Legislation

Permitting, NEPA and Litigation Tweaks in the Infrastructure Bill

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I didn’t see any others in the bill other than the four below that relate to forest and federal lands activities. However, that’s not to say that this list is complete.

 

Sec 40806 CE for Fuel Breaks

Establishes a Categorical Exclusion for fuel breaks up to 1,000 feet in width, not more than 3,000 acres of treatments and located primarily in — the wildland-urban interface or a public drinking water source area; if located outside the wildland-urban interface or a public drinking water source area, an area within Condition Class 2 or 3 in Fire Regime Group I, II, or III that contains very high wildfire hazard potential; or an insect or disease area designated by the Secretary concerned as of the date of enactment of this Act.

As we’ve discussed, as a veteran of developing administrative Categorical Exclusions (and seeing them lost in court cases for reasons that seemed a bit random to me), I’m a fan of legislated ones. I didn’t find the definition of “public drinking water source area” in the bill, but perhaps it’s an EPA term?

Sec  40807 Emergency Actions

Establishes  a new statutory tool (separate from and in addition to the agency’s administrative emergency situation determination process) that authorizes the Secretary to determine that an emergency situation exists on National Forest System lands and allows treatment to be carried out pursuant to the Secretary’s emergency situation determination.  If the Secretary determines that an authorized emergency action requires an environmental assessment or an environmental impact statement the Secretary shall study, develop, and describe only—(A) the proposed agency action; and (B) the alternative of no action.  Requires the opportunity for public comment during the preparation of both environmental assessments and environmental impact statements for authorized emergency actions. Actions under this section are not subject to the objection process and 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.

I haven’t really understood the ins and outs of ESD’s in the first place, so I don’t know how this “new statutory tool” would relate, perhaps someone else can explain?  It seems like it would streamline any required EA or EIS by requiring only one alternative and no objections.   I also don’t know about the test for enjoining and how different that is from current practice.

Here are some more infrastructure-y tweaks:

Transportation Projects.  Sec 11311. Efficient Implementation of NEPA for Federal Land Management Projects.

Allows Federal land management agencies to adopt environmental review documents prepared by the Federal Highway Administration (FHA) for certain transportation projects if the document addresses all areas of analysis required by the land management agency. Allows Federal land management agencies to use environmental documents previously prepared by FHA for projects addressing the same or substantially the same action. Under certain circumstances, allows Federal land management agencies to use Categorical Exclusions established by the FHA.

Critical Minerals .

Requires BLM and Forest Service to complete the Federal permitting and review processes with maximum efficiency and effectiveness while supporting economic growth. Requires DOI and USDA to provide a report that identifies measures that would increase the timeliness of permitting activities for the exploration of domestic critical minerals (among other requirements). After submission of the report, DOI  and USDA are required to develop and publish a performance metric for evaluating progress to expedite permitting for exploration.

(this doesn’t itself tweak NEPA practices, but could potentially lead to some recommended tweaks in the future; similar to the Wildfire Commission.)

 

Infrastructure Bill Forestry Provisions Summary: And Some Miscellaneous Goodies in 40804(b)

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NAFSR (FS retirees organization) was kind enough to generate and post this summary of the Infrastructure Bill (passed, not to be confused with the Recon bill we have discussed earlier). So many items of interest to discuss!  Let’s look at one big chunk of $ here, lots of diverse goodies we might not expect to find:

40804(b) the portion designated for the FS is directed to be spent as follows:
• (1) $150 million for FS to enter into landscape-scale contracts, including stewardship contracts, to
restore ecological health on federal land (over 10,000 acres per contract) and $100 million to DOI to
establish a Working Capital Fund that may be accessed by both DOI and USDA to fund requirements
of landscape-scale contracts, including cancellation and termination costs, consistent with section
604(h) of HFRA and periodic payments over the span of the contract period
• (2) $160 million for FS to provide funds to States and Tribes for implementing restoration projects on
federal land through the Good Neighbor Authority
• (3) $400 million for USDA to provide financial assistance to facilities that purchase and process
byproducts from ecosystem restoration projects, based on a ranking of the need to remove the
vegetation and whether the presence of a new or existing wood product facility would substantially
reduce the cost of removing the material. Also encourages the spending of other federal funds based
on the ranking criteria for removal of vegetation and presence of a wood processing facility or forest
worker is seeking to conduct restoration treatment work on or in close proximity to the unit.
• (5) $50 million for FS to award grants to States and Tribes to establish rental programs for portable
skidder bridges to minimize stream bed disturbance on non-Federal land and Federal land.
• (6) $100 million for FS to detect, prevent, and eradicate invasive species at points of entry and grants
for eradication of invasive species on non-federal land and on federal land
• (7) $100 million (split between DOI and FS) shall be made available to restore, prepare, or adapt
recreation sites on Federal land, including Indian forest land or rangeland with (as described in
40804(e)):
o $35 million shall be made available to FS to restore, prepare, or adapt recreation sites on Federal
land, including Indian forest land or rangeland, that have experienced or may likely experience
visitation and use beyond the carrying capacity of the sites.
o $20 million shall be made available to FS for the operation, repair, reconstruction, and
construction of public use recreation cabins on National Forest System land; and the repair or
reconstruction of historic buildings that are to be outleased under section 306121 of title 54,
United States Code. Of the 20 million, $5 million shall be made available to the Secretary of
Agriculture for associated salaries and expenses in carrying out that subparagraph.
o A project shall not be eligible for funding under this subsection if funding for the project would
be used for deferred maintenance, as defined by Federal Accounting Standards Advisory Board;
and the DOI or USDA has identified the project for funding from the National Parks and Public
Land Legacy Restoration Fund.
• (8) $100 million to FS to restore native vegetation and mitigate environmental hazards on federal and
non-federal previously mined land.
• (9) $130 million for FS to establish and implement a national revegetation effort on Federal and nonFederal land.
• (10) $80 million to FS establish a collaborative-based, landscape scale restoration program to restore
water quality or fish passage on Federal land, in coordination with DOI. Section 8004(f) includes
language establishing this competitive program for five-year proposals of not more than $5 million
each. Gives priority to a project proposal that would result in the most miles of streams restored for
the lowest amount of Federal funding.

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Lots of goodies here for everyone… I thought the $400 mill for financial assistance to groups that “purchase and process byproducts” was interesting; so far that has seemed like a place where financial nudges could help restoration efforts along.

Tomorrow.. the NEPA-related provisions.

Big Bucks for the Forest Service (and Interior) in the Infrastructure Bill Passed Friday: I Wildfire Risk Reduction.

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Somewhere someone has analyzed this bill.. would appreciate links, because I’m sure I am missing a great deal. Or if you notice something interesting I missed, please put in in comments. Bill Gabbert of Wildfire Today has done a nice summary here and gives attention to the wildland firefighter changes.  There’s a lot in this bill about the Forest Service, so this is the first of possibly many posts. Here’s a link to the bill.

Note that usually the USDA gets half the total bucks for each effort. Which makes me wonder whether the Departments will get together to implement some of these efforts, and which ones.

USDA

$50 mill is for preplanning (specifically including PODs) but also training in other areas. with $250 mill for implementing PODs.

$250 mill for prescribed fires.

$100 mill for collaboratives plus five years of funding of old CFLRPs plus some new CFLRPs.

$400 mill for

(i) conducting mechanical thinning and timber harvesting
in an ecologically appropriate manner that
maximizes the retention of large trees, as appropriate
for the forest type, to the extent that the trees promote
fire-resilient stands; or
(ii) precommercial thinning in young growth stands
for wildlife habitat benefits to provide subsistence
resources; and

$100 mill for locally- based organizations’ laborers to modify remove and use flammable vegetation.

$100 mill for post-fire restoration in first three years.

$20 mill for Joint Fire Science Program (research).

I  note that in 180 days the FS needs to publish an updated communities at risk map. This bill uses the HFRA definition of WUI.

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SEC. 40803. WILDFIRE RISK REDUCTION.
(a) AUTHORIZATION OF APPROPRIATIONS.—There is authorized
to be appropriated to the Secretary of the Interior and the Secretary
of Agriculture, acting through the Chief of the Forest Service,
for the activities described in subsection (c), $3,369,200,000 for
the period of fiscal years 2022 through 2026.
(b) TREATMENT.—Of the Federal land or Indian forest land
or rangeland that has been identified as having a very high wildfire
hazard potential, the Secretary of the Interior and the Secretary
of Agriculture, acting through the Chief of the Forest Service,
shall, by not later than September 30, 2027, conduct restoration
treatments and improve the Fire Regime Condition Class of
10,000,000 acres that are located in—
(1) the wildland-urban interface; or
(2) a public drinking water source area.

(c) ACTIVITIES.—Of the amounts made available under subsection
(a) for the period of fiscal years 2022 through 2026—
(1) $20,000,000 shall be made available for entering into
an agreement with the Administrator of the National Oceanic
and Atmospheric Administration to establish and operate a
program that makes use of the Geostationary Operational
Environmental Satellite Program to rapidly detect and report
wildfire starts in all areas in which the Secretary of the Interior
or the Secretary of Agriculture has financial responsibility for
wildland fire protection and prevention, of which—
(A) $10,000,000 shall be made available to the Secretary
of the Interior; and
(B) $10,000,000 shall be made available to the Secretary
of Agriculture;

(2) $600,000,000 shall be made available for the salaries
and expenses of Federal wildland firefighters in accordance
with subsection (d), of which—
(A) $120,000,000 shall be made available to the Secretary
of the Interior; and
(B) $480,000,000 shall be made available to the Secretary
of Agriculture;
(3) $10,000,000 shall be made available to the Secretary
of the Interior to acquire technology and infrastructure for
each Type I and Type II incident management team to maintain
interoperability with respect to the radio frequencies used by
any responding agency;
(4) $30,000,000 shall be made available to the Secretary
of Agriculture to provide financial assistance to States, Indian
Tribes, and units of local government to establish and operate
Reverse-911 telecommunication systems;
(5) $50,000,000 shall be made available to the Secretary
of the Interior to establish and implement a pilot program
to provide to local governments financial assistance for the
acquisition of slip-on tanker units to establish fleets of vehicles
that can be quickly converted to be operated as fire engines;
(6) $1,200,000 shall be made available to the Secretary
of Agriculture, in coordination with the Secretary of the
Interior, to develop and publish, not later than 180 days after
the date of enactment of this Act, and every 5 years thereafter,
a map depicting at-risk communities (as defined in section
101 of the Healthy Forests Restoration Act of 2003 (16 U.S.C.
6511)), including Tribal at-risk communities;
(7) $100,000,000 shall be made available to the Secretary
of the Interior and the Secretary of Agriculture—
(A) for—
(i) preplanning fire response workshops that
develop—
(I) potential operational delineations; and
(II) select potential control locations; and
(ii) workforce training for staff, non-Federal firefighters,
and Native village fire crews for—
(I) wildland firefighting; and
(II) increasing the pace and scale of vegetation
treatments, including training on how to prepare
and implement large landscape treatments; and
(B) of which—
(i) $50,000,000 shall be made available to the Secretary
of the Interior; and
(ii) $50,000,000 shall be made available to the
Secretary of Agriculture;
(8) $20,000,000 shall be made available to the Secretary
of Agriculture to enter into an agreement with a Southwest
Ecological Restoration Institute established under the Southwest
Forest Health and Wildfire Prevention Act of 2004 (16
U.S.C. 6701 et seq.)—
(A) to compile and display existing data, including
geographic data, for hazardous fuel reduction or wildfire
prevention treatments undertaken by the Secretary of the
Interior or the Secretary of Agriculture, including treatments
undertaken with funding provided under this title;

(B) to compile and display existing data, including
geographic data, for large wildfires, as defined by the
National Wildfire Coordinating Group, that occur in the
United States;
(C) to facilitate coordination and use of existing and
future interagency fuel treatment data, including
geographic data, for the purposes of—
(i) assessing and planning cross-boundary fuel
treatments; and
(ii) monitoring the effects of treatments on wildfire
outcomes and ecosystem restoration services, using the
data compiled under subparagraphs (A) and (B);
(D) to publish a report every 5 years showing the
extent to which treatments described in subparagraph (A)
and previous wildfires affect the boundaries of wildfires,
categorized by—
(i) Federal land management agency;
(ii) region of the United States; and
(iii) treatment type; and
(E) to carry out other related activities of a Southwest
Ecological Restoration Institute, as authorized by the
Southwest Forest Health and Wildfire Prevention Act of
2004 (16 U.S.C. 6701 et seq.);
(9) $20,000,000 shall be available for activities conducted
under the Joint Fire Science Program, of which—
(A) $10,000,000 shall be made available to the Secretary
of the Interior; and
(B) $10,000,000 shall be made available to the Secretary
of Agriculture;
(10) $100,000,000 shall be made available to the Secretary
of Agriculture for collaboration and collaboration-based activities,
including facilitation, certification of collaboratives, and
planning and implementing projects under the Collaborative
Forest Landscape Restoration Program established under section
4003 of the Omnibus Public Land Management Act of
2009 (16 U.S.C. 7303) in accordance with subsection (e);
(11) $500,000,000 shall be made available to the Secretary
of the Interior and the Secretary of Agriculture—
(A) for—
(i) conducting mechanical thinning and timber harvesting
in an ecologically appropriate manner that
maximizes the retention of large trees, as appropriate
for the forest type, to the extent that the trees promote
fire-resilient stands; or
(ii) precommercial thinning in young growth stands
for wildlife habitat benefits to provide subsistence
resources; and
(B) of which—
(i) $100,000,000 shall be made available to the
Secretary of the Interior; and
(ii) $400,000,000 shall be made available to the
Secretary of Agriculture;
(12) $500,000,000 shall be made available to the Secretary
of Agriculture, in cooperation with States, to award community
wildfire defense grants to at-risk communities in accordance
with subsection (f);

(13) $500,000,000 shall be made available for planning
and conducting prescribed fires and related activities, of
which—
(A) $250,000,000 shall be made available to the Secretary
of the Interior; and
(B) $250,000,000 shall be made available to the Secretary
of Agriculture;
(14) $500,000,000 shall be made available for developing
or improving potential control locations, in accordance with
paragraph (7)(A)(i)(II), including installing fuelbreaks
(including fuelbreaks studied under subsection (i)), with a focus
on shaded fuelbreaks when ecologically appropriate, of which—
(A) $250,000,000 shall be made available to the Secretary
of the Interior; and
(B) $250,000,000 shall be made available to the Secretary
of Agriculture;
(15) $200,000,000 shall be made available for contracting
or employing crews of laborers to modify and remove flammable
vegetation on Federal land and for using materials from treatments,
to the extent practicable, to produce biochar and other
innovative wood products, including through the use of existing
locally based organizations that engage young adults, Native
youth, and veterans in service projects, such as youth and
conservation corps, of which—
(A) $100,000,000 shall be made available to the Secretary
of the Interior; and
(B) $100,000,000 shall be made available to the Secretary
of Agriculture;
(16) $200,000,000 shall be made available for post-fire restoration
activities that are implemented not later than 3 years
after the date that a wildland fire is contained, of which—
(A) $100,000,000 shall be made available to the Secretary
of the Interior; and
(B) $100,000,000 shall be made available to the Secretary
of Agriculture;
(17) $8,000,000 shall be made available to the Secretary
of Agriculture—
(A) to provide feedstock to firewood banks; and

(B) to provide financial assistance for the operation
of firewood banks; an

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Sec. 40801 Legacy Roads and Trails

When I was doing the review of environmental groups’ views, this is one of the rare programs that everyone from AFRC to WEG supported.  Lots of specifics I’m not posting. We’ve been discussing transportation planning and I thought that this was an interesting take:

‘‘(d) IMPLEMENTATION.—In implementing the Program, the Secretary
shall ensure that—
‘‘(1) the system of roads and trails on the applicable unit
of the National Forest System—
‘‘(A) is adequate to meet any increasing demands for
timber, recreation, and other uses;
‘‘(B) provides for intensive use, protection, development,
and management of the land under principles of
multiple use and sustained yield of products and services;
‘‘(C) does not damage, degrade, or impair adjacent
resources, including aquatic and wildlife resources, to the
extent practicable;
‘‘(D) reflects long-term funding expectations; and
‘‘(E) is adequate for supporting emergency operations,
such as evacuation routes during wildfires, floods, and
other natural disasters; and
‘‘(2) all projects funded under the Program are consistent
with any applicable forest plan or travel management plan.
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AUTHORIZATION OF APPROPRIATIONS.—There is authorized
to be appropriated to the Secretary of Agriculture to carry out
section 8 of Public Law 88–657 (commonly known as the ‘‘Forest
Roads and Trails Act’’) $250,000,000 for the period of fiscal years
2022 through 2026.

The Reconciliation Bill and the National Forests: Is it “Build Back Better” or “Spreading Large Sums Around”?

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From Colorado Springs Gazette story on old CWPPS.

Previously I posted on the BBB (so-called Build Back Better)  or as I call it, for forest policy, SLSA (Spreading Large Sums Around).   Like I said in the previous post, I don’t think the line items are bad ideas, but a bunch of them overlap with ordinary appropriations, and are not exactly transformational change; and don’t have much to do with climate change.  The name is “building” but in the forest section there’s a great deal of strategizing, assessing and analyzing. I have a copy of the October 28 version and it’s posted  below (just the National Forest section).  Perhaps thanks to the Forest Service, they have changed the WUI in the “10 Billion for WUI Fuel Treatments” back to the HFRA WUI definition, and there are some other wording changes to the test of whether the WUI is completed enough to use the extra $4 billion.  Getting CWPPs back into the mix is a good idea as many places have very old and out of date CWPPs.  At least where communities are adjacent to FS land, this would provide more incentive to update them  The Colorado Springs Gazette did a recent story on that. Let me know if there’s a paywall.

Apologies if I didn’t remove all the line numbers.

My thoughts: these are enormous sums for activities that the FS usually gets through general appropriations, so I’m having a hard time understanding why (for NFs) this is “Build Back Better” rather than “putting huge numbers of dollars into the usual line items, with tweaks for friendly NGOs.” There’s also a serious capacity issue.  Sending too much money when agencies aren’t prepared tends to create waste, in my experience.    It seems like no one really looked at these numbers, and no agency (that I know of ) has ever said “no” to more money.  It doesn’t seem like a very thoughtful nor inclusive process. Of course, that’s politics, not policy but still… we can hope for better.

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For discussion:

Thoughts about what’s in here?

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a) APPROPRIATIONS.—In addition to amounts other wise available, there are appropriated to the Secretary for fiscal year 2022, out of any money in the Treasury not
otherwise appropriated, to remain available until September 30, 2031—

1 (1) $10,000,000,000 for hazardous fuels reduction projects on National Forest System land within the wildland-urban interface;
4 (2) $4,000,000,000 for, on a determination made solely by the Secretary that hazardous fuels reduction projects within the wildland-urban interface described in paragraph have been planned
 to protect, to the extent practicable, at-risk communities, hazardous fuels reduction projects on National Forest System land outside the wildland urban interface that are—

Here’s the previous language: 

“On a determination by the Secretary that hazardous fuels within the wildland-urban interface have been effectively treated to prevent the spread of wildfire to at-risk communities, hazardous fuels reduction projects outside the wildland-urban interface that are” I bolded the changes.

(A) primarily noncommercial in nature,  provided that, in accordance with the best available science, the harvest of merchantable materials shall be ecologically appropriate for restoration and to enhance ecological health and function, and any sale of merchantable materials under this paragraph shall be limited to small diameter trees or biomass that are a by product of hazardous fuel reduction projects;
(B) collaboratively developed; and  (C) carried out in a manner that enhances  the ecological integrity and achieves the restoration of a forest ecosystem; maximizes the retention of old-growth and large trees, as appropriate for the forest type; and prioritizes prescribed fire as the primary means to achieve 3 modified wildland fire behavior;
(3) $1,000,000,000 for vegetation management projects carried out solely on National Forest System land that the Secretary shall select following the receipt of proposals submitted in accordance with  subsections (a), (b), and (c) of section 4003 of the Omnibus Public Land Management Act of 2009 (16 10 U.S.C. 7303);
(4) $400,000,000 for vegetation management projects on National Forest System land carried out  in accordance with a water source management plan or a watershed protection and restoration action plan;
(5) $400,000,000 for vegetation management projects on National Forest System land that— (A) maintain, or contribute toward the restoration of, reference old growth characteristics,
including structure, composition, function, and connectivity;
(B) prioritize small diameter trees and prescribed fire to modify fire behavior; and (C) maximize the retention of large trees, as appropriate for the forest type;
(6) $450,000,000 for the Legacy Roads and Trails program of the Forest Service;
(7) $350,000,000 for National Forest System 4 land management planning and monitoring, prioritized on the assessment of watershed, ecological, and carbon conditions on National Forest Sys tem land and the revision and amendment of older land management plans that present opportunities  to protect, maintain, restore, and monitor ecological integrity, ecological conditions for at-risk species, and carbon storage;
(8) $100,000,000 for maintenance of trails on National Forest System land, with a priority on trails that provide to underserved communities access to National Forest System land;
(9) $100,000,000 for capital maintenance and improvements on National Forest System land, with a priority on maintenance level 3, 4, and 5 roads and improvements that restore ecological integrity and conditions for at-risk species;
(10) $100,000,000 to provide for more efficient and more effective environmental reviews by the Chief of the Forest Service in satisfying the obligations of the Chief of the Forest Service under the
National Environmental Policy Act of 1969 (42 2 U.S.C. 4321 through 4370m–12);
(11) $50,000,000 to develop and carry out activities and tactics for the protection of older and  mature forests on National Forest System land, including completing an inventory of older and mature 7 forests within the National Forest System;
(12) $50,000,000 to develop and carry out activities and tactics for the maintenance and restoration of habitat conditions necessary for the protection and recovery of at-risk species on National Forest System land;
(13) $50,000,000 to carry out post-fire recovery plans on National Forest System land that emphasize the use of locally adapted native plant materials to restore the ecological integrity of disturbed areas and do not include salvage logging; and
(14) $50,000,000 to develop and carry out non- lethal activities and tactics to reduce human-wildlife conflicts on National Forest System land.
(b) PRIORITY FOR FUNDING.—For projects described  in paragraphs (1) through (5) of subsection (a), the Secretary shall prioritize for implementation projects—
(1) for which an environmental assessment or  an environmental impact statement required under  the National Environmental Policy Act of 1969 (42 2 U.S.C. 4321 through 4370m–12) has been completed;
(2) that are collaboratively developed; or
(3) that include opportunities to restore sustainable recreation infrastructure or access or accomplish other recreation outcomes on National For est System lands, if the opportunities are compatible 9 with the primary restoration purposes of the project.
10 (c) LIMITATIONS.—None of the funds made available by this section may be used for any activity—
12 (1) conducted in a wilderness area or wilderness 13 study area;
14 (2) that includes the construction of a permanent road or permanent trail;
16 (3) that includes the construction of a temporary road, except in the case of a temporary road  that is decommissioned by the Secretary not later  than 3 years after the earlier of—
20 (A) the date on which the temporary road  is no longer needed; and  (B) the date on which the project for which the temporary road was constructed is  completed;
(4) inconsistent with the applicable land management plan;
(5) inconsistent with the prohibitions of the rule 4 of the Forest Service entitled ‘‘Special Areas; 5 Roadless Area Conservation’’ (66 Fed. Reg. 3244 6 (January 12, 2001)), as modified by subparts C and 7 D of part 294 of title 36, Code of Federal Regulations; or  (6) carried out on any land that is not National  Forest System land, including other forested land on  Federal, State, Tribal, or private land.
12 (d) DEFINITIONS.—In this section:
13 (1) AT-RISK COMMUNITY.—The term ‘‘at-risk 14 community’’ has the meaning given the term in section 101 of the Healthy Forests Restoration Act of  2003 (16 U.S.C. 6511).
17 (2) COLLABORATIVELY DEVELOPED.—The term  ‘‘collaboratively developed’’ means, with respect to a project located exclusively on National Forest System land, that the project is developed and implemented through a collaborative process that—
22 (A) includes multiple interested persons
23 representing diverse interests, except such persons shall not be employed by the Federal government or representatives of foreign entities;  and
(B)(i) is transparent and nonexclusive; or  (ii) meets the requirements for a resource advisory committee under subsections (c)
through (f) of section 205 of the Secure Rural 7 Schools and Community Self-Determination Act 8 of 2000 (16 U.S.C. 7125).
(3) DECOMMISSION.—The term ‘‘decommission’’ means, with respect to a road—  (A) reestablishing native vegetation on the road;
(B) restoring any natural drainage, watershed function, or other ecological processes that  were disrupted or adversely impacted by the road by removing or hydrologically disconnecting the road prism and reestablishing  stable slope contours; and
(C) effectively blocking the road to vehicular traffic, where feasible.
(4) ECOLOGICAL INTEGRITY.—The term ‘‘ecological integrity’’ has the meaning given the term in section 219.19 of title 36, Code of Federal Regulations (as in effect on the date of enactment of this
(5) HAZARDOUS FUELS REDUCTION 2 PROJECT.—The term ‘‘hazardous fuels reduction project’’ means an activity, including the use of prescribed fire, to protect structures and communities  from wildfire that is carried out on National Forest System land.
(6) RESTORATION.—The term ‘‘restoration’’ has the meaning given the term in section 219.19 of 9 title 36, Code of Federal Regulations (as in effect on  the date of enactment of this Act).
(7) VEGETATION MANAGEMENT PROJECT.—The term ‘‘vegetation management project’’ means an activity carried out on National Forest System land to enhance the ecological integrity and achieve the restoration of a forest ecosystem through the removal of vegetation, the use of prescribed fire, the restoration of aquatic habitat, or the decommissioning of an  unauthorized, temporary, or system road.
(8) WATER SOURCE MANAGEMENT PLAN.—The term ‘‘water source management plan’’ means a plan  developed under section 303(d)(1) of the Healthy  Forests Restoration Act of 2003 (16 U.S.C. 23 6542(d)(1)).
(9) WATERSHED PROTECTION AND RESTORA25 TION ACTION PLAN.—The term ‘‘watershed protection and restoration action plan’’ means a plan developed under section 304(a)(3) of the Healthy For3 ests Restoration Act of 2003 (16 U.S.C. 4 6543(a)(3)).
(10) WILDLAND-URBAN INTERFACE.—The term ‘‘wildland-urban interface’’ has the meaning given the term in section 101 of the Healthy Forests Restoration Act of 2003 (16 U.S.C. 6511).

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

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

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

 

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

 

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

 

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

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

RULEMAKING.—Not later than 2 years after the date of enactment of this Act, the Secretaries shall publish in the Federal Register for public review and comment a series of notices of proposed categorical exclusions from the requirements of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) for implementing prescribed fire projects in, at a minimum, the following forest types:

(A) Longleaf pine forest.

(B) Shortleaf pine forest.

(C) Ponderosa pine forest.

(D) Pinyon-juniper forest.

(E) Dry-site Douglas-fir forest.

(F) Chaparral shrubland.

Here’s what the FS testimony said about that:

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

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

 

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

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

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

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

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

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

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.