAs and CE’s, and one that would be easier to update as needed.

So to get the more $ that goes with the Landscape Restoration Projects, you have to focus on returning to reference conditions (not helping suppression folks protect values at risk) and don’t seem to get any NEPA help- in fact you have to do more work (unnecessarily elaborate assessments). I’m not sure why this is part of a “Wildfire Emergency” Act.

 

Let’s Discuss The Wildfire Emergency Act of 2021-I: Landscape Projects

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There are many interesting things we could discuss about this bill… here’s a link to the summary, section by section, and the bill itself.  I’m interested in exploring Zones of Agreement above the collaborative forest organization level, and this legislation offers some clues to the environmental/conservation point of view. There’s plenty to discuss here, but I’ll start with the large landscape provisions (from the section by section):

Subsection (c)(1) establishes eligibility criteria for the a project, including:
o Purposes shall include 1) restoration of ecological integrity; 2) restoration of appropriate natural fire regimes; and 3) wildfire risk reduction in the wildland urban interface (WUI), to
the extent that the project includes lands in the WUI

o A collaborative group representing diverse interests must develop and support the project

2 o The project shall be based on a landscape assessment that
1) covers at least 100,000 acres (with limited exceptions for assessments of at least 50,000 acres for Eastern forests, or at least 80,000 acres if the assessments are already complete or substantially completed and the Secretary determines a larger assessment area is not necessary)
2) evaluates ecological integrity and reference conditions for the landscape;
3) identifies areas that have departed from reference conditions;
4) identifies criteria for determining appropriate restoration treatments;
5) are based on the best available scientific information, including, where applicable, high-resolution imagery and LiDAR; and
6) identifies priority restoration strategies.
o Restoration actions shall 1) emphasize the reintroduction of characteristic fire; 2) for any proposed mechanical treatments, seek to restore reference conditions and the establishment
of conditions facilitating prescribed fire; and 3) fully maintain or contribute to the restoration of reference old forest conditions, including protecting large old trees
o The project shall be consistent with all applicable environmental laws, and the roadless rule
o Multiparty monitoring is required
o No new permanent road may be built as part of the project, and any temporary roads needed to implement the project shall be decommissioned within 3 years of the project’s completion
o The project uses an efficient approach to landscape-scale analysis and decision-making that is consistent with NEPA (we’ll talk about this in post II in greater detail.)

 

I’ve some concerns with this part.

    1. As we’ve seen with the Blue Mountains, the extra funds are great and allow them to do great work. Still, it does tend to separate forests into haves and have-nots. It’s discouraging for busy forest workers and the public to work hard on a proposal and not be funded.  Those places may actually “need” the extra support the most.
    2.  Of course, I’m not a fan of spending megabucks determining “reference conditions” when we have no clue about whether it’s a good investment to try to “restore” them for (which?)  “ecological reasons”.  I still think we should have stuck with managing for individual wildlife species and trying to keep them on the landscape. I know that coarse-filter fine filter is supposed to work better, but has it? It’s always seemed like a full employment program for historic vegetation ecologists to me.
    3. People who want strategic fuel treatments to help suppression folks protect their communities seem to have no place in all this; in fact, it seems very wet (Coastal) in its focus.  It seems like instead of saying.. here is a landscape where threats from wildfires are serious as evidenced by these (x) criteria, we will fund communities and the Forest Service to plan and implement strategic fuel treatments and ongoing prescribed fire, considering factors as in the Stewardship and Fireshed Assessments.

You could have numerous considerations and restrictions proposed by the environmental community, but what’s fundamentally flawed about this section for me is that its’ not about protecting communities, infrastructure, plants, animals and watersheds from destructive wildfires at all, but about restoring to reference conditions with possible wildfire utility.

Not only do I think a Wildfire bill with landscape scale projects should focus on wildfire projects (but perhaps large landscapes are not the appropriate mechanism?), I also think it should have a preference for underserved and low-income communities at risk of disastrous wildfires and their druthers.

I’ve heard this proposal characterized as CFLRP 2.0, so it would be interesting to hear from CFLRP participants on what you all think about this.