II 109th CONGRESS 2d Session S. 2604 IN THE SENATE OF THE UNITED STATES April 7, 2006 Mr. Allard introduced the following bill; which was read twice and referred to the Committee on Energy and Natural Resources A BILL To address the forest and watershed emergency in the State of Colorado that has been exacerbated by the bark beetle infestation, to provide for the conduct of activities in the State to reduce the risk of wildfire and flooding, to promote economically healthy rural communities by reinvigorating the forest products industry in the State, to encourage the use of biomass fuels for energy, and for other purposes.

1.

Short title; table of contents

(a)

Short title

This Act may be cited as the Headwaters Protection and Restoration Act. (b)

Table of contents

The table of contents of this Act is as follows: Sec. 1. Short title; table of contents. Sec. 2. Findings. Sec. 3. Definitions. Sec. 4. Measures to address forest and watershed emergencies in Colorado. Sec. 5. Response to emergency events on public land in Colorado. Sec. 6. Availability and use of emergency event procedures. Sec. 7. Measures to improve the long-term health of the forests. Sec. 8. Assistance to communities and private landowners. Sec. 9. Reports. Sec. 10. Authorization of appropriations.

2.

Findings

Congress finds that— (1)the vast natural resources of the State of Colorado are threatened by the serious risk of catastrophic wildfire, subsequent flooding, and destruction of, or damage to, watersheds posed by the 1,500,000 acres of trees that have been killed by bark beetles and the additional 6,300,000 acres of hazardous fuels that have accumulated over the 20 years preceding the date of enactment of this Act; (2)well over 1/2 of the 14,500,000 acres of national forest land in the State is at increased risk of catastrophic wildfire; (3)the risk is greatly compounded by several years of drought and the fact that the most serious bark beetle infestations include 3 of the 4 major watersheds in the State, which poses a grave threat to communities and the mountain reservoirs that supply the drinking water of the State; (4)threats to the watersheds of the State could translate to problems in other Western States downstream; (5)Colorado could be called the Headwaters State, because the State is the origin point of major rivers flowing both east and west and the source of a vast amount of the water of the United States; (6)the Colorado Rocky Mountains create the headwaters for 4 regional watersheds that eventually supply water to approximately 19 Western States; (7)the State has already experienced major damage to municipal water reservoirs from repeated flooding and watershed damage and destruction after catastrophic wildfires that have cost hundreds of millions of dollars; (8)in addition to the risk to public health and safety, the economic health of the State is threatened by the loss of healthy green forests, which are essential to the mountain tourism industry of the State; (9)the Federal agencies that manage the majority of the affected land need to adopt an accelerated pace to reduce the public health and safety risk as soon as possible; (10)additional funds are necessary to accomplish the needed work, but merely increasing funding would not address the larger problem facing the State, which is the lack of necessary forest product industry to adequately handle the amount and variety of material requiring removal from the forests; (11)the long years of reduced harvesting and thinning of forests in the State have led to a precipitous decline in forest businesses to the extent that there are very few forest businesses remaining in the State that have the infrastructure and ability to process the varied forest products that result when harvesting does occur; (12)although the State has an ample potential supply of wood and a high demand for sawn wood products, the State actually imports more than 90 percent of its timber and wood products; (13)the reliance on imported timber and wood products is directly related to the lack of a consistent supply of raw material from national forests, losses in mill locations, and the decline in processing facilities, especially for post and pole size material, in the State; (14)the absence of an adequate market for small diameter materials and wood chips is a serious problem as the need to thin forests of hazardous fuel grows across the State; (15)steady, judicious, and effective forest management over time is a much better and more cost effective strategy than dealing with the management of catastrophic events under emergency circumstances; (16)in the few years preceding the date of enactment of this Act, 3 major Colorado fires cost the Federal Government $125,000,000 for suppression and emergency restoration actions, not including the value of destroyed timber, habitat loss, and devastated landscapes and destruction of private property; (17)additional benefits of sound forestry management include— (A)reducing the magnitude of the crisis during the next bark beetle epidemic; (B)creating a market sufficient to provide jobs in rural areas; and (C)reducing the amount of wood imported into the State; and (18)to address the immediate crisis and the longer-term need for more effective forest management in the State, it is necessary to— (A)provide financial assistance; (B)assure a sustained harvest of forest products; (C)establish a self-sustaining Forest Health Fund for the State; (D)reestablish adequate forest processing infrastructure in the State; (E)develop a diversified forest products market and encourage woody biomass industry to supply a reliable source of renewable energy; and (F)encourage the woody biomass industry to supply a reliable source of renewable energy by removing a requirement for a full permit review that is a disincentive for power companies that may want to switch to cogeneration using woody biomass.

3.

Definitions

In this Act: (1)

At-risk community

The term at-risk community has the meaning given the term in section 101 of the Healthy Forests Restoration Act of 2003 (16 U.S.C. 6511). (2)

Emergency event

The term emergency event means any drought, insect or disease outbreak, natural disaster (such as a landslide, mudslide, tornado, windstorm, snow or ice storm, rain storm, high water, or wind-driven water), or any fire, flood, or explosion, regardless of cause, that the Secretary concerned determines has caused or will cause damage of significant severity and magnitude to Federal land or adjacent non-Federal land. (3)

Emergency event procedures

The term emergency event procedures means any procedures that as, determined by the Secretary concerned under section 6, may be employed to facilitate the response to emergency events on Federal land or adjacent non-Federal land in the State during the period of fiscal years 2007 through 2011. (4)

Fund

The term Fund means the Colorado Forest Health Fund established by section 7(c)(1). (5)

Indian tribe

The term Indian tribe has the meaning given the term in section 4 of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450b). (6)

Municipal water supply system

The term municipal water supply system has the meaning given the term in section 101 of the Healthy Forests Restoration Act of 2003 (16 U.S.C. 6511). (7)

Secretary concerned

The term Secretary concerned means— (A)with respect to National Forest System land, the Secretary of Agriculture— (i)acting through the Forest Supervisor of the applicable unit of the National Forest System for the purposes of sections 5 and 6; and (ii)acting through the Chief of the Forest Service for the purposes of any other section; and (B)with respect to land managed by the Bureau of Land Management (including land held for the benefit of an Indian tribe), the National Park Service, or the United States Fish and Wildlife Service, the Secretary of the Interior. (8)

Small business concern

The term small business concern has the meaning given the term in section 3 of the Small Business Act (15 U.S.C. 632). (9)

State

The term State means the State of Colorado. (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).

4.

Measures to address forest and watershed emergencies in Colorado

(a)

Emergency event procedures

During the period of fiscal years 2007 through 2011, in response to watershed and forest emergencies, the Secretary concerned shall consider the use of the emergency event procedures for the State in accordance with sections 5 and 6. (b)

Hazardous fuel reduction and bark beetle response projects

The Secretary concerned may carry out projects in the State to— (1)reduce hazardous fuels; or (2)prevent the spread of bark beetles to adjacent trees that are in danger of being infested.

5.

Response to emergency events on public land in Colorado

(a)

Emergency event proposals

With respect to each emergency event, the Secretary concerned may— (1)prepare an emergency event proposal that contains proposed projects to respond to the emergency event; or (2)receive and consider a similarly-prepared proposal from— (A)the Governor of the State; (B)the State Forester; (C)a Water Conservation District; or (D)an at-risk community. (b)

Emergency event evaluations

(1)

In general

The Secretary concerned may conduct an emergency event evaluation in response to— (A)an emergency event that— (i)may require emergency event procedures; and (ii)affects— (I)a municipal water supply system; (II)a wildland-urban interface; or (III)other public or private property that the Secretary concerned determines has caused or will cause damage of significant severity and magnitude to Federal land or adjacent non-Federal land; or (B)a request for an emergency event evaluation for an affected area described in subparagraph (A)(ii) from 1 of the entities described in subsection (a)(2)(B). (2)

Notification

Concurrently, upon initiating the emergency event evaluation under paragraph (1), the Secretary shall notify— (A)affected public agencies; (B)affected local governments and entities; (C)affected communities; (D)affected water conservation districts; and (E)other affected parties. (c)

Determination

(1)

In general

For each emergency event evaluation conducted under subsection (b)(1), the Secretary concerned shall make a determination of whether a project proposed under subsection (a) should be developed and carried out using emergency event procedures. (2)

Considerations

In making a determination under paragraph (1), the Secretary concerned shall consider, at a minimum, the following: (A)The necessity of promptly responding to the emergency event. (B)The threat to public health and safety. (C)The threat to municipal water supplies. (D)The likelihood of substantial loss of adjacent private and public property or other substantial economic losses. (3)

Priority

In making a determination under paragraph (1), the Secretary concerned shall give priority to projects in or adjacent to an area that is covered by a completed community wildfire protection plan. (4)

Deadline

Not later than 30 days after the date on which the Secretary concerned determines that an emergency event evaluation should be conducted, the Secretary concerned shall— (A)complete the emergency event evaluation; and (B)issue a determination. (5)

Notification

On issuance of a determination under paragraph (4)(B), the Secretary concerned shall simultaneously provide notice of the determination to— (A)affected public agencies; (B)affected local governments and entities; (C)affected communities; (D)affected water conservation districts; and (E)other affected parties. (d)

Relation to Appeals Reform Act

Section 105 of the Healthy Forests Restoration Act of 2003 (16 U.S.C. 6515) is amended by adding at the end the following: (d)

Relation to Appeals Reform

Nothing in section 322 of the Department of the Interior and Related Agencies Appropriations Act, 1999 (Public Law 102–381; 16 U.S.C. 1612 note) shall be construed to require administrative review procedures different from, or in addition to, the procedures established by regulations issued pursuant to this section and section 6 of the Headwaters Protection and Restoration Act for administrative review of an authorized emergency event project carried out in the State of Colorado during fiscal years 2007 through 2011 in accordance with the Headwaters Protection and Restoration Act. .

6.

Availability and use of emergency event procedures

(a)

Requirements

(1)

In general

If the Secretary concerned determines under section 5(c) to use emergency event procedures for a project, the Secretary shall develop and carry out the project in accordance with this section. (2)

Applicable law

Except as otherwise provided in this Act, the Secretary concerned shall comply with the National Environmental Policy Act of 1969 (42 U.S.C. 4331 et seq.), any regulations promulgated to carry out that Act, and other applicable laws in designing and conducting emergency event projects. (3)

Limited consideration of alternatives

If the Secretary concerned determines under section 5(c)(1) to use emergency event procedures to conduct a project proposed under section 5(a), the Secretary concerned is not required to study, develop, or analyze any alternatives other than the proposed agency action and the alternative of no action in designing the project. (b)

Required consultation

(1)

Compliance with endangered species act of 1973

(A)

In general

Except as otherwise provided in this Act, the Secretary concerned shall comply with section 7 of the Endangered Species Act of 1973 (16 U.S.C. 1536) in carrying out this Act. (B)

Deadline for completion

If the consultation required under this paragraph is not completed by the date on which the decision document is issued under subsection (c), the applicable biological assessment from the land management agency shall be considered to be sufficient for the purposes of section 7 of the Endangered Species Act of 1973 (16 U.S.C. 1536). (2)

Other required consultation

(A)

In general

Any consultation required under any other laws, such as the National Historic Preservation Act (16 U.S.C. 470 et seq.), may proceed simultaneously with the design of an emergency event project, or portion of an emergency event project, for which emergency event procedures under this section are used. (B)

Incorporation

To the extent feasible, practicable, and consistent with the response objectives of an emergency event project, the results of any consultation required under subparagraph (A) shall be immediately incorporated into the emergency event project. (c)

Issuance of decision document

Not later than 90 days after the date on which the Secretary concerned makes a determination under section 5(c)(1) to develop and carry out an emergency event project, or portion of an emergency event project, using emergency event procedures, the Secretary concerned shall— (1)complete the emergency event procedures for that emergency event project, or a portion of the emergency event project, under this section; and (2)issue a concise decision document that contains the rationale for the agency decision. (d)

Implementation

The Secretary concerned shall implement the emergency event procedures as soon as practicable after the issuance of the decision document under subsection (c), subject only to the availability of funds for the emergency event procedures. (e)

Limitations on treatments

For the purposes of responding to 1 or more of the events described in section 5(b), treatment of stands carried out as part of a project for which emergency event procedures are authorized under this section shall be limited to— (1)reducing hazardous fuels; or (2)preventing the spread of bark beetles to adjacent trees that are in danger of being infested.

7.

Measures to improve the long-term health of the forests

(a)

Program

(1)

In general

The Secretary concerned, in cooperation with the Colorado State Forester, shall carry out a program in the State to— (A)ensure the long-term health of forests in the State; and (B)reduce the risk of catastrophic fire, flooding, and watershed destruction. (2)

Requirements

Under the program, the Secretary concerned, in cooperation with the Colorado State Forester and other applicable State agencies, shall, at a minimum— (A)assess priorities in the State for use of 10-year stewardship contracts to initiate revitalization of the forest product industry; and (B)otherwise cooperate with the Colorado State Forest Service and the forest products industry in Colorado to assist in the development of new markets and marketing of the forest products industry. (b)

Financial assistance for stewardship projects and small businesses

The Secretary concerned shall— (1)consistently use authority under the Healthy Forests Restoration Act of 2003 (16 U.S.C. 6501 et seq.), stewardship contracts, and other long-term contracts to ensure a sustained supply of raw wood materials in the State; (2)provide financial assistance for the upfront costs of long-term stewardship projects in areas in which timber values do not provide for recovery costs; and (3)provide grants and low-cost loans to eligible small business concerns in the forest product industry in the State for the costs of start-up activities, converting equipment, and modifying facilities to enable the small business concerns to use wood from forests in the State. (c)

Forest health fund

(1)

Establishment

There is established in the Treasury of the United States a fund, to be known as the Colorado Forest Health Fund, consisting of— (A)such amounts as are appropriated to the Fund under paragraph (2) or any other law; and (B)any interest earned on investment of amounts in the Fund under paragraph (3). (2)

Transfers to fund

Notwithstanding any other provision of law, beginning in fiscal year 2007 and each fiscal year thereafter, there are appropriated to the Fund an amount equal to 50 percent of the proceeds from the Forest Service sales of timber in the State. (3)

Expenditures from fund

On request by the Secretary of Agriculture, the Secretary of the Treasury shall transfer from the Fund to the Secretary of Agriculture such amounts as the Secretary of Agriculture determines are necessary to carry out measures to improve forest health and reduce hazardous fuels in the State. (4)

Investment of amounts

(A)

In general

The Secretary of the Treasury shall invest such portion of the Fund as is not, in the judgment of the Secretary of the Treasury, required to meet current withdrawals. (B)

Interest-bearing obligations

Investments may be made only in interest-bearing obligations of the United States. (C)

Acquisition of obligations

For the purpose of investments under subparagraph (A), obligations may be acquired— (i)on original issue at the issue price; or (ii)by purchase of outstanding obligations at the market price. (D)

Sale of obligations

Any obligation acquired by the Fund may be sold by the Secretary of the Treasury at the market price. (E)

Credits to fund

The interest on, and the proceeds from the sale or redemption of, any obligations held in the Fund shall be credited to and form a part of the Fund. (5)

Transfers of amounts

(A)

In general

The amounts required to be transferred to the Fund under this section shall be transferred at least monthly from the general fund of the Treasury to the Fund on the basis of estimates made by the Secretary of the Treasury. (B)

Adjustments

Proper adjustment shall be made in amounts subsequently transferred, to the extent prior estimates were in excess of or less than, the amounts required to be transferred. (d)

Research

To improve the long-term health of forests in the State, the Secretary of Agriculture shall— (1)provide financial assistance in the form of grants to— (A)the Colorado Wood Program of Colorado State University for the conduct of research and development and marketing of forest products; (B)the Forest Restoration Institute at Colorado State University, including assistance for the conduct of research in higher elevation forests; and (C)any other entities that the Secretary of Agriculture determines to be appropriate; and (2)acting through the Rocky Mountain Research Station, collaborate with the Forest Restoration Institute at Colorado State University in the conduct of research on and the development and transfer of broader landscape treatment strategies and ways to integrate best science with community needs. (e)

Air permit revision exemption

Section 504 of the Clean Air Act (42 U.S.C. 7661c) is amended by adding at the end the following: (g)

Revisions

Notwithstanding the regulations promulgated under section 502(b)(10), if a permittee seeks to use renewable forest biomass to supplement the energy sources authorized under the permit— (1)revision and review of the entire permit shall not be required; and (2)any review and revision of the permit shall be limited to consideration of the new use. . (f)

Permanent authority for Federal and State cooperative restoration and protection in Colorado

Section 331 of the Department of the Interior and Related Agencies Appropriations Act, 2001 (114 Stat. 996; 118 Stat. 3102) is amended by striking subsection (e).

8.

Assistance to communities and private landowners

(a)

Cost-share grant program for private landowners

(1)

In general

The Secretary of Agriculture shall provide to the Colorado State Forest Service financial assistance under the Community and Private Land Fire Assistance Program established under section 10A of the Cooperative Forestry Assistance Act of 1978 (16 U.S.C. 2106c) to establish a grant program in accordance with paragraph (2). (2)

Requirements

As a condition of receiving funds under paragraph (1), the Colorado State Forest Service shall establish a grant program under which any private landowner in the State may apply to the Colorado State Forest Service for a grant on a cost-share basis to improve forest health conditions on the land of the private landowner, including conditions relating to insects, diseases, and hazardous fuels. (3)

Cost share requirement

A private landowner applying for a grant under paragraph (2) shall agree to provide 50 percent of the cost of the grant. (4)

Prioritization

Priority shall be given to grant applications from private landowners in areas that have completed community wildfire protection plans. (b)

Grants for the Colorado fuels for schools

The Secretary of Agriculture shall provide grants to the State for the Colorado Fuels for Schools program under section 210 of the Energy Policy Act of 2005 (42 U.S.C. 15855)— (1)to conduct studies at eligible schools in rural communities to determine the feasibility of installing and operating biomass boilers at the schools and other public buildings; and (2)to assist eligible schools and other public buildings in rural communities in the installation and operation of biomass boilers.

9.

Reports

The Secretary concerned shall submit to Congress a report on the implementation of sections 4(c) and 6 not later than November 30, 2007, May 31, 2008, and each November 30 and May 31 thereafter through 2011.

10.

Authorization of appropriations

There is authorized to be appropriated to carry out this Act for the period of fiscal years 2007 through 2011, $227,000,000, of which— (1)$150,000,000 shall be made available to the Secretary of Agriculture to carry out sections 4(b) and 6; (2)$12,000,000 shall be made available to the Secretary of the Interior to carry out sections 4(b) and 6; (3)$2,500,000 shall be made available to the Secretary of Agriculture to carry out section 5; (4)$500,000 shall be made available to the Secretary of the Interior to carry out section 5; (5)$2,000,000 shall be made available for the conduct of assessments under section 7(a)(2)(A); (6)$10,000,000 shall be made available for assistance under section 7(b)(2); (7)$5,000,000 shall be made available for grants under section 7(b)(3); (8)$4,000,000 shall be made available for low-cost loans under section 7(b)(3); (9)$5,000,000 shall be made available to provide assistance under section 7(d)(1)(A); (10)$3,000,000 shall be made available to provide assistance to the Forest Restoration Institute at Colorado State University under section 7(d)(1)(B); (11)$2,000,000 shall be made available to provide grants under section 7(d)(1)(C); (12)$3,000,000 shall be made available to carry out section 7(d)(2); (13)$15,000,000 shall be made available for assistance under section 8(a); and (14)$10,000,000 shall be made available for grants under section 8(b).