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108th Congress Rept. 108-96
HOUSE OF REPRESENTATIVES
1st Session Part 1
HEALTHY FORESTS RESTORATION ACT OF 2003
May 9, 2003.--Ordered to be printed
Mr. Goodlatte, from the Committee on Agriculture, submitted the
R E P O R T
[To accompany H.R. 1904]
[Including cost estimate of the Congressional Budget Office]
The Committee on Agriculture, to whom was referred the bill
(H.R. 1904) to improve the capacity of the Secretary of
Agriculture and the Secretary of the Interior to plan and
conduct hazardous fuels reduction projects on National Forest
System lands and Bureau of Land Management lands aimed at
protecting communities, watersheds, and certain other at-risk
lands from catastrophic wildfire, to enhance efforts to protect
watersheds and address threats to forest and rangeland health,
including catastrophic wildfire, across the landscape, and for
other purposes, having considered the same, report favorably
thereon without amendment and recommend that the bill do pass.
H.R. 1904 contains six titles of authorities giving federal
agencies greater opportunity to undertake a variety of land
management activities designed to reduce the risk to U.S.
forest and rangelands from catastrophic wildfire, disease and
Title I creates procedures allowing federal land managers
to carry out hazardous fuel reduction projects on certain
federal forest and rangelands. Title II authorizes two grants
programs to promote the removal and utilization of forest
biomass for energy and value-added products. Title III
establishes a new watershed forestry assistance program
designed to maintain and improve water quality in forested
landscapes. Title IV directs the Forest Service to conduct
systematic information gathering on certain insect types that
have caused large-scale damage along with early detection
programs and treatments to prevent the spread of infestation.
Title V authorizes a Healthy Forest Reserve Program to
voluntarily protect private land ecosystems that are critical
to the recovery of threatened or endangered species. Finally,
Title VI directs the Secretary of Agriculture to develop a
comprehensive program to inventory and monitor forest stands
for the purpose of maintaining forest health.
Purpose and Need
Forest and rangeland ecosystems in the United States are
being decimated at an alarming rate by large scale catastrophic
wildfire and massive outbreaks of disease, insect infestation
and invasive species. Federal foresters estimate that an
astounding 190 million acres of land managed by the Secretary
of Agriculture and the Secretary of Interior are at an
unnatural height of risk to catastrophic wildfire. Of that,
over seventy million acres are at extreme risk tocatastrophic
wildfire in the immediate future. The summers of 2000 and 2002 were the
two largest and most destructive fire seasons in the last fifty years.
And, at this very moment, we are days away from the beginning of the
2003 fire season where communities in much of the interior West, south/
central Alaska, portions of California, western Great Lake states and
northern Maine are bracing for an above normal fire season due to
dangerously dense forest fuel conditions, persistent drought, limited
winter snowfall and early snow melts.
For the past hundred years, land managers have aggressively
moved to suppress wildland fire in all forms, including
nature's periodic small scale burnings that restore and
rejuvenate forest ecosystems. The unintended result of this
policy is a decades-long build up of forest fuel, woody biomass
and dense underbrush. In some areas, tree density has increased
from fifty trees per acre to as many as five hundred trees per
acre, according to the Forest Service and fire ecologists.
These unnaturally dense forests are only the next lightning
strike or escaped camp fire away from exploding into a large-
Forest ecologists, professional land managers and many
environmental groups agree--the exploding incidence of
catastrophic wildfire and disease and insect infestation pose a
massive threat to the health, diversity and sustainability of
America's forests. Colorado's Hayman Fire provides a startling
example of the kind of enduring environmental degradation that
unnatural wildfire can cause. That fire dumped colossal loads
of mud and soot into Denver's largest supply of drinking water,
annihilated several thousand acres of cathedral-like Ponderosa
Pine old growth, pushed one globally-rare species to the brink
of extinction, and created the worst air pollution conditions
in Denver's recorded history. Other massive fires during the
2002 fire season claimed a similar environmental toll. Oregon's
record-setting Biscuit fire turned 80,000 acres of prime old
growth habitat for the endangered northern spotted owl into a
sterile blackened wasteland. Similarly, the Rodeo-Chediski fire
in Arizona ravaged over 100,000 acres of habitat, including
twenty sensitive nesting sights, for the endangered Mexican
But, such consequences are hardly limited to the natural
resource environment. In 2002, hundreds of homes and other
structures were destroyed, and thousands more were evacuated.
Twenty-three firefighters lost their lives. The American
taxpayer spent in excess of $1.5 billion to contain the blazes
of 2002. And, rural economies that rely on tourism suffered
significant financial losses.
Using 21st century techniques, technology and know-how,
professional land managers can restore America's cherished
landscapes back to a healthy, natural condition. Through the
use of environmentally-smart thinning, prescribed burns, and
other scientifically validated management practices,
overstocked forests can be returned to a natural balance, and
the risks of catastrophic wildfire, insect and disease
infestations reduced. One scientific assessment found that the
only available means of protecting the nation's forest
ecosystems from the ravages of wildfire is the prompt
implementation of these management techniques on a large,
Today, 190 million acres of federal forest and rangeland
are threatened to be engulfed by catastrophic wildfire. Yet,
estimates suggest that federal land managers will treat only
about 2.5 million acres each year because of the
extraordinarily lengthy procedural and documentation
requirements that federal land managers face. This inability to
act is unconscionable. The premise of the Healthy Forests
Restoration Act is simple and clear: Given the massive threat
that catastrophic wildfire, disease and insect infestation pose
to the health of our pristine forest ecosystems, species
habitat, air and water quality, and the safety of thousands of
communities, it is unacceptable that it takes federal land
managers upwards of several years to maneuver forest health
projects through a maze of procedural and analytical
requirements that do little to inform constructive decision-
During Committee consideration of H.R., 1904, concerns were
raised regarding the impact of the bill on the conservation or
anadromous fish and new road construction. It is the
Committee's intent that nothing in this bill should affect the
level of analysis required for the protection of anadromous
fish through the establishment of buffers, or the planning and
construction of a road which will comply with all applicable
laws regarding fish passages and sedimentation. This intent is
reflected in correspondence, included in this report, between
the Department of Agriculture and Congressman Mike Thompson of
U.S. Department of Agriculture,
Office of the Secretary,
Washington, DC, May 8, 2003.
Hon. Mike Thompson,
Cannon House Office Building,
Dear Congressman Thompson: Enclosed please find USDA's
response to questions submitted on May 6, 2003 regarding the
April 30, 2003 hearing on the Healthy Forests Initiative. Thank
you for your questions and your willingness to take proactive
steps to protect our forests, watersheds and communities from
catastrophic fires. You also requested language addressing
changes to H.R. 1904. This is attached.
If you have any further questions, please contact Tina J.
Terrell, Legislative Affairs Staff.
Natural Resources and Environment.
HEARING ON THE HEALTHY FORESTS INITIATIVE, HOUSE OF REPRESENTATIVES,
COMMITTEE ON AGRICULTURE
1. Are there safeguards in place to help prevent
sedimentation of streams throughout the thinning projects? This
includes buffer zones along Class 1, 2 and 3 streams as well as
upslope sedimentation protections. This is of great importance
to the communities in the Pacific Northwest where nearly every
community is affected by threatened or endangered anadromous
Answer: In implementing projects, including thinning
projects, under the Health Forests Initiative, units will be
required to plan and conduct hazardous fuels reduction projects
in a manner consistent with the land and resource management
plan. Each forest plan identifies standards and guidelines for
protecting riparian areas. It is through the proper
application, monitoring and updating of these State certified
and United States Environmental Protection Agency approved
practices and procedures that the Forest Service will meet its
obligations for compliance with water quality standards.
National Forests in California must adhere to very strict
standards and guidelines that have been incorporated into land
and resource management plans from the Northwest Forest Plan,
the Sierra Nevada Framework, and other large-scale management
plans developed to protect threatened and endangered species.
Riparian reserves that have been designated in the Northwest
Forest Plan would be protected under the Aquatic Conservation
Strategy, as standards and guidelines were developed that
prohibit and regulate activities in these areas. These riparian
reserves include those portions of a watershed directly coupled
to streams and rivers, that is, the portions of a watershed
required for maintaining hydrologic, geomorphic, and ecologic
processes. The widths or buffers of a riparian reserve is
identified in the Northwest Forest Plan and applies to all
watersheds until a watershed analysis is completed or a site-
specific analysis is conducted.
When implementing hazardous fuels reduction projects on
national forests, Best Management Practices (BMP's) would be
implemented to minimize impacts on the watershed, and
monitoring would occur to evaluate the implementation and
effectiveness of the BMP's.
2. Thinning projects may require the building of additional
roads on either public or private lands. Will considerations be
made for fish passage and stream sedimentation reduction for
all new roads constructed under this legislation?
Answer: Yes, consideration will be given to maintain or
develop fish passages. All hazardous fuels reduction projects
must be conducted in a manner that is consistent with the land
and resource management plan. As stipulated in the answer to
#1, standards and guidelines will be followed, including those
guidelines that refer to protecting riparian areas and reducing
impacts to streams from sedimentation. Roads that are built to
access hazardous fuels reduction projects will either be used
in future years, or be decommissioned, and the area re-
vegetated and restored.
If a road is to be used in future years, the unit will have
to include this road in their Roads Analysis Process, which is
required by the January 2001 Forest Service Road Management
Policy. This policy provides a method to evaluate the amount of
road that a national forest can sustain indefinitely in full
compliance with environmental and safety laws at the current
maintenance funding levels. Roads analysis is required as part
of the Forest Land Management Plan revision process.
In protecting fish passage on existing roads, the agency
has completed surveys of most culverts in Region 10 (Alaska),
Region 6 (Oregon and Washington), Region 4 (Utah and southern
Idaho) and portions of Region 1 (Montana and northern Idaho).
Surveys are being conducted in other Regions, including
California. We are currently addressing known passage problems
on a priority basis in key watersheds. We are identifying sites
in coordination with our federal, state and tribal partners and
are seeking to maximize the return on our investments by
selecting sites that will provide the greatest increased access
to priority habitat with the least investment.
3. Will environmental and stream protection laws apply to
activities conducted under Title II--Biomass?
Answer: Yes. When a unit identifies a biomass-thinning
projects as a hazardous fuels reduction project, an
environmental analysis will be conducted. The level and
intensity of the analysis will depend on the scope and location
of the individual project. All hazardous fuels reduction
projects shall be planned and conducted in a manner consistent
with the relevant land and resource management plan and all
existing environmental laws and regulations.
4. There are documented concerns from firefighters and
foresters that the focus for fuels reduction should be within
the urban interface. Although the bill places a priority on
these areas, shouldn't we devote a high percentage of the
reduction activities within these areas to protect communities
Answer: For FY 2001 and FY 2002, the Hazardous Fuel program
accomplishments included treatment of over 2.6 million acres,
of which nearly 1.4 million acres, or 52 percent, were in the
A Memorandum of Understanding for the development of a
collaborative fuels treatment program among the Forest Service,
the Bureau of Land Management, the U.S. Fish and Wildlife
Service, the National Park Service, the National Association of
State Foresters, and the National Association of Counties was
signed in January 2003. The purpose of this Memorandum of
Understanding is to provide the framework of a process for the
signers to collaborate on the annual selection of a fuels
treatment program of work within their respective jurisdictions
to provide for community protection and enhance the health of
forests and rangelands. We believe this arrangement will result
in the best combination of fuels treatments across all
jurisdictions in both the wildland/urban interface and the non-
wildland/urban interface areas.
5. Why doesn't the Secretary need to make environmental
concessions in areas that have documented insect infestations
and how does the Secretary consider what is considered an
Answer: The priority is for areas that should be documented
insect infestations, to implement vegetation projects quickly
to ensure an infestation is eradicated, and restoration and
rehabilitation can occur.
The National Invasive Species Council, of which the
Department is a member, defines an invasive species as (1) non-
native (or alien) to the ecosystem under consideration and (2)
whose introduction causes or is likely to cause economic or
environmental harm or harm to human health. Non-invasive
species that cause or may cause significant negative impacts
and do not provide an equivalent benefit to society are a
From 1997-2001, tree mortality caused by bark beetles was
detected by aerial surveys on approximately 14 million acres of
forestland. Overall, about 70 million acres of all forested
lands are at risk to future mortality from insects and
diseases; 33 of the 70 million acres are on NFS forestland
(based on the current Insect and Disease Risk Map).
A separate analysis shows nearly 73 million acres of NFS
forestland are prone to catastrophic fire based on current
condition and departure from historic fire regimes (Fire
Regimes 1 & 2 and Condition Classes 2 & 3). Based on these two
maps, approximately 9.5 million acres are at risk to both pests
caused mortality and fire.
Invasive species of insects, diseases and plants continue
to impact our native ecosystems by causing mortality to, or
displacement of, native vegetation. Invasive species also
negatively impact federally listed endangered species. The
National Fire Plan has enhanced our efforts to prevent and
suppress insect and disease outbreaks. Insect and disease
prevention and suppression treatments were completed on 1.6
million acres of forest lands in 2002.
Finally, you inquired about the procedures for amending or
revising the standards and guidelines in land and resource
management plans. As indicated in my answers to question #1 and
#2, a hazardous fuels reduction project must be consistent with
a land and resource management plans. All national forests must
complete a land and resource management plan as stated in the
National Forest Management Act of 1976 (NFMA). NFMA also
requires Land and Resources Management Plans (LRMPs) be revised
every 15 years. This requirement recognizes that LRMPs need to
be examined periodically to ensure management assumptions and
guidance is correct, and new scientific information becomes
available. The primary process for ensuring that planning
direction is kept current is the amendment process.
A forest plan may also be revised whenever the Forest
Supervisor determines that conditions or demands in the area
covered by the plan have changed significantly or when changes
in Resource Planning Act policies, goals, or objectives would
have a significant effect on forest level programs. During the
monitoring and evaluation process, an agency's
interdisciplinary team may recommend a revision of the forest
plan at any time. Revisions are not effective until considered
and approved in accordance with the requirements for the
development and approval of a forest plan. The Forest
Supervisor shall review the conditions on the land covered by
the plan at least every 5 years to determine whether conditions
or demands of the public have changed significantly. All
amendments and revisions are subject to public notice and
comment, environmental review under the National Environmental
Policy Act, and administrative appeal.
Sec. 1. Short title; table of contents
Gives the Act a short title of ``Healthy Forests
Restoration Act of 2003.'' Lists table of contents.
Sec. 2. Purpose
Lists the purposes of this Act, including: to reduce the
risks of damage to communities, municipal water supplies and
federal lands from catastrophic wildfire; to authorize grant
programs to improve the commercial value of forest biomass; to
enhance efforts to protect watersheds and address threats to
forest and rangeland health; to promote systematic information
gathering to address the impacts of insect infestation on
forest and rangeland health; to improve the capacity to detect
insect and disease infestations at an early stage; and to
benefit threatened and endangered species, improve biological
diversity and enhance carbon sequestration.
TITLE I--FOREST HEALTH ON NATIONAL FORESTS AND PUBLIC LANDS
Sec. 101. Definitions
Defines the terms: authorized hazardous fuels reduction
project, condition class 2, condition class 3, day, decision
document, federal lands, hazardous fuels reduction project,
implementation plan, interface community and intermix
community, municipal water supply system, Secretary concerned,
threatened and endangered species habitat.
Sec. 102. Authorized hazardous fuels reduction projects
Allows for authorized hazardous fuels reduction projects on
federal lands that: (1) are located in an interface or intermix
community, (2) are located in proximity to such communities,
(3) are condition class 3 or 2 and located in proximity to a
municipal water supply (or a perennial stream, including rivers
and other permanent natural flowing water sources feeding a
municipal water supply), (4) are condition class 3 or 2 and
have been identified as an area where windthrow, blowdown, the
existence or threat of disease or insect infestation poses a
threat to forest or rangeland health, or (5) contain threatened
and endangered species.
Requires projects to be planned and conducted in a manner
consistent with land and resource management plans or an
applicable land use plan.
Limits the acreage available for authorized hazardous fuels
reduction projects to 20,000,000 acres.
Gives the Secretary concerned sole discretion to plan and
conduct an authorized project within certain parameters,
including tree diameter size, tree density and species
Prohibits the Secretary concerned from conducting an
authorized hazardous fuels reduction project on the following
federal lands: a component of the National Wilderness
Preservation System, federal lands where the removal of
vegetation is prohibited or restricted by a Congress or a
presidential proclamation, or wilderness study areas.
Prohibits the construction of any new permanent roads in
any inventoried roadless area.
Sec. 103. Prioritization for communities and watersheds
Gives priority to authorized hazardous fuel reduction
projects which provide for protection of communities and
Sec. 104. Environmental analysis
Gives the Forest Service and Bureau of Land Management
discretionary authority to limit the analysis ordinarily
required under the National Environmental Policy Act (``NEPA'')
to the proposed agency action, meaning the agencies would not
be required to analyze and describe a number of different
alternatives to the preferred course.
Codifies the public participation requirements set out in
the Western Governors Association 10-year wildfire management
strategy for use in conducting hazardous fuels reduction
Directs the Secretary concerned to sign a decision document
for each authorized hazardous fuels reduction project and
provide notice of that document.
Requires the Secretary concerned to monitor the
implementation of authorized hazardous fuels reduction project.
Sec. 105. Special Forest Service administrative review process
Directs the Secretary of Agriculture to establish an
administrative review process for the Forest Service within 90
days after the enactment of this Act that will serve as the
sole means by which a person can seek administrative redress
regarding an authorized hazardous fuels reduction project.
Limits the administrative process to be developed to
persons who have submitted specific and substantive written
comments during the preparation stage of the project.
Clarifies that the Appeals Reform Act, section 322 of P.L.
102-381, 16 U.S.C. 1612 note, does not apply to an authorized
hazardous fuels reduction project.
Sec. 106. Special requirements regarding judicial review of authorized
hazardous fuels reduction projects
Establishes a time limit for filing a challenge to an
authorized hazardous fuels reduction project to 15 days within
notice of the final agency action.
Limits the duration of any preliminary injunction granted
on an authorized project to 45 days subject to renewal.
Requires a court in which an action or an appeal is filed
to render a final determination within 100 days of when the
complaint or appeal is filed.
Sec. 107. Standard for injunctive relief for agency action to restore
fire-adapted forest or rangeland ecosystems
Directs the court, in considering a request for injunctive
relief, to consider the public interest in avoiding long-term
harm to the ecosystem.
Directs the court to give deference to any agency finding
that the balance of harm and the public interest in avoiding
the short-term effects of the agency action is outweighed by
the public interest in avoiding long-term harm to the
Sec. 108. Rules of construction
Clarifies that nothing in this title shall be construed to
affect or limit the use of other authorities by the Secretary
concerned to plan or conduct a hazardous fuels reduction
project on federal lands.
Clarifies that nothing in this title shall be construed to
prejudice the consideration or disposition of any legal action
concerning the Roadless Area Conservation Rule.
Sec. 201. Findings
Lists Congressional findings as to the need for forest
management activities to be conducted, including the removal of
Sec. 202. Definitions
Defines the terms: biomass, Indian tribe, person, preferred
community, Secretary concerned.
Sec. 203. Grants to improve the commercial value of forest biomass for
electric energy, useful heat, transportation fuels, and
petroleum-based product substitutes
Establishes a biomass commercial use grant program to
extend assistance to any person who owns or operates a facility
that uses biomass as a raw material to produce energy.
Establishes a value-added grant program to extend
assistance to persons to offset the cost of projects to add
value to biomass.
Authorizes $25 million for each of the fiscal years 2004
Sec. 204. Reporting requirement
Requires the Secretary of Agriculture, in consultation with
the Secretary of Interior, to submit a report describing the
results of the grant programs by October 1, 2010 to: House
Agriculture Committee, Resources Committee, Senate Agriculture
Committee, Senate Energy and Natural Resources Committee.
TITLE III--WATERSHED FORESTRY ASSISTANCE
Sec. 301. Findings and purpose
Lists Congressional findings relating to the need for
protection of watershed health in forest management practices.
Describes the purpose of this title.
Sec. 302. Establishment of Watershed Forestry Assistance Program
Authorizes the Secretary, acting through the Forest
Service, to provide technical, financial and related assistance
to private forest landowners through the State foresters and
equivalent state officials. Focuses assistance to the purpose
of expanding state forest stewardship capacities and activities
through best management practices to improve watershed health.
Includes a technical assistance program to protect water
quality and a watershed cost-share program. Directs the
Secretary to make awards under the cost-share program to
communities, non-profit groups (which would include
conservation districts) and non-industrial private forest
landowners for watershed forestry projects.
Authorizes $15 million for each of the fiscal years 2004
through 2008. Directs the Secretary to devote at least 75
percent of the funds appropriated in a fiscal year to the cost-
TITLE IV-- ACCELERATED INFORMATION GATHERING TO ADDRESS INSECT
Sec. 401. Definitions, findings, and purpose
Defines the terms: applied silvicultural assessment,
federal lands, Secretary concerned, 1890 institutions.
Lists Congressional findings as to insect infestation,
resulting damage and needfor assessment and treatment.
States the purposes of this title.
Sec. 402. Accelerated information gathering regarding bark beetles,
including southern pine beetles, hemlock wooly adelgids,
emerald ash borers, red oak borers and white oak borers
Directs the Department of Agriculture, acting through the
Forest Service and U.S. Geological Survey, to conduct an
accelerated program to plan, conduct, and promote systematic
information gathering on certain insect types that have caused
large-scale damage to forest ecosystems.
Directs the Secretary to assist land managers in the
development of treatments and strategies to improve forest
health and reduce the susceptibility of forest ecosystems to
Directs the Secretary to disseminate the results of such
information gathering, treatments and strategies.
Directs the Secretary to establish and carry out the
program in cooperation with scientists from universities and
forestry schools, state agencies and private and industrial
Sec. 403. Applied silvicultural assessments
Enables the Secretary concerned to conduct applied
silvicultural assessments on federal lands that the Secretary
determines in its sole discretion are at risk for infestation
with certain named pests. Limits such assessment areas to 1,000
acres per assessment. Applies an overall acreage limitation to
Requires the Secretary to provide notice of each applied
silvicultural assessment proposed to be carried out. Requires
the Secretary to provide an opportunity for public input.
Creates a categorical exclusion from further analysis under
NEPA which eliminates the Secretary's responsibility to make
any findings as to whether the project has a significant effect
on the environment.
Sec. 404. Relation to other laws
Clarifies that the authorities provided to the Secretary
concerned in this title are supplemental to authorities
provided in any other law.
Sec. 405. Authorization of appropriations
Authorizes the appropriation of such sums as may be
necessary to carry out this title in fiscal years 2004 through
TITLE V--HEALTHY FORESTS RESERVE PROGRAM
Sec. 501. Establishment of Healthy Forests Reserve Program
Establishes a Healthy Forests Reserve Program within the
Forest Service to restore degraded forest lands and to promote
the recovery of endangered species.
Directs the Secretary of Agriculture to carry out the
program in cooperation with the Secretary of the Interior,
acting through the United States Fish and Wildlife Service
Sec. 502. Eligibility and enrollment of lands in program
Directs the Secretary of Agriculture, in consultation with
the Secretary of the Interior, to designate rare forest
ecosystems to be eligible for the reserve program. Limits
enrollment to 1 million acres.
Allows lands to be enrolled pursuant to a 10-year cost-
share agreement, a 30-year easement or a permanent easement
with a buyback option. Leaves the enrollment method up to the
Sec. 503. Conservation plans
Requires participating landowners to develop a conservation
plan with the FWS describing the land use activities to be
permitted on enrolled lands.
Sec. 504. Financial assistance
Sets forth the payment structure for 10-year, 30-year and
permanent enrollment options as well as the procedure to
exercise a buyback option in the case of a permanent easement.
Sec. 505. Technical assistance
Directs the Forest Service and FWS to provide landowners
with the technical assistance necessary to comply with the
terms of agreements and easements created in this program.
Sec. 506. Safe harbor
Directs the Secretary of the Interior to provide a safe
harbor under section 7 of the Endangered Species Act to
participating landowners when such enrollment will result in a
net conservation benefit for listed species.
Sec. 507. Authorization of appropriations
Authorizes $15 million for each of the fiscal years 2004
TITLE VI--MISCELLANEOUS PROVISIONS
Sec. 601. Forest stands inventory and monitoring program to improve
detection of and response to environmental threats
Requires the Secretary of Agriculture to carry out a
comprehensive program to inventory, monitor, characterize,
assess and identify forest stands in units of the National
Forest System and on private lands with the consent of the
Directs the Secretary, in carrying out this monitoring
program, to develop a comprehensive early warning system which
will enable forest managers to treat the land before a threat
to forest health gets out of control.
Authorizes $5 million for each of the fiscal years in 2004
In response to the catastrophic wildfires of the 2000
season, Congress urged the Administration to develop a
comprehensive plan for reducing the fire hazard, and
rehabilitating burned areas. This effort resulted in the
National Fire Plan, and the Comprehensive Strategy for
Implementing the Fire Plan. The Plan is a collaborative effort
of the Department of Agriculture, Interior, the States,
Counties, and numerous private conservation, environmental and
interest groups. In August 2002, the President announced the
Healthy Forest Initiative (HFI), in response to a catastrophic
fire season (the season of 2002).
On April, 30, 2003, the Committee on Agriculture held a
hearing on the President's Healthy Forests Initiative which
identifies real solutions to some of the problems facing our
forests and the communities surrounding them.
The first panel of witnesses included Mark Rey, Under
Secretary for Natural Resources and the Environment of the U.S.
Department of Agriculture, Rebecca Watson, Assistant Secretary
for Land and Minerals Management of the U.S. Department of the
Interior, Dale Bosworth, Chief of the U.S. Forest Service, and
Pete Roussopoulos, Director of the Southern Research Station
for the U.S. Forest Service.
The second panel included Steven Koehn, Maryland State
Forester, National Association of States Foresters from
Annapolis, Maryland, Dr. John Helms, Professor Emeritus at the
University of California Berkeley on behalf of the Society of
American Forester from Berkeley, California, Mr. James Walls,
Executive Director of Lake County Resources Initiative in
partnership with Sustainable Northwest from Lake County,
Oregon, and Mr. Jeffrey Hardesty, U.S. Director of Global Fire
Initiative of the Nature Conservancy from Gainesville, Florida.
II. FULL COMMITTEE CONSIDERATION
The Committee on Agriculture met, pursuant to notice, with
a quorum present, on May 8, 2003, to consider H.R. 1904, the
Healthy Forests Restoration Act of 2003, and other pending
Chairman Goodlatte called the meeting to order and made an
opening statement as did Ranking Member Stenholm. Without
objection, H.R. 1904 was placed before the Committee and open
for amendment at any point. Counsel was then recognized to give
a brief summary of the bill.
Mr. Lucas of Oklahoma was recognized to offer and explain
an amendment to limit technical assistance to the Environmental
Quality Incentive Program (EQUIP), Farmland Protection Program
(EPP), Grasslands Reserve Program (GRP), and the Wildlife
Habitat Incentives Program (WHIP). Discussion occurred and
without objection, the amendment was withdrawn.
Mr. Udall of Colorado was then recognized to offer and
explain an amendment to require the Forest Service and Bureau
of Land Management to determine priorities for fuel reduction
projects after consultation with State Foresters and
consideration of the recommendations of statewide advisory
councils. Discussion occurred and by voice vote, the amendment
Mr. Udall was then recognized to offer and explain a second
amendment to restore priority community protection, a sunset
clause, and administrative stays to Title I. Discussion
occurred and by a voice vote, the amendment failed.
Mr. Udall was recognized to offer and explain a third
amendment to exempt additional lands from insect assessments
under Title IV and prohibit the use of herbicides in insect
assessments on lands in municipal watersheds. Discussion
occurred and by a voice vote, the amendment failed.
Mr. Udall was again recognized to offer and explain a
fourth and last amendment to the bill to delete section 403(d),
permitting applied silvicultural assessments on Federal lands.
Discussion occurred and by a voice vote, the amendment failed.
Mr. Thompson of California was recognized to discuss report
language regarding buffer zones along Class 1, 2, and 3 streams
and conditions on road construction. Discussion occurred, and
without objection, the report language was accepted.
There being no further amendments, Mr. Stenholm reminded
Members in which the spirit this Committee has always operated
under in the acceptance of Minority, Additional or Dissenting
Views to a committee report.
Chairman Goodlatte then advised Members that pursuant to
the rules of the House of Representatives that Members have 2
calendar days to file such views with the Committee.
Mr. Stenholm moved that H.R. 1904, be adopted and reported
favorably to the House with the recommendation that it do pass.
By voice vote, the motion was agreed to in the presence of
a quorum, H.R. 1904 was ordered favorably reported, without
amendment to the House of Representatives.
Mr. Stenholm then moved that pursuant to clause 1 of rule
XXII, that the Committee authorize the Chairman to offer such
motion as may be necessary in the House to go to conference
with the Senate on H.R. 1904, or a similar Senate bill. Without
objection, the motion was agreed to.
Without objection, staff was given permission to make any
necessary clerical, technical or conforming changes to reflect
the intent of the Committee.
Chairman Goodlatte thanked all the Members and adjourned
the meeting subject to the call of the chair.
Reporting the Bill--Rollcall Votes
In compliance with clause 3(b) of rule XIII of the House of
Representatives, H.R. 1904 was reported by voice vote with a
majority quorum present. There was no request for a recorded
Committee Oversight Findings
Pursuant to clause 3(c)(1) of rule XIII of the Rules of the
House of Representatives, the Committee on Agriculture's
oversight findings and recommendations are reflected in the
body of this report.
Budget Act Compliance (Sections 308, 402, and 423)
The provisions of clause 3(c)(2) of rule XIII of the Rules
of the House of Representatives and section 308(a)(1) of the
Congressional Budget Act of 1974 (relating to estimates of new
budget authority, new spending authority, new credit authority,
or increased or decreased revenues or tax expenditures) are not
considered applicable. The estimate and comparison required to
be prepared by the Director of the Congressional Budget Office
under clause 3(c)(3) of rule XIII of the Rules of the House of
Representatives and sections 402 and 423 of the Congressional
Budget Act of 1974 submitted to the Committee prior to the
filing of this report are as follows:
Congressional Budget Office,
Washington, DC, May 9, 2003.
Hon. Bob Goodlatte,
Chairman, Committee on Agriculture,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1904, the Healthy
Forests Restoration Act of 2003.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Megan
H.R. 1904--Healthy Forests Restoration Act of 2003
Summary: CBO estimates that H.R. 1904 would authorize the
appropriation of $70 million in 2004 and $350 million over the
2004-2008 period to research and restore forests on federal,
state, and private lands. Assuming appropriation of the
necessary amounts, CBO estimates that implementing the bill
would cost $12 million in 2004 and $278 million over the next
five years. Enacting this legislation could affect offsetting
receipts (a credit against direct spending), but CBO estimates
that any such effects would total less than $500,000 a year.
H.R. 1904 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA)
and would impose no costs on state, local, or tribal
governments. CBO assumes that states' participation in the
watershed forestry assistance programs authorized by this bill
would be voluntary. Federal funds authorized for these and
other programs would benefit state, local, and tribal
Estimated cost to the Federal Government: The estimated
budgetary impact of H.R. 1904 is shown in the following table.
The costs of this legislation fall within budget function 300
(natural resources and environment).
By fiscal year in millions of dollars--
2004 2005 2006 2007 2008
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Estimated authorization level...................................... 70 70 70 70 70
Estimated outlays.................................................. 12 41 61 80 84
Basis of estimate
For this estimate, CBO assumes that H.R. 1904 will be
enacted before the end of fiscal year 2003 and that amounts
estimated to be necessary to implement the bill will be
provided each year. Estimates of outlays are based on
historical spending patterns for similar activities. Provisions
that would affect spending subject to appropriation and direct
spending are described below.
Spending subject to appropriation
S. 1904 would specifically authorize the appropriation of
$60 million in 2004 and $300 million over the 2004-2008 period
for the Forest Service and the Department of the Interior (DOI)
to support research and restoration of federal, state, and
private forests. The bill would authorize those agencies to
make grants to eligible entities that use biomass to produce
energy, provide states with technical and financial assistance
to support watershed management, purchase conservation
easements from private landowners, and assess the health of
federal and private forests. Based on information from the
agencies and historical spending patters for similar
activities, CBO estimates that these programs would cost $9
million in 2004 and $230 million over the next five years.
Based on information from the Forest Service and DOI about
the level of effort required to investigate infestations of
forests by insects and to develop treatments to reduce the risk
of infestation, CBO estimates that S. 1904 would authorize the
appropriation of $10 million a year over the 2004-2008 period.
We estimate that fully funding these activities would cost $3
million in 2004 and $48 million over the next five years.
Direct spending (including offsetting receipts)
Title I would authorize expedited procedures for planning
and conducting certain projects to reduce the risk of wildfires
on certain federal lands managed by the Forest Service or the
Bureau of Land Management (BLM). Under the bill, those
expedited procedures would limit some environmental assessment
requirements and shorten administrative and judicial appeals.
According to the Forest Service and BLM, the expedited
procedures could affect the timing of some projects that
generate offsetting receipts, such as timber harvests, that the
agencies plan to conduct under current law. Based on
information from the agencies, however, CBO estimates that any
subsequent change in offsetting receipts would total less than
Intergovernmental and private-sector impact: H.R. 1904
contains no intergovernmental or private-sector mandates as
defined in UMRA and would impose no costs on state, local, or
tribal governments. CBO assumes that states' participation in
the watershed forestry assistance programs authorized by this
bill would be voluntary. Federal funds authorized for these and
other programs would benefit state, local, and tribal
Previous CBO estimate: On May 7, 2003, CBO transmitted a
cost estimate for S. 14, the Energy Policy Act of 2003, as
introduced on April 30, 2003. A provision in that bill is
substantively similar to a provision of H.R. 1904 that would
authorize grants to eligible entities that use biomass to
produce energy, and our estimates of the cost of such grants
($25 million a year) are the same under both bills.
Estimate prepared by: Federal costs: Megan Carroll; impact
on state, local, and tribal governments: Marjorie Miller;
impact on the private sector: Cecil McPherson.
Estimate approved by: Peter H. Fontaine, Deputy Assistant
Director for Budget Analysis.
Performance Goals and Objectives
With respect to the requirement of clause 3(c)(4) of rule
XIII of the Rules of the House of Representatives, the
performance goals and objections of this legislation are to
improve the capacity of the Secretary of Agriculture and the
Secretary of the Interior to plan and conduct hazardous fuels
reduction projects of National Forest System lands and Bureau
of Land Management lands aimed at protecting communities,
watersheds, and certain other at-risk lands from catastrophic
wildfire, to enhance efforts to protect watersheds and address
threats to forest and rangeland health, including catastrophic
wildfire, across the landscape.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the Committee finds the
Constitutional authority for this legislation in Article I,
clause 8, section 18, that grants Congress the power to make
all laws necessary and proper for carrying out the powers
vested by Congress in the Constitution of the United States or
in any department or officer thereof.
Committee Cost Estimate
Pursuant to clause 3(d)(2) of rule XIII of the Rules of the
House of Representatives, the Committee report incorporates the
cost estimate prepared by the Director of the Congressional
Budget Office pursuant to sections 402 and 423 of the
Congressional Budget Act of 1974.
Advisory Committee Statement
No advisory committee within the meaning of section 5(b) of
the Federal Advisory Committee Act was created by this
Applicability to the Legislative Branch
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act (Public Law
Federal Mandates Statement
The Committee adopted as its own the estimate of Federal
mandates prepared by the Director of the Congressional Budget
Office pursuant to section 423 of the Unfunded Mandates Reform
Act (Public Law 104-4).
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italic and existing law in which no change is
proposed is shown in roman):
SECTION 6 OF THE COOPERATIVE FORESTRY ASSISTANCE ACT OF 1978
SEC. 6. WATERSHED FORESTRY ASSISTANCE.
(a) General Authority and Purpose.--The Secretary, acting
through the Forest Service, may provide technical, financial,
and related assistance to State foresters and equivalent State
officials for the purpose of expanding State forest stewardship
capacities and activities through State forestry best-
management practices and other means at the State level to
address watershed issues on non-Federal forested lands and
potentially forested lands.
(b) Technical Assistance To Protect Water Quality.--
(1) In general.--The Secretary, in cooperation with
State foresters or equivalent State officials, shall
engage interested members of the public, including
nonprofit organizations and local watershed councils,
to develop a program of technical assistance to protect
water quality, as described in paragraph (2).
(2) Purpose of program.--The program under this
subsection shall be designed--
(A) to build and strengthen watershed
partnerships that focus on forested landscapes
at the local, State, and regional levels;
(B) to provide State forestry best-management
practices and water quality technical
assistance directly to nonindustrial private
(C) to provide technical guidance to land
managers and policy makers for water quality
protection through forest management;
(D) to complement State and local efforts to
protect water quality and provide enhanced
opportunities for consultation and cooperation
among Federal and State agencies charged with
responsibility for water and watershed
(E) to provide enhanced forest resource data
and support for improved implementation and
monitoring of State forestry best-management
(3) Implementation.--The program of technical
assistance shall be implemented by State foresters or
equivalent State officials.
(c) Watershed Forestry Cost-Share Program.--
(1) In general.--The Secretary shall establish a
watershed forestry cost-share program to be
administered by the Forest Service and implemented by
State foresters or equivalent State officials. Funds or
other support provided under such program shall be made
available for State forestry best-management practices
programs and watershed forestry projects.
(2) Watershed forestry projects.--The State forester
or equivalent State official of a State, in
coordination with the State Forest Stewardship
Coordinating Committee established under section 19(b)
for that State, shall annually make awards to
communities, nonprofit groups, and nonindustrial
private forest landowners under the program for
watershed forestry projects described in paragraph (3).
(3) Project elements and objectives.--A watershed
forestry project shall accomplish critical forest
stewardship, watershed protection, and restoration
needs within a State by demonstrating the value of
trees and forests to watershed health and condition
(A) the use of trees as solutions to water
quality problems in urban and rural areas;
(B) community-based planning, involvement,
and action through State, local and nonprofit
(C) application of and dissemination of
monitoring information on forestry best-
management practices relating to watershed
(D) watershed-scale forest management
activities and conservation planning; and
(E) the restoration of wetland (as defined by
the States) and stream-side forests and the
establishment of riparian vegetative buffers.
(4) Cost-sharing.--Funds provided under this
subsection for a watershed forestry project may not
exceed 75 percent of the cost of the project. Other
Federal funding sources may be used to cover a portion
of the remaining project costs, but the total Federal
share of the costs may not exceed 90 percent. The non-
Federal share of the costs of a project may be in the
form of cash, services, or other in-kind contributions.
(5) Prioritization.--The State Forest Stewardship
Coordinating Committee for a State shall prioritize
watersheds in that State to target watershed forestry
projects funded under this subsection.
(6) Watershed forester.--Financial and technical
assistance shall be made available to the State
Forester or equivalent State official to create a State
best-management practice forester to lead statewide
programs and coordinate small watershed-level projects.
(1) In general.--The Secretary shall devote at least
75 percent of the funds appropriated for a fiscal year
pursuant to the authorization of appropriations in
subsection (e) to the cost-share program under
subsection (c) and the remainder to the task of
delivering technical assistance, education, and
planning on the ground through the State Forester or
equivalent State official.
(2) Special considerations.--Distribution of these
funds by the Secretary among the States shall be made
only after giving appropriate consideration to--
(A) the acres of nonindustrial private
forestland and highly erodible land in each
(B) each State's efforts to conserve forests;
(C) the acres of forests in each State that
have been lost or degraded or where forests can
play a role in restoring watersheds; and
(D) the number of nonindustrial private
forest landowners in each State.
(e) Authorization of Appropriations.--There is authorized to
be appropriated to carry out this section $15,000,000 for each
of the fiscal years 2004 through 2008.
House of Representatives,
Committee on Agriculture,
Washington, DC, May 9, 2003.
Hon. Richard W. Pombo,
Chairman, Committee on Resources,
Longworth House Office Building, Washington, DC.
Dear Chairman Pombo: On May 8, 2003, the Committee on
Agriculture ordered favorably reported H.R. 1904, the Healthy
Forests Restoration Act of 2003, without amendment. The bill
was referred primarily to the Committee on Agriculture, with an
additional referral to the Committee on Resources.
As you know, H.R. 1904 is a critical part of the
President's Healthy Forest Initiative and the Leadership of the
House plans on scheduling the bill for consideration by the
full House of Representatives as early as next week. Therefore,
I respectively request that the Committee on Resources waive
further consideration of bill.
Of course, by allowing this to occur, the Committee on
Resources does not waive its jurisdiction over H.R. 1904 or any
other similar matter for all purposes. Finally, in the event a
conference with the Senate is requested on this measure, I will
support the naming of members from the Committee on Resources
to the conference committee.
Thank you for your cooperation in which our respective
Committees have worked together and I look forward to working
with you in the future on matters of shared jurisdiction.
House of Representatives,
Committee on Resources,
Washington, DC, May 9, 2003.
Hon. Bob Goodlatte,
Chairman, Committee on Agriculture,
Longworth House Office Building, Washington, DC.
Dear Mr. Chairman: Thank you for your letter requesting
that the Committee on Resources not insist in its additional
referral of H.R. 1904, the Healthy Forests Restoration Act of
2003. The Committee on Resources has had a long-standing and
active interest in forest health issues in public forest, and I
have enjoyed working with you, Forests and Forest Health
Subcommittee Chairman McInnis and your staff on this critical
contribution to the President's Healthy Forest Initiative.
Knowing your interest in expediting consideration of this
bill by the full House of Representatives in advance of the
upcoming fire season, I agree to allow the Committee on
Resources to be discharged from further consideration of H.R.
1904. This action does not waive the Committee's jurisdiction
over any provision in H.R. 1904 or similar provisions in other
bills. In addition, I ask that you support my request to have
the Committee on Resources represented on the conference on
this bill, if a conference is necessary. Finally, I ask that
you include this letter in the Committee's bill report or the
Congressional Record during debate on H.R. 1904 when it is
considered by the House of Representatives.
Thank you again for your leadership on this issue and I
look forward to working with you again on matters of mutual
Richard W. Pombo,
DISSENTING VIEWS OF REPRESENTATIVE MARK UDALL
I have serious concerns about several aspects of H.R. 1904.
But, above all, I am disappointed with the manner in which this
legislation has been developed and considered.
I do think we need to act to protect our communities and
their water supplies, by reducing the built-up fuels that add
to the fire dangers that threaten them.
That's why I have introduced legislation to expedite those
thinning projects. It is also why last year I joined with my
Colorado colleague, Representative McInnis, and other Members
to develop the bill the Resources Committee approved last year.
I voted for that bill last year. And if H.R. 1904 was the
same as that bill, I would vote for it again. But this is not
the same bill.
Instead of building on the work the Resources Committee did
last year, the Resources and Agriculture Committees were
presented with a quite different measure--one that adds a long
list of new provisions while omitting some of the key parts of
the bill I voted for last year. Some of the new provisions may
be desirable, but others clearly will be controversial.
It seems to me it would be better to keep the focus on
speeding up work to reduce the risks to our communities and
their water supplies. Adding new issues and new controversies
can only complicate matters and make it more difficult to pass
a bill to accomplish those goals.
I fear that going forward with H.R. 1904 as it stands means
missing an opportunity to shape a bill that can attract much
broader support. I also fear that the bill as it stands will
exacerbate disputes and lead to increased conflicts and
That is why, as both the Resources and Agriculture
Committees considered this legislation, I sought to revise it
so it would more closely resemble the bill reported by the
Resources Committee last year. Unfortunately, those efforts
were not successful, and so I am not able to support the
legislation as it stands.
Now, let me take this opportunity to explain my views and
concerns in more detail.
Many western communities are at risk of unusually severe
wildfires. The cause is a combination of severe drought, the
overgrown conditions of many federal forest lands resulting
from past fire-suppression policies, and the growing number of
settlements pressing against or into forested areas. I have
consistently worked to reduce those risks.
Last year's terrible fires in Colorado and other States
were a dramatic confirmation of those risks, but my concerns
began much earlier. Since my first election to Congress, I have
made it a point to visit parts of Colorado that have been
burned by very severe wildfires or that are at risk of similar
fires. I have walked areas that have been treated through
controlled fires and mechanical thinning and seen the dramatic
difference that such treatments can make in reducing wildfire
risks. I have been to the front lines of a burning wildfire--
the Big ElkMeadows fire near Estes Park--and have talked with
homeowners, foresters, forest ecologists, forest users and
conservationists to try to better understand what strategies can reduce
the risks to lives and property.
As a result, I am convinced we need to do more to reduce
the risks to our communities, our water supplies, and our
citizens. That is why I have introduced legislation (H.R. 5098
of the 106th Congress; H.R. 3948 of the 107th Congress; H.R.
1042 of the 108th Congress) to expedite the work of removing
excessive fire-prone materials and to require the government to
focus its efforts in the areas where this work will have the
most immediate benefit for the most people.
H.R. 1904 purports to share some of these purposes--but it
also includes provisions I consider not only unnecessary but
unwise and inappropriate.
ENVIRONMENTAL ANALYSIS AND PUBLIC INVOLVEMENT AS RELATED TO FUEL-
I do not think our national environmental laws are the
obstacle to improving our response to the wildfire-related
risks to our communities. So, I see no real need to make any
fundamental changes in those laws.
This is not to suggest that our national environmental laws
are beyond improvement, nor that we cannot explore ways to
reduce bureaucracy and lawsuits. But I think we should be very
cautious about proposals to lessen public involvement in
decisions about the management of the federal lands.
I think a better approach is to increase public involvement
during the planning and other initial stages of fuel-reduction
projects. That was the purpose of an amendment I offered during
the markup of the bill. The idea is to make it less likely
those projects will be delayed by controversies or lawsuits, by
developing support at the front end for projects that are
urgently needed, narrowly tailored and scientifically sound.
Toward that end, the amendment would have built on the public
collaboration provisions already in the bill, to make it a
truly cooperative program.
The amendment called for creation of statewide advisory
councils to work with the Forest Service and the BLM on the
selection of specific projects. These councils would include
broad representation of interests and would include scientific
participation, and would develop projects in a collaborative
fashion so as to avoid opposition, delays and appeals at the
back-end when projects are being implemented. I think this
would be a good way to foster real community involvement in
developing good projects and so reduce controversies, resulting
in faster action to protect people's lives and property. A
similar approach has shown real promise in New Mexico, which is
why similar provisions are included in H.R. 1042, which I
introduced with my colleague and cousin, Representative Tom
Udall. I regret that this amendment was not adopted.
H.R. 1904 as reported would permit the Forest Service and
the Bureau of Land Management (BLM) to implement a fuel-
reduction project without the full documentation normally
required by section 102(2) of the National Environmental Policy
Act of 1969 (NEPA).
I do not think such provisions are necessary, because NEPA
has not been a major obstacle to progress in reducing risks to
communities and water supplies. Instead, the main obstacles
have been inadequate focus on the highest-priority areas and a
failure by the relevant land-managing agencies--under both the
last Administration and this one--to do enough to develop and
implement narrowly-tailored thinning projects that can enjoy
Accordingly, I think any provisions such as those in
section 104 of H.R. 1904 should apply only for a temporary
period, after which Congress can consider whether to extend
The bill reported by the Resources Committee had such a
sunset clause, but Title I of H.R. 1904 does not. I offer an
amendment to add one to the bill; rejection of that amendment
is one reason I cannot support the bill as it now stands.
PRIORITY AREAS FOR FUEL-REDUCTION PROJECTS
I think the highest priority for fuel-reduction work needs
to be on the forest lands where accumulated fuels present the
most immediate risks to our communities--those within the
wildland/urban interface, or the ``red zone,'' as it is called
in Colorado--and to municipal water supplies. These are the
places where forest conditions present the greatest risks to
people's lives, health, and property, and so they should be
where our finite resources--time, money, and people--are
To properly focus on these areas, we have to properly
identify them. In that regard, I have no quarrel with the
provisions of H.R. 1904. By referring to lands within either an
``interface'' or ``intermix'' community, it provides an
appropriate limitation on the discretion of the agencies
without drawing an arbitrary mileage line that would not
appropriately reflect the reality that a community's exposure
to the risk of wildfire depends on terrain, forest conditions,
and other factors that can vary greatly from one place to
another and over time.
However, proper focus also requires assured priority status
for funds to carry out projects to protect communities and
their water supplies. The bill reported by the Resources
Committee last year required that at least 70% of the funds
provided for fuel-reduction purposes be used for such
projects--but no similar provision is included in H.R. 1904. I
offered an amendment to restore the provision, and failure of
the Committee to adopt that amendment is another major reason I
cannot support the bill as it now stands.
``ANALYSIS PARALYSIS,'' APPEALS, AND JUDICIAL REVIEW
As was true of legislation introduced in the 107th
Congress, H.R. 1904 clearly reflects the premise that the land-
managing agencies are laboring under procedural burdens that
unnecessarily delay work on fuel-reduction projects.
I think that premise has not been proved beyond doubt.
The Chief of the Forest Service has testified that the
agency has been slow to act to reduce the risks of catastrophic
wildfire because of ``analysis paralysis,'' meaning that the
fear of appeals or litigation has made Forest Service personnel
excessively cautious in the way they formulate and analyze
fuel-reduction (and other) projects.
The chief may be correct in that diagnosis--certainly he is
in a better position than I am to evaluate the mental states of
his subordinates. But it is important to remember that the
Chief has also testified that he does not think revision of the
environmental laws is required in order to treat this
condition--and on that point I am in full agreement.
And if fear of appeals and litigation is the cause of
``analysis paralysis,'' how realistic is that fear? Over the
last year or more, there has been considerable debate over that
point, in Congress and in the press. I think it is fair to say
that debate has been more heated than enlightening, and that
thequestion remains unresolved. I am not convinced that the
case has been fully made that the ability of people to seek
administrative or judicial review of Forest Service decisions has had
such adverse effects that stringent limitations on those processes are
Nonetheless, I think some streamlining of the
administrative appeals process would be appropriate for high-
priority fuel-reduction projects. That is why I supported
provisions on this subject that were included in the bill
reported by the Resources Committee last year and why similar
provisions are included in H.R. 1042, which I introduced with
Representative Udall of New Mexico earlier this year.
However, H.R. 1904 does not include similar provisions.
Instead, in section 105, it merely directs the Secretary of
Agriculture to develop a new administrative appeals process for
such projects. This amounts to giving the Secretary a blank
check, which I think is not the best way to proceed with regard
to so important a matter.
In addition, the bill as reported includes provisions
related to judicial review that I raise very serious questions.
The bill reported by the Resources Committee last year also
included provisions dealing with judicial review. They were
less far-reaching than those in sections 106 and 107 of H.R.
1904, but the only reason that I could support their inclusion
in last year's bill was the fact that the bill also included an
automatic stay of agency action until the completion of
administrative and judicial reviews. This is another provision
of last year's bill that is not included in H.R. 1904. I
offered an amendment to restore it, and the rejection of that
amendment is another major reason I cannot support H.R. 1904 as
In the absence of any automatic stay, I think it would be
better if sections 106 and 107 were not part of this bill. I am
very concerned by expert analyses suggesting that they would
place new and unprecedented restrictions on judicial review,
and seem designed to have the effect of unfairly and
arbitrarily shutting the court house door on our citizens,
making the federal government less accountable to the public in
the management of our public lands and national forests.
Section 106 says that ``Notwithstanding any other provision
of law'' an action in U.S. court challenging an authorized
fuel-reduction project must be filed within 15 days after an
agency decision is made public. This time limit, which counts
weekend days and holidays, supercedes any notice of intent to
file suit requirement or filing deadline otherwise applicable
to a challenge under ``any provision of law.''
This raises the prospect that through a backdoor approach,
the bill in effect is amending the Clean Water Act, the
Endangered Species Act and a host of other laws which could be
applicable to federal agency actions. For example, a Clean Air
Act-based challenge by a local government to prescribed burning
on public lands would be precluded after 15 days. It is
difficult to conceive that many local governments across the
country could consider complex federal plans and authorize and
bring lawsuits within 15 days. Private parties, of course,
would face the same practical and logistical challenges.
I am also very concerned that the limitation would force
appellants to anticipate litigation from the onset of the
environmental analysis process. The deadline essentially would
create a use-it-or-lose-it situation, wherein the appellant
must either have the appeal pre-prepared, or else scramble
madly to meet such an unrealistic deadline. Ultimately, this
subsection seems likely to create a perverse incentive to file
lawsuits against fuel reduction plans, since failing to do
socloses the court house door thereafter.
Section 106(a)'s notice requirement also raises concern. It
provides that the Secretary publish notice of final agency
action of fuels reduction project in the ``local paper of
record.'' In areas that have multiple newspapers, a troubling
situation could arise if the Secretary published notice in more
than one paper. If, for instance, two or more different local
papers published the notice on different dates, the appellant
could potentially miss the deadline because it relied on the
wrong newspaper. As amazing as this seems, this scenario is
definitely within the realm of possibility. It well might make
better sense to publish the final agency decision in the
Federal Register to ensure predictability and certainty of the
dates of publication that are beyond dispute.
Further, this part of the bill tilts excessively in favor
of the federal agencies, which already have very broad
Section 107 sets what I understand to be a new standard for
injunctive relief by mandating that courts must give deference
to any federal agency determination of the balance of harms and
the public interest. Notably, unlike the filing deadline and
other provisions included in section 106, this new standard of
deference applies not only to hazardous fuels reduction
projects, but to any agency action on federal lands that the
agency decides is ``necessary to restore a fire-adapted forest
or rangeland ecosystem.'' The boundaries of this provision are
very unclear, at best, because most forest and rangeland
ecosystems have evolved so as to adapt to fire--suggesting that
deference would be given to essentially any agency action.
I am concerned that Section 107 seems intended to allow
federal agencies to determine the public interest and might
make it excessively difficult for even misguided agency actions
to be corrected.
The section mandates that a court ``give deference to any
agency finding, based upon information in the administrative
record, that the balance of harm and the public interest in
avoiding the short-term effects of the agency action is
outweighed by the public interest in avoiding long-term harm to
the ecosystem.'' This standard--which I am told appears to be
unprecedented in any prior law--seems designed to allow a
federal agency to determine whether its own plan is in the
public interest and, in effect, to have that determination be
presumed valid by the court.
In other words, I am told there is a serious chance that
this standard would allow a federal agency to make a unilateral
decision regarding what it construes to be in the public's best
interest, put in the administrative record, and then bootstrap
that decision in federal court. I am told that this well may
violate the Constitution's separation of powers doctrine
because it seeks to intrude upon the equitable powers of the
judiciary. My understanding is that the courts currently
exercise the authority to consider the public interest or to
defer to the agency when reviewing agency action and
considering whether an injunction should be issued. I am
concerned that section 107 appears intended to prohibit judges
from exercising their judgment by directing the court to defer
to the agency's balancing of the harms.
This problem would be made worse if a standard based upon
an agency's balancing of the harms should become routine in
cases involving agency compliance with NEPA, so that even if
plaintiffs would prevail on the merits they would have had a
very difficult time getting an injunction to halt an improper
There is also a serious question about the propriety of
having the Resources and Agriculture Committees include
provisions addressing judiciary review. That is not properly
within the power of the Resources or Agriculture Committee to
determine, since under the House rules suchmatters would seem
to be within the jurisdiction of the Judiciary Committee--a concern
raised by a letter from the Ranking Member of that Committee.
OTHER SHORTCOMINGS OF REPORTED BILL
In addition to the aspects of Title I discussed above, H.R.
1904 includes a number of other problematical provisions.
For example, Title II, like a corresponding part of the
energy bill (H.R. 6) developed in the Resources Committee,
deals with use for biomass purposes of material removed from
forest lands in order to reduce fuel loads. I am a supporter of
biomass, and I think the biomass title is one of the better
parts of that energy bill. So, I do not object to its inclusion
in H.R. 1904. However, I think it should be more tightly
Title II would provide people who own or operate biomass
plants with cash grants, which could be used to buy material
removed from the forests in order to reduce fuel loads. I think
that additional subsidy should be used only to buy material
taken from the areas of highest priority--the ``wildland-urban
interface,'' or ``red zones''--that are nearest to communities,
the places where people's lives and property are most at risk.
In the Resources Committee, I offered an amendment to make that
change. I regret that it was not adopted.
TITLE IV--INSECT INFESTATIONS
As I said during the Committee's markup, I would prefer
that Title 4 be completely eliminated--for two reasons.
First, I have serious concerns about the broad scope of its
provisions and am not convinced that such sweeping legislation
Second, I fear that its inclusion will make the bill more
controversial than necessary, and so make it that much harder
to pass a sound, balanced bill to expedite needed work to
protect our communities and their water supplies.
In the Resources Committee, I offered an amendment that
would have deleted this title entirely. I regret that the
amendment was not adopted. In the Agriculture Committee, I
offered two amendments intended to make the title less
The first of these amendments would have narrowed the scope
of the Title, in several ways.
It would have expanded the list of lands that would be off-
limits to the ``applied silvicultural assessment'' projects
authorized by section 403. It would have exempted the lands the
Forest Service's own forest plans recommend for protection as
wilderness. It also would have exempted the inventoried
roadless areas that are covered by the Forest Service's
roadless conservation rule. And it would have exempted any
other lands that are now being managed in a way that preserves
Congressional options about their possible designation as
wilderness in the future. I proposed those changes because
while section 403 already exempts wilderness areas and some
wilderness-study areas, I think the bill should give the same
status to the other lands that are being managed as potential
wilderness areas, and to the roadless areas that have such high
environmental and ecological value. The amendment also would
have explicitly banned use of herbicides in municipal
watersheds. The fact that this amendment was not adopted is
another reason I amunable to support the bill as reported.
My second amendment to Title IV, which I also offered on
behalf of Representative Hill, would have deleted the provision
of section 403 that says the ``applied silvicultural
assessments'' are ``categorically excluded'' from review under
NEPA. I think that provision is one of the most troubling parts
of the entire bill.
To start with, section 404 defines these ``assessments''
very broadly. It says they can include ``any vegetative or
other treatment . . . including timber harvest, thinning,
prescribed burning, and pruning'' or any combination of those.
And, under section 403, the Forest Service or BLM could
carry out these activities on any Federal lands that the
agency--in its sole discretion--determines either has an
infestation problem or is at risk of insect infestation. That
is very broad, too--in fact, it seems practically unlimited,
since almost any land with trees is at some risk of
I am not disputing that insects can be a serious problem.
And there may be a need for drastic actions to try to prevent
insect damage, now or in the future. But I certainly see no
reason we should exempt those actions from complying with any
of the environmental laws.
If these projects are necessary and sound, they can
withstand scrutiny under NEPA. And if they are unnecessary or
not well-designed, a NEPA review can bring that out. That is
what NEPA is for, why it is on the books. The Udall-Hill
amendment would not have banned these projects. It would just
have provided for them to be reviewed in the usual way.
That does not necessarily mean there would have to be an
environmental impact statement in every case, because under
NEPA, there would be a case-by-case decision about what kind of
documentation was required. In some cases, that might mean that
an environmental assessment--an EA--would be enough. But if a
project was big enough--and, under section 403, each
``treatment'' could involve up to 1,000 acres--then a full
environmental impact statement might be necessary. And, of
course, cumulative impacts of multiple projects should not be
overlooked. That is what the law provides now. I think it
should continue to apply. That was the point of the amendment--
not to prohibit these projects, but to have them comply with
the law. The fact that this amendment was not adopted is
another major reason I cannot support H.R. 1904 as reported.
I do think it is appropriate for Congress to act to improve
the effectiveness of the way the Forest Service and Bureau of
land Management are undertaking to reduce the risks of
catastrophic wildfires to the lives, health, and property of
people living in communities near federal forest lands. That is
the purpose of the legislation--H.R. 1042--I introduced earlier
However, I think H.R. 1904 is not well-designed to
accomplish that goal. That is why I have sought to improve it.
I will continue to work for its improvement and for enactment
of more appropriate and responsible legislation.