II Calendar No. 287 112th CONGRESS 2d Session S. 1344 [Report No. 112–126] IN THE SENATE OF THE UNITED STATES July 11, 2011 Mr. Kyl (for himself and Mr. McCain) introduced the following bill; which was read twice and referred to the Committee on Energy and Natural Resources January 13, 2012 Reported under authority of the order of the Senate of December 17, 2011, by Mr. Bingaman, with an amendment Strike out all after the enacting clause and insert the part printed in italic A BILL To direct the Secretary of Agriculture to take immediate action to recover ecologically and economically from a catastrophic wildfire in the State of Arizona, and for other purposes.
1.
Short title
This Act may be cited as the Arizona Wallow Fire Recovery and Monitoring Act.
2.
Purpose
The purpose of this Act is to direct the Secretary of Agriculture to take certain actions— (1)to rehabilitate and restore the Wallow Fire Area; (2)to recover material that is fire-damaged, but still merchantable, from the Wallow Fire Area before the material loses economic value; (3)to create defensible space around communities to effectively and safely fight future fires in the vicinity of the Wallow Fire Area; (4)to monitor the environmental and economic effects of the removal of fire-damaged trees from the Wallow Fire Area; and (5)to provide a mechanism to offset the costs of forest restoration in the Wallow Fire Area.
3.
Definitions
In this Act: (1)
Burned area emergency response
The term burned area emergency response means the process used by the Secretary to plan and implement emergency stabilization actions on Federal land in response to an immediate post-fire condition— (A)to minimize threats to life or property; or (B)to stabilize and prevent unacceptable degradation to natural and cultural resources resulting from the effects of the catastrophic event. (2)
Community Protection Management Area
The term Community Protection Management Area means— (A)the wildland-urban interface in a community wildfire protection plan; (B)human development areas having special significance, including critical communication sites, high voltage transmission lines, developed recreation sites, and other structures that, if destroyed by fire, would result in hardship to communities; and (C)the fuels adjacent to areas described in subparagraph (B). (3)
Community wildfire protection plan
The term community wildfire protection plan has the meaning given the term in section 101 of the Healthy Forest Restoration Act of 2003 (16 U.S.C. 6511). (4)
Hazard tree and commercial timber evaluation
The term hazard tree and commercial timber evaluation means an evaluation of the hazard trees and fire-damaged, dead, and dying timber resources on the National Forest System land in the Wallow Fire Area conducted in accordance with section 4. (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)
National Forest System
The term National Forest System has the meaning given the term in section 11(a) of the Forest and Rangeland Renewable Resources Planning Act of 1974 (16 U.S.C. 1609(a)). (7)
Secretary
The term Secretary means the Secretary of Agriculture. (8)
Timber removal project
The term timber removal project means a timber removal project for the Wallow Fire Area identified under a hazard tree and commercial timber evaluation. (9)
Wallow Fire
The term Wallow Fire means the fire that originated in the Bear Wallow Wilderness on May 29, 2011. (10)
Wallow Fire Area
The term Wallow Fire Area means the approximately 538,000-acre fire perimeter in the State of Arizona, as depicted on the map entitled Wallow Fire Az-ASF-110152 Progression Map and dated June 28, 2011.
4.
hazard tree and commercial timber evaluation
(a)
In general
The Secretary shall conduct a hazard tree and commercial timber evaluation that identifies timber resources appropriate for removal within the Wallow Fire Area not later than the date that is the earlier of— (1)the date that is 30 days after the completion of the burned area emergency response for the Wallow Fire Area; or (2)the date that is 45 days after the date of containment of the Wallow Fire. (b)
Report required
In conducting a hazard tree and commercial timber evaluation under subsection (a), the Secretary shall prepare a report that includes— (1)a description of— (A)the forest conditions in the burned areas of the Wallow Fire Area; and (B)the short- and long-term risks the conditions pose to forest users, communities, private property, and remaining resources; (2)a map of areas for potential hazard tree removal, areas for potential fire-damaged commercial tree removal, and areas for potential elimination from harvest consideration, including a delineation of the Community Protection Management Area for the Wallow Fire Area; (3)a map of the burn intensity within the Wallow Fire Area; (4)a preliminary determination of— (A)the anticipated receipts to be derived from the hazard and fire-damaged commercial timber identified for removal in the Wallow Fire Area; (B)the estimated costs to the Secretary associated with the removal of the timber; and (C)to the maximum extent practicable, receipts likely to be lost if action is not taken in a timely manner; (5)a description of 1 or more proposals for timber removal projects providing for the removal of hazard trees and fire-damaged, dead, and dying timber resources in the Wallow Fire Area; and (6)a description of the desired outcomes of rehabilitation and tree removal in burned portions of the Wallow Fire Area. (c)
Excluded areas
In identifying areas for tree removal under subsection (a), the Secretary shall exclude high fire-severity burned areas on steep slopes, slopes with an incline greater than 40 percent, riparian areas, and fragile erosive sites, unless tree removal in those areas is necessary to address public health and safety concerns. (d)
Public involvement
The Secretary shall facilitate the meaningful involvement of State and local officials, Indian tribes, institutions of higher education, and other interested persons during the preparation of the hazard tree and commercial timber evaluation conducted under this section. (e)
Deadline for completion
Not later than 45 days after the date on which the Secretary commences the hazard tree and commercial timber evaluation, the Secretary shall complete the hazard tree and commercial timber evaluation.
5.
Timber removal projects
(a)
Timber removal project requirements
(1)
In general
The Secretary shall limit the removal of trees under a timber removal project under this Act to hazard trees and trees that are already down, dead, or severely root-sprung, such that mortality is highly probable. (2)
Considerations
In selecting tree removal techniques for a timber removal project under this Act, the Secretary shall take into account the degree of ground disturbances, soil types, soil saturation, worker safety, threatened and endangered species, aquatic systems, and other ecological values associated with the site of the timber removal project. (3)
Monitoring requirements
The Secretary shall use an effectiveness monitoring framework to assess the ecological and economic effects of tree removal projects carried out under this Act with respect to accomplishing desired outcomes identified in the hazard tree and commercial timber evaluation. (4)
Limitation
Nothing in this Act authorizes new permanent road construction for timber removal. (5)
Congressional intent
It is the intent of Congress that all timber removal projects carried out under this Act be completed by the date that is not later than 18 months after the date of enactment of this Act. (b)
Environmental compliance
(1)
In general
Except as otherwise provided in this Act, the Secretary shall comply with the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and other applicable laws in planning and conducting timber removal projects. (2)
NEPA requirements
(A)
In general
In the case of a timber removal project to be conducted in a Community Protection Management Area under this Act, the Secretary shall prepare an environmental assessment for the proposed agency action under section 102(2) of the National Environmental Policy Act of 1969 (42 U.S.C. 4332(2)). (B)
Alternatives
Nothing in this subsection requires the Secretary to study, develop, or describe any alternative to the proposed agency action in the environmental assessment conducted under subparagraph (A). (C)
Public participation
The Secretary shall provide an opportunity for public participation during the preparation of the environmental assessment under subparagraph (A), in accordance with existing protocols. (3)
Administrative and judicial review
Timber removal projects carried out under this Act are subject to the special administrative process and judicial review process under sections 105 and 106 of the Healthy Forests Restoration Act of 2003 (16 U.S.C. 6515, 6516). (4)
Use of receipts
Amounts collected by the Secretary from a timber removal project carried out under this Act shall be available for expenditure by the Secretary without further appropriation for forest restoration treatments on the Apache-Sitgreaves National Forest in the State of Arizona.
1.
Short title
This Act may be cited as the Arizona Wallow Fire Recovery and Monitoring Act.
2.
Definitions
In this Act: (1)
Community protection management area
The term community protection management area means— (A)the wildland-urban interface in a community wildfire protection plan; and (B)human development areas having special significance, including critical communication sites, high voltage transmission lines, developed recreation sites, and other structures that, if destroyed by fire, would result in hardship to communities. (2)
Community wildfire protection plan
The term community wildfire protection plan has the meaning given the term in section 101 of the Healthy Forest Restoration Act of 2003 (16 U.S.C. 6511). (3)
Evaluation
The term evaluation means the evaluation required by section 3(a). (4)
Secretary
The term Secretary means the Secretary of Agriculture. (5)
Wallow fire area
The term Wallow Fire Area means the land within the perimeter of the Wallow Fire, as depicted on the map entitled Wallow Fire AZ-ASF-110152 Progression Map and dated June 28, 2011.
3.
Hazard tree and commercial timber evaluation
(a)
In general
The Secretary shall conduct an evaluation of the Wallow Fire Area in accordance with this section. (b)
Timeline
To ensure the timely completion of the evaluation, the Secretary shall— (1)not later than 30 days after the date of enactment of this Act, commence the evaluation; and (2)not later than 75 days after the date of enactment of this Act, complete the evaluation. (c)
Contents
The evaluation shall include— (1)a map of the burn intensity within the Wallow Fire Area; (2)a description of— (A)the forest conditions in the burned areas of the Wallow Fire Area; (B)the short- and long-term risks that the conditions in the Wallow Fire Area may pose to forest users, communities, private property, and natural resources; and (C)the actions undertaken by the Forest Service to reduce the risks described in subparagraph (B); (3)a map and description of areas for potential hazard tree removal and areas for potential fire-damaged commercial tree removal in the Wallow Fire Area, including a delineation of the community protection management area within the Wallow Fire Area; (4)a preliminary estimate of— (A)the costs and receipts to be derived from the hazard tree and fire-damaged commercial timber identified for potential removal in the Wallow Fire Area; and (B)to the maximum extent practicable, the receipts likely to be lost if action is not taken in a timely manner; and (5)a description of the desired outcomes of rehabilitation and tree removal in burned portions of the Wallow Fire Area. (d)
Excluded areas
In identifying areas for potential tree removal under subsection (c)(3), the Secretary shall exclude high fire-severity burned areas on steep slopes, slopes with an incline greater than 40 percent, riparian areas, and fragile erosive sites, unless tree removal in those areas is necessary to address concerns relating to public health or safety.
4.
Timber removal projects
(a)
Identification
Not later than 90 days after the date of enactment of this Act, the Secretary shall identify 1 or more projects to reduce the risks described in section 3(c)(2)(B) by removing hazard trees and fire-damaged, dead, and dying timber resources in the Wallow Fire Area. (b)
Congressional intent
It is the intent of Congress that all projects identified under subsection (a) be completed by September 30, 2013. (c)
Considerations
(1)
Evaluation
In identifying projects under subsection (a), the Secretary shall consider the results of the evaluation. (2)
Tree removal techniques
In selecting tree removal techniques for a project identified under subsection (a), the Secretary shall take into account the degree of ground disturbances, soil types, soil saturation, worker safety, threatened or endangered species, aquatic systems, and other ecological values associated with the site of the project. (d)
Monitoring
The Secretary shall use an effectiveness monitoring framework to assess the ecological and economic effects of each project that is identified and carried out under this section with respect to accomplishing the desired outcomes identified in the evaluation. (e)
Limitations
In carrying out a project identified under subsection (a), the Secretary— (1)shall focus the removal of trees under the project to hazard trees and trees that are already down, dead, or so severely root-sprung that mortality is highly probable; and (2)shall not construct any permanent road (f)
Administrative review
(1)
In general
In lieu of an administrative appeal under section 322 of the Department of the Interior and Related Agencies Appropriations Act, 1993 (16 U.S.C. 1612 note; Public Law 102–381), the Secretary may subject to administrative review under part 218 of title 36, Code of Federal Regulations (or successor regulations), any collaboratively-developed project to remove hazard trees and fire-damaged, dead, and dying timber resources in the Wallow Fire Area— (A)that is identified under subsection (a); and (B)for which a decision notice or record of decision has been issued by September 30, 2012. (2)
Authorized projects
A project identified under subsection (a) shall be considered an authorized hazardous fuel reduction project for purposes of part 218 of title 36, Code of Federal Regulations (or successor regulations).
January 13, 2012 Reported with an amendment