[House Hearing, 118 Congress]
[From the U.S. Government Publishing Office]
H.R. 200, ``FOREST INFORMATION REFORM (FIR) ACT''; H.R. 1473,
``TARGETING AND OFFSETTING EXISTING ILLEGAL CONTAMINANTS ACT''; H.R.
1567, ``ACCURATELY COUNTING RISK ELIMINATION SOLUTIONS (ACRES) ACT'';
AND H.R. 1586, ``FOREST PROTECTION AND WILDLAND FIREFIGHTER SAFETY ACT
OF 2023''
=======================================================================
LEGISLATIVE HEARING
BEFORE THE
SUBCOMMITTEE ON FEDERAL LANDS
OF THE
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTEENTH CONGRESS
FIRST SESSION
__________
Thursday, March 23, 2023
__________
Serial No. 118-9
__________
Printed for the use of the Committee on Natural Resources
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.govinfo.gov
or
Committee address: http://naturalresources.house.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
51-679 PDF WASHINGTON : 2023
COMMITTEE ON NATURAL RESOURCES
BRUCE WESTERMAN, AR, Chairman
DOUG LAMBORN, CO, Vice Chairman
RAUL M. GRIJALVA, AZ, Ranking Member
Doug Lamborn, CO Grace F. Napolitano, CA
Robert J. Wittman, VA Gregorio Kilili Camacho Sablan,
Tom McClintock, CA CNMI
Paul Gosar, AZ Jared Huffman, CA
Garret Graves, LA Ruben Gallego, AZ
Aumua Amata C. Radewagen, AS Joe Neguse, CO
Doug LaMalfa, CA Mike Levin, CA
Daniel Webster, FL Katie Porter, CA
Jenniffer Gonzalez-Colon, PR Teresa Leger Fernandez, NM
Russ Fulcher, ID Melanie A. Stansbury, NM
Pete Stauber, MN Mary Sattler Peltola, AK
John R. Curtis, UT Alexandria Ocasio-Cortez, NY
Tom Tiffany, WI Kevin Mullin, CA
Jerry Carl, AL Val T. Hoyle, OR
Matt Rosendale, MT Sydney Kamlager-Dove, CA
Lauren Boebert, CO Seth Magaziner, RI
Cliff Bentz, OR Nydia M. Velazquez, NY
Jen Kiggans, VA Ed Case, HI
Jim Moylan, GU Debbie Dingell, MI
Wesley P. Hunt, TX Susie Lee, NV
Mike Collins, GA
Anna Paulina Luna, FL
John Duarte, CA
Harriet M. Hageman, WY
Vivian Moeglein, Staff Director
Tom Connally, Chief Counsel
Lora Snyder, Democratic Staff Director
http://naturalresources.house.gov
------
SUBCOMMITTEE ON FEDERAL LANDS
TOM TIFFANY, WI, Chairman
JOHN R. CURTIS, UT, Vice Chair
JOE NEGUSE, CO, Ranking Member
Doug Lamborn, CO Katie Porter, CA
Tom McClintock, CA Sydney Kamlager-Dove, CA
Russ Fulcher, ID Gregorio Kilili Camacho Sablan,
Pete Stauber, MN CNMI
John R. Curtis, UT Mike Levin, CA
Cliff Bentz, OR Teresa Leger Fernandez, NM
Jen Kiggans, VA Mary Sattler Peltola, AK
Jim Moylan, GU Raul M. Grijalva, AZ, ex officio
Bruce Westerman, AR, ex officio
------
CONTENTS
----------
Page
Hearing held on Thursday, March 23, 2023......................... 1
Statement of Members:
Tiffany, Hon. Tom, a Representative in Congress from the
State of Wisconsin......................................... 2
Kamlager-Dove, Hon. Sydney, a Representative in Congress from
the State of California.................................... 4
Westerman, Hon. Bruce, a Representative in Congress from the
State of Arkansas.......................................... 5
LaMalfa, Hon. Doug, a Representative in Congress from the
State of California........................................ 7
Prepared statement of.................................... 42
Rosendale, Hon. Matt, a Representative in Congress from the
State of Montana........................................... 43
Peters, Hon. Scott, a Representative in Congress from the
State of California........................................ 46
Prepared statement of.................................... 48
Statement of Witnesses:
French, Chris, Deputy Chief for National Forest Systems, U.S.
Forest Service, Washington, DC............................. 49
Prepared statement of.................................... 51
Questions submitted for the record....................... 55
Bronson, Ryan, Director of Government Affairs, Rocky Mountain
Elk Foundation, St. Paul, Minnesota........................ 57
Prepared statement of.................................... 59
Ellis, Steve, Chairman, Board of Directors, National
Association of Forest Service Retirees, Beaver Creek,
Oregon..................................................... 60
Prepared statement of.................................... 62
Supplemental testimony................................... 64
Brown, Susan Jane M., Senior Staff Attorney, Western
Environmental Law Center, Eugene, Oregon................... 66
Prepared statement of.................................... 68
Questions submitted for the record....................... 73
Wood, Jonathan, Vice President of Law and Policy, The
Property and Environmental Research Center, Bozeman,
Montana.................................................... 78
Prepared statement of.................................... 80
Additional Materials Submitted for the Record:
Submissions for the Record by Representative Tiffany
National Association of Forest Service Retirees, Letter
to Secretary Vilsack on Fire Retardant Lawsuit dated
March 7, 2023.......................................... 107
Public Lands Foundation, Letter of support dated March
17, 2023............................................... 107
33 Sportsmen Groups, Letter of support for a Bipartisan
``Cottonwood Fix'' dated March 20, 2023................ 45
Western Governors Association, Letter with comments on
DOI-USDA ESA Consultation dated April 28, 2022......... 109
38 Sportsmen Groups, Letter of support to Senators
Manchin and Barrasso for Cottonwood fix dated July 20,
2022................................................... 110
33 Sportsmen Groups, Letter of support to Senators
Manchin and Barrasso for Cottonwood fix dated October
20, 2021............................................... 112
Submissions for the Record by Representative LaMalfa
Letters of Support for H.R. 1586
Airspray Airtankers, Paul Lane........................... 9
Placer County Board of Supervisors, Jim Holmes........... 9
City of Oroville, David Pittman.......................... 10
Crane Mills, Drew Crane.................................. 11
International Wildfire Consulting Group, Dan Reese....... 11
Federal Forest Resource Coalition........................ 12
Commercial Lumber and Pallet Company, Kathleen Dietrich.. 14
Registered Forester, Danielle Lindler.................... 14
Supporter, Arne Hultgren................................. 15
Orange County Fire Authority, Brian Fennessy............. 16
California Special Districts Association, Kyle Packham... 16
Sierra County Board of Supervisors, Sharon Dryden........ 17
National Alliance of Forest Owners....................... 18
City of Chico--Office of the Mayor, Andrew Coolidge...... 18
California Forestry Association (Calforests), Matt Dias.. 19
Tehama County Board of Supervisors, Bill Moule........... 19
City of Redding, Michael Dacquisto....................... 20
Jefferson Resource Company, Tina Stewart................. 21
Supporter, Tim Seeley.................................... 21
Butte County Fire Safe Council, Darrel Wilson............ 22
Western Shasta Resource Conservation District, Maureen
Teubert................................................ 23
American Motorcyclists Association--District 36, Dan
Amador................................................. 23
Forest Landowners Association, Scott Jones............... 24
Overwatch Aero LLC, Jordan Hahn.......................... 25
National Wildfire Suppression Association, Deborah Miley. 25
Lake Madrone Water District, Jess Vickery................ 26
City of Biggs, Josh Cook................................. 27
City of Anderson, Mike Gallagher......................... 27
Lassen County Board of Supervisors, Gary Bridges......... 28
Shasta County Fire Safe Council, Pamela Bates............ 29
United Aerial Firefighters Association................... 29
Analytical Moose, Rachael Brady.......................... 30
National Association of State Foresters, Kasey KC........ 30
National Association of Counties, Matthew Chase.......... 31
Yankee Hill Fire Safe Council, Brenda Rightmyer.......... 32
Sacramento Metropolitan Fire District, Dan Haverty....... 33
California Farm Bureau, Jamie Johansson.................. 34
California Woman for Agriculture, Sharron Zoller......... 35
American Agri-Women, Heather Hampton-Knodle.............. 35
Yuba Water Agency, Willie Whittlesey..................... 36
International Association of Fire Chiefs & National
Special Districts Coalition, Donna Black and Neil
McCormick.............................................. 37
Berry Creek Fire Safe Council, Denise Bethune............ 38
City of Shasta Lake, Jessaca Lugo........................ 38
Placer County Water Agency, Anthony Firenzi.............. 39
Placer County District 4 Board of Supervisors, Suzanne
Jones.................................................. 39
Glenn County Board of Supervisors, Grant Carmon.......... 40
North State Planning & Development Collective, Jason
Schwenkler............................................. 41
Butte County Board of Supervisors, Tod Kimmelshue........ 41
Submissions for the Record by Representative Rosendale
Letter from Senator Steve Daines in support of H.R. 200.. 96
.............................................................
LEGISLATIVE HEARING ON H.R. 200, TO AMEND THE FOREST AND
RANGELAND RENEWABLE RESOURCES PLANNING ACT OF 1974 AND THE
FEDERAL LAND POLICY AND MANAGEMENT ACT OF 1976 TO PROVIDE THAT
THE SECRETARY OF AGRICULTURE AND THE SECRETARY OF THE INTERIOR
ARE NOT REQUIRED TO REINITIATE CONSULTATION ON A LAND
MANAGEMENT PLAN OR LAND USE PLAN UNDER CERTAIN CIRCUMSTANCES,
AND FOR OTHER PURPOSES, ``FOREST INFORMATION REFORM (FIR)
ACT''; H.R. 1473, TO PROVIDE FOR A PROGRAM WITHIN THE FOREST
SERVICE TO DETECT, DOCUMENT, MONITOR, AND REMEDIATE THE
ENVIRONMENTAL DAMAGES CAUSED BY TRESPASS CULTIVATION ON
NATIONAL FOREST LANDS, AND AMEND THE FEDERAL INSECTICIDE,
FUNGICIDE, AND RODENTICIDE ACT TO INCLUDE CRIMINAL PENALTIES
FOR ILLEGAL PESTICIDE APPLICATION ON GOVERNMENT PROPERTY, AND
FOR OTHER PURPOSES, ``TARGETING AND OFFSETTING EXISTING ILLEGAL
CONTAMINANTS ACT''; H.R. 1567, TO REQUIRE THAT THE SECRETARY OF
AGRICULTURE AND THE SECRETARY OF THE INTERIOR SUBMIT ACCURATE
REPORTS REGARDING HAZARDOUS FUELS REDUCTION ACTIVITIES, AND FOR
OTHER PURPOSES, ``ACCURATELY COUNTING RISK ELIMINATION
SOLUTIONS (ACRES) ACT''; AND H.R. 1586, TO ALLOW THE SECRETARY
OF THE INTERIOR AND THE SECRETARY OF AGRICULTURE TO USE A FIRE
RETARDANT, CHEMICAL, OR WATER FOR FIRE SUPPRESSION, CONTROL, OR
PREVENTION ACTIVITIES, ``FOREST PROTECTION AND WILDLAND
FIREFIGHTER SAFETY ACT OF 2023''
----------
Thursday, March 23, 2023
U.S. House of Representatives
Subcommittee on Federal Lands
Committee on Natural Resources
Washington, DC
----------
The Subcommittee met, pursuant to notice, at 2:30 p.m., in
Room 1324, Longworth House Office Building, Hon. Tom Tiffany
[Chairman of the Subcommittee] presiding.
Present: Representatives Tiffany, Fulcher, Stauber, Bentz,
Moylan, Westerman; Neguse, Porter, and Kamlager-Dove.
Also present: Representatives LaMalfa, Rosendale; Hoyle,
and Peters.
Mr. Tiffany. The Committee on the Federal Lands will come
to order.
Without objection, the Chair is authorized to declare a
recess of the Subcommittee at any time.
The Subcommittee is meeting today to consider four forest
health and wildfire prevention bills: H.R. 200, the Forest
Information Reform Act, offered by Representative Rosendale;
H.R. 1473, the Targeting and Offsetting Existing Illegal
Contaminants Act, offered by Representative Peters; H.R. 1567,
the Accurately Counting Risk Elimination Solutions Act, offered
by myself; and H.R. 1586, the Forest Protection and Wildland
Firefighter Safety Act of 2023, offered by Representative
LaMalfa.
I ask unanimous consent that the following Members be
allowed to participate in today's hearing from the dais: the
gentleman from California, Mr. LaMalfa; the gentleman from
Montana, Mr. Rosendale; the gentlewoman from Oregon, Ms. Hoyle;
and the gentleman from California, Mr. Peters.
Without objection, so ordered.
Under Committee Rule 4(f), any oral opening statements at
hearings are limited to the Chairman and the Ranking Minority
Member. I therefore ask unanimous consent that all other
Members' opening statements be made part of the hearing record
if they are submitted in accordance with Committee Rule 3(o).
Without objection, so ordered.
I will now recognize myself for an opening statement.
STATEMENT OF THE HON. TOM TIFFANY, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF WISCONSIN
Mr. Tiffany. America desperately needs solutions to the
catastrophic wildfire and forest health crisis decimating our
Federal lands and forests year after year, which is why
Republicans are dedicating our first Federal Lands Subcommittee
legislative hearing to this critical issue.
As I outlined in our inaugural hearing earlier this month,
the Republican Majority is keeping our commitment to America by
moving four forestry bills that would cut red tape, put an end
to frivolous litigation, address the Biden border crisis by
cutting off illegal marijuana cultivation by cartels on our
Federal lands, and bringing greater transparency to government.
I would first like to talk about the litigation
hamstringing our Federal land management agencies. Today, marks
the expiration of a temporary legislative fix first put into
place by Congress in 2018 to address the 2015 Cottonwood
Environmental Law Center v. U.S. Forest Service court case.
That decision, which conflicted with other long-standing court
precedents, has empowered extreme environmentalist litigants to
weaponize the Endangered Species Act to delay or stop urgently-
needed forest management activities.
The decision on Cottonwood has done nothing to improve
species protection, but has instead only created new
bureaucracy, red tape, and diverted precious agency resources
away from actual management to endless planning and regulatory
compliance.
Since 2015, over 130 forest management projects--130 forest
management projects, ranging from wildfire mitigation work to
wildlife habitat restoration--have been held up in fire-prone
Western states because of Cottonwood. Congressman Rosendale's
Forest Information Reform Act offers an urgently-needed
permanent fix to this misguided gift to activist litigants
dedicated to shutting down responsible forest management by any
means necessary.
This should not be a partisan issue. Both the Obama and
Trump administrations supported overturning the Cottonwood
decision, and the Senate Energy and Natural Resources Committee
reported similar legislation last year by a bipartisan vote 16
to 4. That is why it is unfortunate that instead of taking the
threat of litigation to forest health seriously, my colleagues
on the other side of the aisle have invited a serial litigant
to testify here today.
This stack of papers next to me are documents from the
nearly 60 active and pending lawsuits this witness disclosed
ahead of this hearing. Needless to say, we have very different
ideas of what it means to support our forest products industry.
But far-left environmentalists aren't content with just
weaponizing Federal laws to stop active forest management
projects. Now they are also endangering firefighters' lives and
preventing them from extinguishing those catastrophic fires
once they begin. A fringe environmental group that has been
suing the Forest Service over its use of fire retardant for the
past two decades is now trying to receive a nationwide
injunction against the use of aerial fire retardant ahead of
the upcoming fire season. Congressman LaMalfa's bipartisan
Forest Protection and Wildland Firefighter Safety Act will
ensure our land managers are able to continue to use fire
retardant to save lives, protect communities, and contain
wildfires.
We will also consider two bills today that will hold the
Biden administration accountable. The first bill, which I am
honored to have introduced, is the ACRES Act. This bill will
bring transparency to the misleading and inaccurate way
hazardous fuel treatments are reported.
We have long known the reported pace and scale of forest
management has been insufficient to truly address our
catastrophic wildfire crisis. According to troubling reports,
this situation is even worse than we had been led to believe,
as agencies have been overstating their treatments by over 20
percent. Accurate reporting is necessary to broadly track the
progress made on our larger wildfire mitigation targets, as
well as individual projects. The ACRES Act is a simple solution
to hold our Federal agencies accountable, to see the actual
work they are doing will reduce the enormous risk of wildfire.
The final bill before us today is the TOXIC Act, which is
being led by Congressman Peters. This is a bipartisan effort
that seeks to address the illegal cannabis sites in Federal
forests that are causing significant environmental degradation,
harm to wildlife, increased crime, and catastrophic wildfires.
This is a growing crisis that is being fueled by the Biden
administration's open border policies. The Mexican drug cartels
operating these sites are causing enormous damage. At one site
alone, cleanup crews donning hazmat suits removed 3,000 pounds
of waste and trash, and over 1,100 pounds of fertilizer and
banned pesticides. The chemicals they use are so dangerous, one
teaspoon could kill a 600-pound black bear. H.R. 1473 would
mitigate the environmental damage done by these sites and
subject those illegally growing marijuana on Federal lands to
stricter penalties.
I want to thank the witnesses for being here, and I look
forward to today's discussion.
With that, I will now recognize Ranking Member Kamlager-
Dove for her opening statement.
STATEMENT OF THE HON. SYDNEY KAMLAGER-DOVE, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Ms. Kamlager-Dove. Thank you, Chair Tiffany. Unfortunately,
Ranking Member Neguse cannot stay for today's hearing, so I
will fill in for him this afternoon. And I appreciate my
Republican colleagues for making this accommodation.
Before diving into the details of the bills under
consideration, I think it is important to note that under
Democratic leadership for the last 4 years, this Committee
helped advance historic investments in the future of our
national forests and public lands. These investments support
natural infrastructure, reduce wildfire risk, restore healthy
ecosystems, and build safe, resilient communities. These
investments are at the forefront of our effort to address the
worst effects of the climate crisis, especially wildfire. It is
encouraging to know that these investments are being put to
work by the Biden administration this year.
Today's bill list demonstrates the breadth and complexity
of issues the Forest Service handles as they oversee our
cherished national forests. The agency manages millions of
acres of forest land that provide clean water for millions of
Americans, critical habitat for threatened and endangered
species, and the backdrop for a multi-billion dollar outdoor
recreation economy.
The Forest Service is also our nation's largest fire
suppression agency and deals with critical challenges like the
illegal production of marijuana and other illicit drugs.
All of this taken together is an enormous task, and I
appreciate the hard work of everyone at the Forest Service and
other land management agencies.
Now, I understand several of the bills we are reviewing
today address perceived barriers to forest management that help
restore ecological balance, mitigate risk, and keep
communities. These are important and legitimate concerns.
Wildfire risks should be taken seriously, and forest management
decisions have real-world consequences.
It is also critical that Congress and the American people
receive accurate, transparent, and accessible data about how
projects are being planned and implemented, which is why I
support the intent of Chair Tiffany's ACRES Act. However,
disagreement over metrics doesn't mean we should lose sight of
the need for continued investment. It also doesn't mean we
should scapegoat environmental protection supported by a broad
majority of Americans.
The FIR Act limits thoughtful planning when new endangered
species are listed, critical habitat is designated, or new
scientific information arises on Forest Service and BLM lands.
This could be really problematic for newly-listed species and
for adapting management plans as the impacts of climate change
grow. The best available science should drive Endangered
Species Act decisions, and agencies must ensure that their
plans won't harm the recovery of endangered species. Instead of
rolling back protections, we should provide our land management
agencies with the resources they need to update plans and
consult when necessary, not take tools away that could lead to
better coordination and the preservation of threatened and
endangered species.
Later this afternoon, we will hear from a serial justice
warrior, Susan Jane Brown, a senior attorney with the Western
Environmental Law Center. Ms. Brown is an expert in forest law,
who actively participates in collaborative management decisions
that foster stakeholder-driven and science-backed restoration
outcomes in her home state of Oregon. Her testimony makes it
pretty clear that the Endangered Species Act is not the
boogeyman some make it out to be. And I look forward to hearing
from her and the rest of today's witnesses.
And before I yield, I also want to take some time to note
that this Committee must recognize that climate change is a
major driver of wildfire. The fire season is now months longer,
and in the coming decades wildfires are projected to continue
to increase in number and size.
In fact, earlier this week, the U.N. Intergovernmental
Panel on Climate Change issued its latest report. The panel's
chair concluded by noting, ``We are walking when we should be
sprinting. The climate crisis is a global problem that requires
a global solution. We are on thin ice, and that ice is melting
fast.''
Unfortunately, that is not happening. The House Majority is
doing precisely the opposite by pushing an oil-above-all
agenda, by rushing the polluter over peoples act profits over
people's act to the Floor next week. H.R. 1 is designed to
prioritize Big Oil's wish list and takes every opportunity for
the public to participate in decisions that will impact future
generations away.
Of course, natural climate solutions can help increase
carbon sequestration potential, and well-designed projects can
mitigate wildfire risk. These essential priorities are
sidelined if we cannot find a way to lower overall emissions.
With that, I look forward to today's discussion so we can
consider various perspectives on the four bills.
And I yield back, Mr. Chair.
Mr. Tiffany. Thank you. And now I would like to recognize
the Chairman of the Natural Resources Committee, Mr. Westerman.
STATEMENT OF THE HON. BRUCE WESTERMAN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ARKANSAS
Mr. Westerman. Thank you, Chairman Tiffany and Ranking
Member designee Kamlager-Dove, I guess, today, and thank you to
our witnesses for being here.
And it is refreshing to be in a hearing where we are
actually going to talk about science, we are going to talk
about the way the real world works, and we are going to talk
about the problems with having healthy forests. I have always
looked forward to these debates, because Republicans know that
we are right on the science and we are right on the issues,
especially when it comes to forest management, which these
bills address today.
It is past time that we let the children be in charge that
are not managing our forests. It is time to have the adults in
the room to do the things that need to happen. And it is time
to put a stop to the environmental litigants who are profiting
off of suing the Federal Government, who in no form or fashion,
I think you could say, are actually doing something to help or
protect the forests.
And the record is in the data. Look at the number of fires
we have had, and take the argument about climate change and
more forest fires because of climate change. So, my question
is, what are you going to do about it? Are you are going to
keep suing and stopping forest management?
If the land can't support as many trees as it used to, you
need to thin the trees out. You need to reintroduce fire that
will keep these fuel loads low. And we can't just keep doing
the same thing over and over, or we are going to get the same
results. And now those results are even happening in our giant
sequoia groves. We sequestered fire from the sequoia groves for
over 100 years, and we lost nearly 20 percent of the giant
sequoias on the Earth because of mismanagement, because we let
trees grow up in the understory that created the ladder fuel
and got the fuel up in the canopy.
It is time for the craziness to stop. And speaking of
crazy, now we have people suing to not use fire retardant. So,
not only are we not going to do the preventative work to keep
the fires from happening or to keep the fires low, now we have
people saying when the fires start, we are not going to put
them out because we don't like fire retardant, which if you
don't know, it is actually a fertilizer. It is some form of
phosphorus fertilizer that is used for fire retardant.
So, there are some common-sense bills here today to address
issues on forest management. And there is also a bill here that
deals with the Cottonwood issue, which is doing great harm to
the endangered species. We claim we have these foundational
environmental laws that are to protect our environment, to
protect our wildlife, and these laws are being abused, and they
are harming more wildlife than they are doing good.
If we cared about wildlife, we would do the management on
the forests to create the habitat so that wildlife could
survive and so it could thrive. And we should be ashamed,
totally ashamed, when we let our public lands grow up to where
they are fire hazards, and where you can't even support
wildlife because of such mismanagement on those lands.
I have said before that the ESA has become like Hotel
California: you check in, but you can't check out. And we have
to make the ESA work. We have to make it work for endangered
species, not for people who want to sue, not for people who
want to create clickbait on the Internet, and not for people
who want to fundraise in the name of the environment. We have
to fix these issues so that we can actually help endangered
species. And I hope that is what everybody on the Committee and
our witnesses are wanting to do. I think that is what the
American people want to do.
Look, we all care about the environment, and there is no
greater indicator of a healthy environment than a healthy
forest. It gives us clean air, it gives us clean water, it
gives us wildlife habitat, it gives us places to recreate. And
we are blessed with abundant Federal lands in this country that
have so much potential that is being so under-utilized. There
are examples, great examples on Federal lands, where the right
kind of management is taking place. We just need to empower the
Federal land managers to do that all across the country.
I look forward to the testimony, and I yield back.
Mr. Tiffany. Thank you, Mr. Chairman, and now I would like
to recognize Representative LaMalfa to discuss the Wildland
Firefighter Safety Act.
Representative LaMalfa, you are recognized for 5 minutes.
STATEMENT OF THE HON. DOUG LaMALFA, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mr. LaMalfa. Thank you, Mr. Chairman. I appreciate the
opportunity, and being able to sit in on the Committee today.
Good afternoon, Mr. Chairman, Ranking Member. I am glad to be
part of this.
Across the West, we continue to face a wildfire crisis. In
the past 5 years alone, we have seen some of the most
destructive wildfires on record, especially in California. In
my own district, we have seen catastrophic damage from the 2018
Camp Fire in Paradise that leveled three-quarters of the town,
known as the deadliest fire in California's history. In 2021,
we saw the million-acre Dixie Fire, the largest single-source
fire in California history. We don't like setting those kinds
of records.
Since 2000, we have averaged more than 70,000 wildfires per
year and an average of 7 million acres burned annually. This
acreage is more than double the average number during the
1990s, more than double in just a decade.
Since 2018, we have had four fire seasons that have
exceeded 7 million acres, including 2020, when 10.1 million
acres burned. In part to nearly a decade of forest
mismanagement, our fires are getting bigger, hotter, and more
aggressive than ever before.
As a member on the House Committee on Natural Resources,
Committee on Transportation and Infrastructure, and as part of
the Ag Subcommittee on Forestry, I know and have seen these
issues firsthand. Like you, we are reviewing current forestry
policies, evaluating how we can increase the pace and scale of
proper forest management so that we can conserve forest health
while removing overgrowth that increases risk of devastating
wildfires.
Overhauling the current regulatory framework will not
happen overnight. Removing brittle, decaying trees and dry
overgrowth on tens of millions of acres of forest land will
take years. Until then, until our forests are in a healthy
state and a small, naturally-occurring blaze does not pose a
risk of turning into another million-acre catastrophic blaze,
it is essential that all wildland firefighting agencies
continue to be able to utilize every single tool they can to
protect forested land and nearby residents from these
wildfires.
Unfortunately, environmentalists have confused protecting
forested lands with preventing intervention of any kind, even
if it means life or death. In the case of the Forest Service
Employees for Environmental Ethics v. the United States Forest
Service, the impetus for my bill, the plaintiff has asked for
an injunction on the use of fire retardant, as my colleague,
Mr. Chairman, said, until the Forest Service receives a
National Pollutant Discharge Elimination System permit. It
takes long just to say that name. Can you imagine how long it
will be to get the permits? It will take years to obtain.
If the injunction is granted and fire retardant is not
available for this fire season, the Forest Service, all of our
states, tribal agencies, and counties will have to sit by
should another devastating fire come, which it will, as we who
live in the West know, that unfortunately, fire season is year
round, and it is inevitable.
This can't wait. The 2023 fire season is already here. My
state of California has already had dozens of wildfires.
Thankfully, only about 64 acres have been counted as burned. It
is the off season. But you look at Southern California, as dry
as it usually is, we could have a catastrophe at any time. So,
it is a year-round deal.
Already there are zones on forested lands where the use of
fire retardant is restricted. According to the Forest Service,
``It is estimated that less than one-half of 1 percent of fire
retardant drops may reach the 300-foot or larger buffer zone
between the drops and a sensitive area,'' maybe a creek or a
river, particular wildlife. So, indeed, these buffers are there
for that reason, to be the buffer from where the drop would end
and where the sensitive area would begin.
So, when you have less than one-half percent of these drops
reaching just into the buffer zone, and even more rarely
getting into the actual waterway or whatever it may be, it
shows that they work, the system works. Pilot planes guide the
large aircraft where they need to go, and they are governed by
the Forest Service. So, we know the process will work. Yet, it
has gotten almost hysterical. And how we can take this tool
away, especially if it is going to take years of review, we are
just putting a lot of people, a lot of land, and a lot of
wildlife in peril.
So, how the plaintiff can claim to want to protect the
environment when they actively allow another fire to harm
residents and wildlife, destroy vast areas of forest land--you
heard the numbers, hundreds of thousands--and property, pollute
rivers with ash and debris, and choke vulnerable people up to
hundreds of miles away, it is just a complete mystery to me.
To every single Member of the Congress in this room, it is
your constituents who will be put in danger if there is
injunction of fire retardant. Yes, even on the East Coast, as
the smoke plume from the million-acre Dixie Fire got up in the
atmosphere and pushed across the country and affected large
cities on the East Coast, where health alerts were put out
because of fire in my district, 2,500 miles away.
So, I want to thank many of the organizations that were
helpful in submitting letters of support. Mr. Chairman, I would
like to ask unanimous consent to submit those letters from
forest landowners, California Farm Bureau, Federal Forest
Resource, et cetera. So, I appreciate that.
Mr. Tiffany. So ordered.
[The information follows:]
Letters of Support for H.R. 1586 Submitted by Rep. LaMalfa
AIRSPRAY AIRTANKERS
Chico, California
March 16, 2023
Hon. Doug LaMalfa, Member of Congress
CA District 1
120 Independence Circle Suite B
Chico, CA 95973
Re: H.R. 1586--the Forest Protection and Wildland Firefighter Safety
Act of 2023
Dear Mr. LaMalfa:
We greatly appreciate that you have brought forward the above Bill
to Congress. The matter is of pressing concern to the effective
operation of wildland fire suppression in the United States.
Retardant has proven to be a safe and effective tool in the
protection of People, Property and the Environment for many years. To
eliminate the use of retardant would endanger the lives of ground
firefighters as well as worsen the impacts of fires.
Please let us know if there is anything additional, we can do to
support this very important Bill
Sincerely,
Paul J. Lane,
President
______
COUNTY OF PLACER
BOARD OF SUPERVISORS
Auburn, California
March 17, 2023
Hon. Doug LaMalfa, Representative
House of Representatives, 1st District of California
408 Cannon House Office Building
Washington, DC 20515
Re: Support for H.R. 1586, Forest Protection and Wildland Firefighter
Safety Act of 2023
Dear Congressman LaMalfa:
On behalf of the Placer County Board of Supervisors, I am writing
to express our support for H.R. 1586 Forest Protection and Wildland
Firefighter Safety Act of 2023. We appreciate your leadership on this
critical issue and that the legislation has strong bi-partisan support.
H.R. 1586 creates a Clean Water Act exemption for federal, state,
local, and tribal firefighting agencies to use fire retardant to fight
wildfires. Fire retardant is an essential tool used to contain or slow
the spread of wildfires. Providing a Clean Water Act exemption so that
federal, state, local, and tribal firefighting agencies can continue to
use fire retardant is necessary to keep this tool available. Our fire
prone communities are at risk every year from the threat of wildfire.
It is critical for the survival of our communities, forests, and safety
of fire crew members to utilize retardant when deemed necessary. We
have seen time and again, using retardant slows the spread of fire,
protects homes, infrastructure, and communities by creating a boundary
line of attack for fire crews.
Currently the Forest Service and other agencies are operating under
the assumption that a National Pollutant Discharge Elimination System
(NPDES) permit is not required for the use of fire retardant because
the regulations specifically state that fire control is a ``non-point
source silvicultural activity'' and communications from the
Environmental Protection Agency dating back to 1993 indicated a permit
is not required. This bill would specifically state that a permit is
not required for fire retardant to fight wildfires. If fire retardant
is not available for use in the 2023 fire year, firefighters and
individuals living in forested communities, including Placer County
would be in greater danger, and millions of acres of forested land and
billions of dollars of infrastructure would be at risk.
For these reasons, we strongly support for H.R. 1586--Forest
Protection and Wildland Firefighter Safety Act of 2023. If you have any
questions, please reach out to Joel Joyce, Legislative and Governmental
Affairs Coordinator.
Sincerely,
Jim Holmes, Chair
COUNTY OF PLACER
______
CITY OF OROVILLE
Oroville, California
March 17, 2023
Hon. Doug LaMalfa, Member of Congress
408 Cannon House Office Building
Washington, DC 20515
Re: Letter of Support for Forest Protection and Wildland Firefighter
Safety Act of 2023
Dear Congressman LaMalfa:
As a retired Firefighter of 35 years and now Current Mayor of City
in the foothills of wildfire threat zone. I write to your support for
my bipartisan bill, H.R. 1586--the Forest Protection and Wildland
Firefighter Safety Act of 2023.
H.R. 1586 creates a Clean Water Act exemption for federal, state,
local, and tribal firefighting agencies to use fire retardant to fight
wildfires. As you know, fire retardant is an essential tool used to
contain or slow the spread of wildfires. Currently the Forest Service
and other agencies are operating under the assumption that a National
Pollutant Discharge Elimination System (NPDES) permit is not required
for the use of fire retardant because the regulations specifically
state that fire control is a ``non-point source silvicultural
activity'' and communications from EPA dating back to 1993 indicated a
permit is not required.
This bill is needed because an environmentalist group is suing the
Forest Service under the Clean Water Act to require a NPDES permit to
use fire retardant and they have requested an injunction on the use of
fire retardant until the Forest Service receives this permit, which
could take years. If the injunction is granted and fire retardant is
not available for use in the 2023 fire year, firefighters and
individuals living in forested communities would be in greater danger,
and millions of acres of forested land and billions of dollars of
infrastructure would be at risk.
I appreciate your consideration of this pressing concern. We must
be able to fight wildfires with everything we have, and limiting
firefighting agencies' ability to do so flies in the face of forest
conservation and our mission to protect nearby residents. Congressman
Doug LaMalfa has garnered bipartisan support throughout Congress. and
was joined in introduction by the following Members of Congress: Jimmy
Panetta (D-CA), Dan Newhouse (R-WA), John Duarte (R-CA), Russ Fulcher
(R-ID), Tom McClintock (R-CA), John Garamendi (D-CA), Austin Scott (R-
GA), Amata Radewagen (R-AS), Troy Nehls (R-TX), Lauren Boebert (R-CO),
Rick Crawford (R-AR), Young Kim (R-CA), Ryan Zinke (R-MT), Blake Moore
(R-UT), Burgess Owens (R-UT), Mike Simpson (R-ID), Trent Kelly (R-MS),
Ken Calvert (R-CA), Pete Stauber (R-MN), Darrell Issa (R-CA), Mary
Miller (R-IL), Kevin Kiley (R-CA), Matt Rosendale (R-MT), Jim Costa (D-
CA), Jay Obernolte (R-CA), and Harriet Hagerman (R-WY).
Sincerely,
David W. Pittman,
Mayor, City of Oroville
______
CRANE MILLS
Corning, California
March 17, 2023
Hon. Doug LaMalfa, Representative
408 Cannon House Office Building
Washington, DC 20515
Re: Letter of Support for H.R. 1586
Dear Representative LaMalfa:
I am pleased to announce Crane Mills' support for H.R. 1586, Forest
Protection and Wildland Firefighter Safety Act of 2023, which would
create a Clean Water Act exemption for federal, state, local, and
tribal firefighting agencies to use fire retardant to fight wildfires.
I appreciate your leadership on this critical issue and that the
legislation has strong bi-partisan support.
We are currently in a period of unprecedented, catastrophic
wildfires and it is imperative that fires are being fought with all
available resources. Fire retardant is a vital tool that our
firefighters need to have at their disposal. It has been proven to be
an effective means to slow the spread of fire, protect homes,
infrastructure, and communities. This act will ensure that our
firefighting agencies can continue to use fire retardant, as needed, to
protect the things that matter most: people, communities,
infrastructure and natural resources.
Regardless of how it is applied--be it dropped from a plane,
sprayed from a tanker truck, or applied by hand--retardant is an
effective tool that helps keep our communities safe and our natural
resources from being destroyed from damaging wildfires.
We support your efforts on H.R. 1586.
Sincerely,
Drew Crane,
CFO
______
INTERNATIONAL WILDFIRE CONSULTING GROUP
March 17, 2023
Hon. Doug LaMalfa, U.S. Representative
408 Cannon House Office Building
Washington, DC 20515
Re: Support for H.R. 1586, Forest Protection and Wildland Firefighter
Safety Act of 2023
Dear Representative LaMalfa:
We are pleased to announce International Wildfire Consulting
Group's support for H.R. 1586, Forest Protection and Wildland
Firefighter Safety Act of 2023. We appreciate your leadership on this
critical issue and that the legislation has strong bi-partisan support.
In October 2007, the USFS issued an environmental assessment and
decision notice and finding of no significant impact, entitled ``Aerial
Application of Fire Retardant.'' From 2007 to 2010 significant work and
policies have been engaged Nationally to ensure the safe use of
retardants.
The use of retardant is a vital tool that our firefighters need to
have at their disposal. Providing a Clean Water Act exemption so that
federal, state, local, and tribal firefighting agencies can continue to
use fire retardant is necessary to keep this tool available. Our fire
prone communities are at risk every year from the threat of wildfire.
It is critical for the survival of our communities, forests, and safety
of fire crew members to utilize retardant when deemed necessary. We
have seen time and again, using retardant slows the spread of fire,
protects homes, infrastructure, and communities by reducing fire
intensity and creating anchor points to assist fire crews in
controlling unwanted fire.
It is imperative that we maintain our ability to fight wildfires
safely, and effectively. Limiting firefighting agencies' ability to do
so slow fires will harm forest conservation, endangered species
protection, historic sites and watershed preservation, and our mission
to protect nearby residents and public health.
Whether dropped from a plane, sprayed from a tanker truck, or hand
applied by private homeowners, retardant is a tool that keeps our
communities safe and our watersheds from being destroyed from damaging
catastrophic wildfires. In the wildland-urban interface, we need this
tool to protect critical infrastructure and human life. We support your
efforts on H.R. 1586.
Thank you,
Dan Reese
______
FEDERAL FOREST RESOURCE COALITION
Statement for the Record
Regarding Pending Legislation:
H.R. 200; The FIR Act; H.R. 1567, the ACRES Act;
and H.R. 1586, the Forest Protection and Wildland Firefighter Safety
Act
The following Statement is submitted on behalf of the Federal
Forest Resource Coalition, which represents purchasers of Federal
timber in 37 states, with over 650 member companies and affiliated
associations, collectively representing over 390,000 employees. The
legislation before today's hearing is of vital importance to the future
of our National Forests and we urge the committee to move these bills
quickly.
H.R. 200: The Forest Information Reform Act would clarify
Congress's intent regarding existing Forest Plans and the Endangered
Species Act. As this committee is aware, a small environmental group
called the Cottonwood Environmental Law Center filed a suit against the
Forest Service, alleging that recently adopted critical habitat
designations and species listings required the agency to engage in
Section 7 consultation with the U.S. Fish & Wildlife Service (FWS).
This decision allowed environmental groups to seek injunctions against
forest management projects, even when neither the Forest Service nor
the FWS had any concerns regarding the specific projects. Instead of
implementing needed management on the ground, forest managers were
forced to go back and consult on the underlying forest plans, even if
those plans were more than a quarter century old.
The decision was so egregious that the Obama Administration
appealed it all the way to the Supreme Court, which unfortunately
refused to take the case. Since then, the results have been nothing
short of disastrous. Courts have enjoined projects which would have
treated thousands of acres for hazardous fuels reduction, canceled
timber sales that would have provided badly needed fiber to markets,
and possibly contributed to the severity of recent wildfires.
In the Forest Service's Northern Region, litigation based on this
awful precedent has caused injunctions against projects which would
have produced over 200 million board feet of lumber; that's enough to
frame over 26,000 houses. In New Mexico, environmental groups won a 13-
month injunction which delayed fuels treatments on the Santa Fe
National Forest. This delay may have contributed to the fuel build up
that led to the Hermit's Peak escaped prescribed fire, which went on to
scorch over 341,000 acres, destroying homes, watersheds, wildlife
habitat, and compromising the water supplies of numerous mountain
communities.
Once again, these delays do not produce conservation benefits: they
merely force the land managers to sit down with FWS and discuss very
old forest plans in light of ``new information'' like climate change.
In the case of the injunction in New Mexico, every National Forest that
has Mexican Spotted Owls was in the process of revising their forest
plans when they were enjoined. Instead of instituting the fuels
reduction project and pressing forward with the overdue plan revisions,
Forest staff were forced to spend their limited time and resources
discussing a plan that at the time was over 32 years old. Less than 36
months after the injunction, the Forest formally adopted a new Forest
Plan, demonstrating that the forced consultation was purely dilatory
and not intended to change overall management direction on the Forest.
In 2018, the Omnibus Spending bill for Fiscal Year 2019 provided
that consultation was not required following the designation of new
critical habitat. That legislation, which expires this month, only
covered one of the ``prongs'' of the Cottonwood case: leaving the
Forest Service exposed to charges of ``new information'' and other ESA
technicalities. Environmental groups have continued to file suits
against specific projects to force plan level consultation.
The Forest Service and Fish & Wildlife Service have limited
resources and staffing. Congress should make it clear that Forest Plans
are not ``ongoing actions'' that require consultation following plan
adoption. We urge you to pass H.R. 200 and work to see that it is
enacted as quickly as possible.
H.R. 1567: The ACRES Act: This legislation would require accurate
reporting by Federal land managers regarding hazardous fuels treatments
on Federal lands. It requires a yearly hazardous fuel reduction report
based on the actual number of acres that the respective agencies
treated over the past year.
The ACRES Act requires Federal land management agencies at the
Departments of Agriculture and Interior to provide Congress and the
public with annual reports that detail the actual, accurate acreage
where hazardous fuel reduction activities took place and the region or
system unit in which the acres were located; distinguish between
treatments that occurred within the wildland-urban interface; show the
effectiveness of the hazardous fuels reduction work in reducing
wildfire risk; convey what methods were used to reduce hazardous fuels
and the cost per acre to do so; implement standardized procedures for
tracking data for hazardous fuels reduction.
This bill will give the American people a more accurate accounting
of how much progress Federal land managers are making in addressing our
wildfire crisis. Congress has given them unprecedented authorities and
resources--and the public is entitled to know what these agencies are
up to. If federal land managers actively use all of the expedited
authorities Congress has given them, the number of treated acres should
rise rapidly. We urge you to advance this bill as quickly as possible.
H.R. 1586: The Forest Protection and Firefighter Safety Act: An
obscure environmental group (Forest Service Employees for Environment
Ethics or FSEEE) is not just suing the Forest Service over their use of
aerially-applied fire retardant; they are actually asking a single
Federal judge in Montana to issue a nation-wide injunction barring it's
use until the Forest Service obtains a Clean Water Act permit, a
process that could take years.
FFRC recently joined a diverse coalition of groups seeking to
intervene in this case. In addition to communities recently devastated
by wildfires, the Intervenors also include trade associations of forest
products companies that own lands adjacent to national forests, as well
as companies holding timber contracts on National Forests. Significant
human and economic losses experienced in recent fire seasons will
compound exponentially if the Court bars the Forest Service from using
retardant when necessary to protect human life, homes, private lands,
and the environment. In our view, the Forest Service has taken the ill-
advised step of agreeing to seek a Clean Water Act permit for
``discharges'' of fire retardant.
While we are experiencing an unusually cold and damp winter in many
areas, there are tens of millions of acres of National Forest in an
unhealthy state. These overgrown, overstocked, and drought-weakened
forests are tinderboxes, simply waiting for an ignition source. As the
fire seasons of 2020 and 2021 demonstrated, fire managers must have
access to every single tool available to contain fires once they start,
and to protect communities from fires that escape initial attack.
If the environmental groups succeed in winning an injunction
against the use of fire retardant, it would remove a key tool used to
safely fight wildfires and put wildland firefighters, communities, and
natural resources at risk at a time where wildfire is increasing in
scale and scope across the United States. It beggars the imagination
that the Courts are even contemplating the request for an injunction.
While we're hopeful this request will be rejected, Congress should not
wait for the legal process to play itself out. Firefighters and land
managers must be allowed to do their jobs of protecting life, property,
and natural resources, and to be effective they must have access to
every legal tool available. We urge you to advance this bill as quickly
as possible.
______
COMMERCIAL LUMBER AND PALLET COMPANY, INC.
Industry, California
March 17, 2023
Hon. Doug LaMalfa, U.S. Representative
408 Cannon House Office Building
Washington, DC 20515
Re: Support for H.R. 1586, Forest Protection and Wildland Firefighter
Safety Act of 2023
Dear Representative LaMalfa:
We are pleased to announce Commercial Lumber and Pallet Companies
support for H.R. 1586, Forest Protection and Wildland Firefighter
Safety Act of 2023. We appreciate your leadership on this critical
issue and that the legislation has strong bi-partisan support.
The use of retardant is a vital tool that our firefighters need to
have at their disposal. Providing a Clean Water Act exemption so that
federal, state, local, and tribal firefighting agencies can continue to
use fire retardant is necessary to keep this tool available. Our fire
prone communities are at risk every year from the threat of wildfire.
It is critical for the survival of our communities, forests, and safety
of fire crew members to utilize retardant when deemed necessary. We
have seen time and again, using retardant slows the spread of fire,
protects homes, infrastructure, and communities by creating a boundary
line of attack for fire crews.
It is imperative that we maintain our ability to fight wildfires
effectively. Limiting firefighting agencies' ability to do so slow
fires will harm forest conservation, endangered species protection,
historic sites preservation, and our mission to protect nearby
residents.
Whether dropped from a plane, sprayed from a tanker truck, or hand
applied by private homeowners, retardant is a tool that keeps our
communities safe and our watersheds from being destroyed from damaging
catastrophic wildfires. In the wildland-urban interface, we need this
tool to protect critical infrastructure and human life.
We support your efforts on H.R. 1586.
Sincerely,
Kathleen Dietrich,
Operations Manager
______
March 20, 2023
Hon. Doug LaMalfa, U.S. Representative
408 Cannon House Office Building
Washington, DC 20515
Re: Support for H.R. 1586, Forest Protection and Wildland Firefighter
Safety Act of 2023
Dear Representative LaMalfa:
I gladly support for H.R. 1586, Forest Protection and Wildland
Firefighter Safety Act of 2023. I appreciate your leadership on this
critical issue and that the legislation has strong bi-partisan support.
The use of retardant is a vital tool that our firefighters need to
have at their disposal. Providing a Clean Water Act exemption so that
federal, state, local, and tribal firefighting agencies can continue to
use fire retardant is necessary to keep this tool available. Our fire
prone communities are at risk every year from the threat of wildfire.
It is critical for the survival of our communities, forests, and safety
of fire crew members to utilize retardant when deemed necessary. We
have seen time and again, using retardant slows the spread of fire,
protects homes, infrastructure, and communities by creating a boundary
line of attack for fire crews.
It is imperative that our agencies maintain their ability to fight
wildfires effectively. Limiting firefighting agencies' ability to slow
fires will harm forest conservation, endangered species protection,
historic sites preservation, and our mission to protect nearby
residents.
Whether dropped from a plane, sprayed from a tanker truck, or hand
applied by private homeowners, retardant is a tool that keeps our
communities safe and our watersheds from being destroyed from damaging
catastrophic wildfires. In the wildland-urban interface, we need this
tool to protect critical infrastructure and human life.
I support your efforts on H.R. 1586.
Thank you,
Danielle Lindler
Registered Professional Forester
______
Hon. Doug LaMalfa, U.S. Representative
408 Cannon House Office Building
Washington, DC 20515
Dear Representative LaMalfa:
I am pleased to join in support for H.R. 1586, Forest Protection
and Wildland Firefighter Safety Act of 2023. I appreciate your
leadership on this critical issue and that the legislation has strong
bi-partisan support.
The use of retardant is a vital tool that our firefighters need to
have at their disposal. Providing a Clean Water Act exemption so that
federal, state, local, and tribal firefighting agencies can continue to
use fire retardant is necessary to keep this tool available. Our fire
prone communities are at risk every year from the threat of wildfire.
It is critical for the survival of our communities, forests, and safety
of fire crew members to utilize retardant when deemed necessary. We
have seen time and again, using retardant slows the spread of fire,
protects homes, infrastructure, and communities by creating a boundary
line of attack for fire crews.
In view of the inferior stewardship of USFS lands, it is imperative
that we maintain our ability to fight wildfires effectively. Limiting
firefighting agencies' ability to slow fires, will harm forest
conservation, endangered species protection, historic sites
preservation, and our mission to protect nearby residents.
Whether dropped from a plane, sprayed from a tanker truck, or hand
applied by private homeowners, retardant is a tool that keeps our
communities safe and our watersheds from being destroyed from damaging
catastrophic wildfires. In the wildland-urban interface, we need this
tool to protect critical infrastructure and human life.
We support your efforts to enact H.R. 1586.
Thank you,
Arne Hultgren
______
ORANGE COUNTY FIRE AUTHORITY
Irvine, California
March 20, 2023
Hon. Doug LaMalfa, U.S. Representative
408 Cannon House Office Building
Washington, DC 20515
Re: Support for H.R. 1586, Forest Protection and Wildland Firefighter
Safety Act of 2023
Dear Representative LaMalfa:
I am pleased to let you know that the Orange County Fire Authority
(OCFA) supports your bill H.R. 1586, Forest Protection and Wildland
Firefighter Safety Act of 2023. I appreciate your leadership on this
critical issue and am grateful that the legislation has received strong
bi-partisan support.
The use of retardant is a vital tool that our firefighters need to
have at their disposal. Providing a Clean Water Act exemption so that
federal, state, local, and tribal firefighting agencies can continue to
use fire retardant is necessary to keep this tool available. Our fire-
prone communities are at risk every year from the threat of wildfire.
The use of retardant when deemed necessary by highly trained and
experienced Incident Commanders is critical for the survival and safety
of not only our firefighters, but also the very communities and
residents they are sworn to protect. I have seen time and again that
using retardant slows the spread of fire, protects homes, saves
infrastructure, and keeps communities safe by creating a boundary line
of attack for fire crews.
It is imperative that we maintain our ability to fight wildfires
effectively. Limiting our ability to do so will harm forest
conservation, threaten endangered species, imperil historic site
preservation, and impede our ability to protect residents. In short, we
need this tool to protect critical infrastructure and human life.
I support your efforts on H.R. 1586.
Sincerely,
Brian Fennessy,
Fire Chief
______
CALIFORNIA SPECIAL DISTRICTS ASSOCIATION
Sacramento, California
March 20, 2023
Hon. Doug LaMalfa, U.S. Representative
408 Cannon House Office Building
Washington, DC 20515
Re: Support for H.R. 1586, Forest Protection and Wildland Firefighter
Safety Act of 2023
Dear Representative LaMalfa:
The California Special Districts Association (CSDA), representing
more than 1,300 special districts and affiliate organizations is
pleased to support your H.R. 1586, Forest Protection and Wildland
Firefighter Safety Act of 2023. We appreciate your leadership on this
critical issue and that the legislation has strong bi-partisan support.
CSDA represents all types of districts, including fire protection
districts defending our forests, lives, property, and economic
prosperity.
The use of retardant is a vital tool that firefighters need to have
at their disposal. Providing a Clean Water Act exemption so that
federal, state, local, and tribal firefighting agencies can continue to
use fire retardant is necessary to keep this tool available. Our fire
prone communities are at risk every year from the threat of wildfire.
It is critical for the survival of our communities, forests, and safety
of fire crew members to utilize retardant when deemed necessary. We
have seen time and again, using retardant slows the spread of fire,
protects homes, infrastructure, and communities by creating a boundary
line of attack for fire crews.
It is imperative that we maintain our ability to fight wildfires
effectively. Limiting firefighting agencies' ability to do so slow
fires will harm forest conservation, endangered species protection,
historic sites preservation, and our mission to protect nearby
residents. Whether dropped from a plane, sprayed from a tanker truck,
or hand applied by private homeowners, retardant is a tool that keeps
our communities safe and our watersheds from being destroyed from
damaging catastrophic wildfires. In the wildland-urban interface, we
need this tool to protect critical infrastructure and human life.
We support your efforts on H.R. 1586.
Thank you,
Kyle Packham,
Advocacy and Public Affairs Director
______
SIERRA COUNTY BOARD OF SUPERVISORS
Downieville, California
March 21, 2023
Hon. Doug LaMalfa, U.S. Representative
408 Cannon House Office Building
Washington, DC 20515
Re: Support for H.R. 1586, Forest Protection and Wildland Firefighter
Safety Act of 2023
Dear Representative LaMalfa:
We are pleased to announce Sierra County Board of Supervisor's
support for H.R. 1586, Forest Protection and Wildland Firefighter
Safety Act of 2023. We appreciate your leadership on this critical
issue and that the legislation has strong bi-partisan support.
The use of retardant is a vital tool that our firefighters need to
have at their disposal. Providing a Clean Water Act exemption so that
federal, state, local, and tribal firefighting agencies can continue to
use fire retardant is necessary to keep this tool available. Our fire
prone communities are at risk every year from the threat of wildfire.
It is critical for the survival of our communities, forests, and safety
of fire crew members to utilize retardant when deemed necessary. We
have seen time and again, using retardant slows the spread of fire,
protects homes, infrastructure, and communities by creating a boundary
line of attack for fire crews.
It is imperative that we maintain our ability to fight wildfires
effectively. Limiting firefighting agencies' ability to do so slow
fires will harm forest conservation, endangered species protection,
historic sites preservation, and our mission to protect nearby
residents. Whether dropped from a plane, sprayed from a tanker truck,
or hand applied by private homeowners, retardant is a tool that keeps
our communities safe and our watersheds from being destroyed from
damaging catastrophic wildfires. In the wildland-urban interface, we
need this tool to protect critical infrastructure and human life.
We support your efforts on H.R. 1586.
Sincerely,
Sharon Dryden,
Chair
______
NATIONAL ALLIANCE OF FOREST OWNERS
Statement for the Record
H.R. 1586
Washington, DC--The National Alliance of Forest Owners responded in
a statement to the introduction of H.R. 1586, to allow the Secretary of
the Interior and the Secretary of Agriculture to use a fire retardant,
chemical, or water for fire suppression, control, or prevention
activities.
``We applaud the introduction of H.R. 1586, a bipartisan bill that
will support our nation's wildland firefighters by ensuring they have
the tools they need to protect our people, rural communities, and
forested ecosystems from severe wildfire. The wildfire crisis is at an
inflection point. Now is the time to improve and strengthen our
wildfire suppression resources, not reduce or weaken them. Healthy
forests support healthy communities, clean air and water, wildlife
habitat, and good-paying jobs. Severe wildfires are increasingly
putting these benefits at risk. The health and resilience of our
nation's forests and the rural communities they support depend on
immediate and comprehensive fire suppression during fire season.
Maintaining that capability should be a top priority for everyone. We
look forward to working with Chairman LaMalfa and the rest of the
Committee to support our nation's firefighters as they protect the
health and safety of our rural communities and the sustainability of
our forests.
______
CITY OF CHICO
OFFICE OF THE MAYOR
Chico, California
March 21, 2023
Hon. Doug LaMalfa, U.S. Representative
408 Cannon House Office Building
Washington, DC 20515
Re: Support for H.R. 1586, Forest Protection and Wildland Firefighter
Safety Act of 2023
Dear Representative LaMalfa:
I am pleased to announce my support for H.R. 1586, Forest
Protection and Wildland Firefighter Safety Act of 2023. I appreciate
your leadership on this critical issue and that the legislation has
strong bi-partisan support.
The use of retardant is a vital tool that our firefighters need to
have at their disposal. Providing a Clean Water Act exemption so that
federal, state, local, and tribal firefighting agencies can continue to
use fire retardant is necessary to keep this tool available. Our fire
prone communities are at risk every year from the threat of wildfire.
It is critical for the survival of our communities, forests, and safety
of fire crew members to utilize retardant when deemed necessary. I have
seen time and again, using retardant slows the spread of fire, protects
homes, infrastructure, and communities by creating a boundary line of
attack for fire crews.
It is imperative that we maintain our ability to fight wildfires
effectively. Limiting firefighting agencies' ability to do so will harm
forest conservation, endangered species protection, historic sites
preservation, and our mission to protect nearby residents.
Whether dropped from a plane, sprayed from a tanker truck, or hand
applied by private homeowners, retardant is a tool that keeps our
communities safe and our watersheds from being destroyed from damaging
catastrophic wildfires. In the wildland-urban interface, we need this
tool to protect critical infrastructure and human life.
I support your efforts on H.R. 1586!
Sincerely,
Andrew Coolidge,
Mayor, City of Chico
______
CALIFORNIA FORESTRY ASSOCIATION
(Calforests)
Sacramento, California
March 21, 2023
Hon. Doug LaMalfa, Congressman (CA-01)
408 Cannon House Office Building
Washington, DC 20515
Re: Calforests Support for H.R. 1586
Dear Congressman LaMalfa:
On behalf of California Forestry Association (Calforests) I am
writing to express strong support of H.R. 1586, which would allow the
continued use of fire retardant by the Secretary of the Interior and
the Secretary Agriculture during fire protection activities.
Calforests is the preeminent trade association and advocate for the
state's forest industry. Collectively, our members--private forestland
owners--manage nearly 3.5 million acres of forest land throughout the
state and operate nearly the entirety of the state's forest products
infrastructure, including sawmills, veneer mills, and biomass power
plants. As the steward of a significant portion of the state's forest
lands, Calforests members have a vested interest in ensuring that the
fire protection system remains intact and as effective as possible.
H.R. 1586 is a bipartisan effort to ensure that our wildland
firefighters maintain all tactical advantages necessary during wildfire
suppression activities to assure that protection of rural communities,
rural economies and natural resources are protected. Even more so, H.R.
1586 will protect those that dedicate their lives to serving the people
of the United States as wildland firefighters. The associated risk of
any retraction of available tools to support wildfire suppression
efforts during this time of crisis in California and beyond is simply
untenable.
Again, Calforests expresses strong support and looks forward to
continued work with you on this critical issue.
Sincerely,
Matt Dias,
President and CEO
______
COUNTY OF TEHAMA
Board of Supervisors
Red Bluff, California
March 21, 2023
Hon. Doug LaMalfa, U.S. Representative
408 Cannon House Office Building
Washington, DC 20515
Re: Support for H.R. 1586, Forest Protection and Wildland Firefighter
Safety Act of 2023
Dear Representative LaMalfa:
We are pleased to announce the Tehama County Board of Supervisors
support for H.R. 1586, Forest Protection and Wildland Firefighter
Safety Act of 2023. We appreciate your leadership on this critical
issue and that the legislation has strong bi-partisan support.
The use of retardant is a vital tool that our firefighters need to
have at their disposal. Providing a Clean Water Act exemption so that
federal, state, local, and tribal firefighting agencies can continue to
use fire retardant is necessary to keep this tool available. Our fire
prone communities are at risk every year from the threat of wildfire.
It is critical for the survival of our communities, forests, and safety
of fire crew members to utilize retardant when deemed necessary. We
have seen time and again, using retardant slows the spread of fire,
protects homes, infrastructure, and communities by creating a boundary
line of attack for fire crews.
It is imperative that we maintain our ability to fight wildfires
effectively. Limiting firefighting agencies' ability to do so slow
fires will harm forest conservation, endangered species protection,
historic sites preservation, and our mission to protect nearby
residents.
Whether dropped from a plane, sprayed from a tanker truck, or hand
applied by private homeowners, retardant is a tool that keeps our
communities safe and our watersheds from being destroyed from damaging
catastrophic wildfires. In the wildland-urban interface, we need this
tool to protect critical infrastructure and human life.
We, the Tehama County Board of Supervisors, support your efforts on
H.R. 1586.
Sincerely,
Bill Moule,
Chairman
______
CITY OF REDDING
Redding, California
March 21, 2023
Hon. Doug LaMalfa, U.S. Representative
408 Cannon House Office Building
Washington, DC 20515
Re: Support for H.R. 1586, Forest Protection and Wildland Firefighter
Safety Act of 2023
Dear Congressman LaMalfa:
We are pleased to announce the City of Redding's support for H.R.
1586, Forest Protection and Wildland Firefighter Safety Act of 2023. We
appreciate your leadership on this critical issue and that the
legislation has strong bipartisan support.
The use of retardant is a vital tool that our firefighters need to
have at their disposal. Providing a Clean Water Act exemption so that
federal, state, local, and tribal firefighting agencies can continue to
use fire retardant is necessary to keep this tool available. Our fire-
prone communities are at risk every year from the threat of wildfire.
It is critical for the survival of our communities, forests, and the
safety of fire crew members to utilize retardant when deemed necessary.
We have seen time and again, using retardant slows the spread of fire,
protect homes, infrastructure, and communities by creating a boundary
line of attack for fire crews.
It is imperative that we maintain our ability to fight wildfires
effectively. Limiting firefighting agencies' ability to slow fires will
harm forest conservation, endangered species protection, historic site
preservation, and our mission to protect nearby residents.
Whether dropped from a plane, sprayed from a tanker truck, or hand
applied by private homeowners, retardant is a tool that keeps our
communities safe and our watersheds from being destroyed by damaging
catastrophic wildfires. In the wildland-urban interface, we need this
tool to protect critical infrastructure and human life.
We support your efforts on H.R. 1586.
Sincerely,
Michael P. Dacquisto,
Mayor
______
JEFFERSON RESOURCE COMPANY
March 17, 2023
Hon. Doug LaMalfa, U.S. Representative
408 Cannon House Office Building
Washington, DC 20515
Re: Support for H.R. 1586, Forest Protection and Wildland Firefighter
Safety Act of 2023
Dear Representative LaMalfa:
We are pleased to announce Jefferson Resource Company's support for
H.R. 1586, Forest Protection and Wildland Firefighter Safety Act of
2023. We appreciate your leadership on this critical issue and that the
legislation has strong bi-partisan support.
The use of retardant is a vital tool that our firefighters need to
have at their disposal. Providing a Clean Water Act exemption so that
federal, state, local, and tribal firefighting agencies can continue to
use fire retardant is necessary to keep this tool available. Our fire
prone communities are at risk every year from the threat of wildfire.
It is critical for the survival of our communities, forests, and safety
of fire crew members to utilize retardant when deemed necessary. We
have seen time and again, using retardant slows the spread of fire,
protects homes, infrastructure, and communities by creating a boundary
line of attack for fire crews.
It is imperative that we maintain our ability to fight wildfires
effectively. Limiting firefighting agencies' ability to do so slow
fires will harm forest conservation, endangered species protection,
historic sites preservation, and our mission to protect nearby
residents.
Whether dropped from a plane, sprayed from a tanker truck, or hand
applied by private homeowners, retardant is a tool that keeps our
communities safe and our watersheds from being destroyed from damaging
catastrophic wildfires. In the wildland-urban interface, we need this
tool to protect critical infrastructure and human life.
We support your efforts on H.R. 1586.
Thank you,
Tina Stewart
______
Tim Seeley
March 17, 2023
Hon. Doug LaMalfa, U.S. Representative
408 Cannon House Office Building
Washington, DC 20515
Re: Support for H.R. 1586, Forest Protection and Wildland Firefighter
Safety Act of 2023
Dear Representative LaMalfa:
I am pleased to hear about your diligent navigation of H.R. 1586.
As a registered Democrat, I crossed the aisle and voted for you in the
last election, because I believe you are an exceptional steward of our
environment as a multi-generational, successful Rice Farmer in Butte
County. I trust your judgment to keep our precious natural resources
safe. That is why I'm writing . . . to support H.R. 1586.
During this era of binary, all, or nothing legislation, I am
hopeful all of us can recognize the need to battle wildfires more
effectively. As a CAMP Fire victim of 2018, I know all too well how a
small, localized fire can explode into an uncontrollable fire storm
destroying everything in it's path.
This is the wrong time to limit the use of Fire Retardants as a
tool in combating these wildfires. While it is imperative, we correct
our forest management failures, we cannot remove tools (retardants)
from our firefighting toolbox at this time. If one compares incidental
use of air dropped retardants to minimize a wildfire vs the calamity of
thousands of buildings, vehicles, and toxic materials going up in
smoke, there is no comparison with the potential environmental
destruction.
It is also encouraging to see private enterprise stepping up to
mitigate past issues with the type of retardants used. Perhaps the
``environmentalists'' trying to sue can instead assist in removing the
overabundance of fuels in our forests instead of closing the door on
forest management.
Locking the door on our forests does not make wildfire risk go
away.
Best Regards,
Tim Seeley
______
BUTTE COUNTY FIRE SAFE COUNCIL
March 17, 2023
Hon. Doug LaMalfa, U.S. Representative
408 Cannon House Office Building
Washington, DC 20515
Re: Support for H.R. 1586, Forest Protection and Wildland Firefighter
Safety Act of 2023
Dear Representative LaMalfa:
We are pleased to announce Butte County Fire Safe Council's support
for H.R. 1586, Forest Protection and Wildland Firefighter Safety Act of
2023. We appreciate your leadership on this critical issue and that the
legislation has strong bi-partisan support.
The use of retardant is a vital tool that our firefighters need to
have at their disposal. Providing a Clean Water Act exemption so that
federal, state, local, and tribal firefighting agencies can continue to
use fire retardant is necessary to keep this tool available. Our fire
prone communities are at risk every year from the threat of wildfire.
It is critical for the survival of our communities, forests, and safety
of fire crew members to utilize retardant when deemed necessary. We
have seen time and again, using retardant slows the spread of fire,
protects homes, infrastructure, and communities by creating a boundary
line of attack for fire crews.
It is imperative that we maintain our ability to fight wildfires
effectively. Limiting firefighting agencies' ability to do so slow
fires will harm forest conservation, endangered species protection,
historic sites preservation, and our mission to protect nearby
residents.
Whether dropped from a plane, sprayed from a tanker truck, or hand
applied by private homeowners, retardant is a tool that keeps our
communities safe and our watersheds from being destroyed from damaging
catastrophic wildfires. In the wildland-urban interface, we need this
tool to protect critical infrastructure and human life.
We support your efforts on H.R. 1586.
Thank you,
Darrel Wilson,
Board Chairman
______
WESTERN SHASTA RESOURCE CONSERVATION DISTRICT
Anderson, California
March 20, 2023
Hon. Doug LaMalfa, U.S. Representative
408 Cannon House Office Building
Washington, DC 20515
Re: Support for H.R. 1586, Forest Protection and Wildland Firefighter
Safety Act of 2023
Dear Representative LaMalfa:
We are pleased to announce the Western Shasta Resource Conservation
District's support for H.R. 1586, Forest Protection and Wildland
Firefighter Safety Act of 2023. We appreciate your leadership on this
critical issue and that the legislation has strong bi-partisan support.
The use of retardant is a vital tool that wildland firefighters
need to have at their disposal. Providing a Clean Water Act exemption
so that federal, state, local, and tribal firefighting agencies can
continue to use fire retardant is necessary to keep this tool
available. The catastrophic wildfires that our District has experienced
over the past several years have severely impacted our forests and
removing this critical fire suppression tool will put the remaining
forests in extreme risk.
Beyond the risk to our forests and watersheds, fire prone
communities throughout the District are at risk every year from the
threat of wildfire. It is critical for the survival of these
communities and for the safety of fire crew members to utilize
retardant when deemed necessary. We have seen time and again, using
retardant slows the spread of fire, protects homes, infrastructure, and
communities by creating a boundary line of attack for fire crews.
It is imperative that we maintain our ability to fight wildfires
effectively. Limiting firefighting agencies' ability to slow fires will
harm forest conservation, endangered species protection, historic sites
preservation, and our mission to protect nearby residents. Whether
dropped from a plane, sprayed from a tanker truck, or hand applied by
private homeowners, retardant is a tool that keeps our communities safe
and our watersheds from being destroyed from damaging catastrophic
wildfires. In the wildland--urban interface, we need this tool to
protect critical infrastructure and human life.
We support your efforts on H.R. 1586.
Sincerely,
Maureen Teubert,
District Manager
______
AMERICAN MOTORCYCLISTS ASSOCIATION
District 36
Cottonwood, California
March 20, 2023
Hon. Doug LaMalfa, U.S. Representative
408 Cannon House Office Building
Washington, DC 20515
Re: Support for H.R. 1586, Forest Protection and Wildland Firefighter
Safety Act of 2023
Dear Representative LaMalfa:
On behalf of our 4,000 members who live, work, and recreate on
public and private lands in Northern California, the American
Motorcyclists Association District 36 is honored to announce our
support for H.R. 1586, Forest Protection and Wildland Firefighter
Safety Act of 2023. We appreciate your leadership on this critical
issue and that the legislation has strong bi-partisan support.
As a core-team member for a forest health collaborative in the
north state, I have seen lives and homes protected from being destroyed
by wildfires because state and federal fire agencies were able to use
retardant in a timely manner. Often those retardant air drops are
danger-close and those homes are saved by heroic firefighters on the
ground and pilots flying tankers.
On a personal note, my home west of Cottonwood and other homes in
my neighborhood were saved when CALFIRE air tankers made precision
drops of retardant just a hundred yards from my home in the fall of
2021.
Thanks for your efforts on H.R. 1586 they are greatly appreciated.
Best regards,
Don Amador,
Director
______
FOREST LANDOWNERS ASSOCIATION
Carrollton, Georgia
March 21, 2023
Hon. Doug LaMalfa, U.S. Representative
408 Cannon House Office Building
Washington, DC 20515
Dear Representative LaMalfa:
As the sole national representative for our country's family forest
landowners, we are thrilled to announce our support for H.R. 1586, the
Forest Protection and Wildland Firefighter Safety Act of 2023.
The largest threat to the domestic timber supply is the increasing
number of natural disasters including hurricanes, wildfires, tornados
and damaging thunderstorms. This bipartisan legislation would protect
firefighters' ability to protect landowners by using a critical tool in
their arsenal to combat wildfires. It is imperative that we enhance
rather than hinder the resources to keep our private working forests
operating so they can provide the clean air, pure water, and quality
jobs that our nation depends on.
Thank you for your commitment to our nation's forest landowners. We
look forward to working with you on more commonsense pieces of
legislation this Congress.
Sincerely,
Scott Jones,
CEO
______
OVERWATCH AERO, LLC
Solvang, California
March 21, 2023
Hon. Doug LaMalfa, U.S. Representative
408 Cannon House Office Building
Washington, DC 20515
Re: Support for H.R. 1586, Forest Protection and Wildland Firefighter
Safety Act of 2023
Dear Representative LaMalfa:
We are pleased to announce Overwatch Aero's support for H.R. 1586,
Forest Protection and Wildland Firefighter Safety Act of 2023. As a
provider of Type 1 unmanned aerial system (UAS) services in support of
wildfires, Overwatch Aero has witnessed first-hand the destruction of
these large wildfires--and we are in support of providing the best
tools possible to the firefighting crews working to stop these
conflagrations. We appreciate your leadership on this critical issue
and that the legislation has strong bi-partisan support.
The use of retardant is a vital tool that our firefighters need to
have at their disposal. Providing a Clean Water Act exemption so that
federal, state, local, and tribal firefighting agencies can continue to
use fire retardant is necessary to keep this tool available. Our fire
prone communities are at risk every year from the threat of wildfire.
It is critical for the survival of our communities, forests, and safety
of fire crew members to utilize retardant when deemed necessary. We
have seen time and again, using retardant slows the spread of fire,
protects homes, infrastructure, and communities by creating a boundary
line of attack for fire crews.
It is imperative that we maintain our ability to fight wildfires
effectively. Limiting firefighting agencies' ability to do so slow
fires will harm forest conservation, endangered species protection,
historic sites preservation, and our mission to protect nearby
residents.
Whether dropped from a plane, sprayed from a tanker truck, or hand
applied by private homeowners, retardant is a tool that keeps our
communities safe and our watersheds from being destroyed from damaging
catastrophic wildfires. In the wildland-urban interface, we need this
tool to protect critical infrastructure and human life.
We support your efforts on H.R. 1586.
Kind Regards,
Jordan Hahn,
Chief Executive Officer
______
NATIONAL WILDFIRE SUPPRESSION ASSOCIATION
Mill City, Oregon
March 21, 2023
Hon. Doug LaMalfa, U.S. Representative
408 Cannon House Office Building
Washington, DC 20515
Hon. Jimmy Panetta, U.S. Representative
304 Cannon House Office Building
Washington, DC 20515
Dear Representatives LaMalfa and Panetta:
We are writing this letter of support to you regarding the Forest
Protection and Wildland Firefighter Safety Act of 2023.
Our organization represents three hundred and twenty-six (326)
member companies who supply ``boots on the ground'' resources to the
agencies to assist with wildfire suppression efforts nationwide. That
is a workforce of over sixteen thousand (16,000) available to help in
this effort.
Firefighter Safety is of utmost importance to our industry, and the
ability for the agencies to be able to utilize retardant as another
tool we believe that they should have access too.
We would urge members of congress to support this legislation
effective immediately as with wildfire season approaching, we need all
the tools available to us. By doing so you will demonstrate your
commitment to protecting lives, property, and our natural resources.
If you would like any additional information on this important
legislation, please let us know.
Sincerely,
Deborah Miley,
Executive Director
______
LAKE MADRONE WATER DISTRICT
Oroville, California
March 20, 2023
Hon. Doug LaMalfa, U.S. Representative
408 Cannon House Office Building
Washington, DC 20515
Re: Support for H.R. 1586, Forest Protection and Wildland Firefighter
Safety Act of 2023
Dear Representative LaMalfa:
We are pleased to announce LMWD's support for H.R. 1586, Forest
Protection and Wildland Firefighter Safety Act of 2023. We appreciate
your leadership on this critical issue and that the legislation has
strong bi-partisan support.
The use of retardant is a vital tool that our firefighters need to
have at their disposal. Providing a Clean Water Act exemption so that
federal, state, local, and tribal firefighting agencies can continue to
use fire retardant is necessary to keep this tool available. Our fire
prone communities are at risk every year from the threat of wildfire.
It is critical for the survival of our communities, forests, and safety
of fire crew members to utilize retardant when deemed necessary. We
have seen time and again, using retardant slows the spread of fire,
protects homes, infrastructure, and communities by creating a boundary
line of attack for fire crews.
It is imperative that we maintain our ability to fight wildfires
effectively. Limiting firefighting agencies' ability to do so slow
fires will harm forest conservation, endangered species protection,
historic sites preservation, and our mission to protect nearby
residents.
Whether dropped from a plane, sprayed from a tanker truck, or hand
applied by private homeowners, retardant is a tool that keeps our
communities safe and our watersheds from being destroyed from damaging
catastrophic wildfires. In the wildland-urban interface, we need this
tool to protect critical infrastructure and human life.
We support your efforts on H.R. 1586.
Thank you,
Dr. Jess C. Vickery, Professor
Academic Senate President, Butte College;
President and Chairman, Lake Madrone Water District
______
CITY OF BIGGS
Biggs, California
March 15, 2023
Hon. Doug LaMalfa, U.S. Representative
408 Cannon House Office Building
Washington, DC 20515
Dear Congressman LaMalfa:
I write to express support for H.R. 1586--the Forest Protection and
Wildland Firefighter Safety Act of 2023.
Wildfires impact the City of Biggs in many ways. We have witnessed
several fires originating on Federal Lands that have displaced people
and destroyed property in the last 5 years. The Forest Service needs to
do more to stop catastrophic wildfires in California.
I wish to express support for H.R. 1586 to exempt firefighting from
potential Clean Water Act regulations for federal, state, local, and
tribal firefighting agencies.
Fire retardant is an essential tool used to contain or slow the
spread of wildfires. Currently the Forest Service and other agencies
are operating under the assumption that a National Pollutant Discharge
Elimination System (NPDES) permit is not required for the use of fire
retardant because the regulations specifically state that fire control
is a ``non-point source silvicultural activity'' and communications
from EPA dating back to 1993 indicate a permit is not required.
Sincerely,
Josh Cook
______
CITY OF ANDERSON
Anderson, California
March 20, 2023
Hon. Doug LaMalfa, U.S. Representative
408 Cannon House Office Building
Washington, DC 20515
Re: Support for H.R. 1586, Forest Protection and Wildland Firefighter
Safety Act of 2023
Dear Representative LaMalfa:
We are pleased to announce the City of Anderson's support for H.R.
1586, Forest Protection and Wildland Firefighter Safety Act of 2023. We
appreciate your leadership on this critical issue and that the
legislation has strong bi-partisan support.
The use of retardant is a vital tool that our firefighters need to
have at their disposal. Providing a Clean Water Act exemption so that
federal, state, local, and tribal firefighting agencies can continue to
use fire retardant is necessary to keep this tool available. Our fire
prone communities are at risk every year from the threat of wildfire.
It is critical for the survival of our communities, forests, and safety
of fire crew members to utilize retardant when deemed necessary. We
have seen time and again, using retardant slows the spread of fire,
protects homes, infrastructure, and communities by creating a boundary
line of attack for fire crews.
It is imperative that we maintain our ability to fight wildfires
effectively. Limiting firefighting agencies' ability to do so slow
fires will harm forest conservation, endangered species protection,
historic sites preservation, and our mission to protect nearby
residents.
Whether dropped from a plane, sprayed from a tanker truck, or hand
applied by private homeowners, retardant is a tool that keeps our
communities safe and our watersheds from being destroyed from damaging
catastrophic wildfires. In the wildland-urban interface, we need this
tool to protect critical infrastructure and human life.
Sincerely,
Mike Gallagher,
Mayor
______
LASSEN COUNTY
Board of Supervisors
Susanville, California
March 21, 2023
Hon. Doug LaMalfa, U.S. Representative
408 Cannon House Office Building
Washington, DC 20515
Re: Support for H.R. 1586, Forest Protection and Wildland Firefighter
Safety Act of 2023
Dear Representative LaMalfa:
On behalf of the Lassen County Board of Supervisors, I write in
support for H.R. 1586, Forest Protection and Wildland Firefighter
Safety Act of 2023. We appreciate your leadership on this critical
issue and that the legislation has strong bi-partisan support.
The use of retardant is a vital tool that our firefighters need to
have at their disposal. Providing a Clean Water Act exemption so that
federal, state, local, and tribal firefighting agencies can continue to
use fire retardant is necessary to keep this tool available. Our fire
prone communities are at risk every year from the threat of wildfire.
It is critical for the survival of our communities, forests, and safety
of fire crew members to utilize retardant when deemed necessary. We
have seen time and again, using retardant slows the spread of fire,
protects homes, infrastructure, and communities by creating a boundary
line of attack for fire crews.
It is imperative that we maintain our ability to fight wildfires
effectively. Limiting firefighting agencies' ability to do so slow
fires will harm forest conservation, endangered species protection,
historic sites preservation, and our mission to protect nearby
residents. Whether dropped from a plane, sprayed from a tanker truck,
or hand applied by private homeowners, retardant is a tool that keeps
our communities safe and our watersheds from being destroyed from
damaging catastrophic wildfires. In the wildland-urban interface, we
need this tool to protect critical infrastructure and human life.
We support your efforts on H.R. 1586.
Sincerely,
Gary Bridges,
Chairman
______
SHASTA COUNTY FIRE SAFE COUNCIL
Palo Cedro, California
March 21, 2023
Hon. Doug LaMalfa, U.S. Representative
408 Cannon House Office Building
Washington, DC 20515
Re: Support for H.R. 1586, Forest Protection and Wildland Firefighter
Safety Act of 2023
Dear Representative LaMalfa:
We are pleased to announce Shasta County Fire Safe Council's
support for H.R. 1586, Forest Protection and Wildland Firefighter
Safety Act of 2023. We appreciate your leadership on this critical
issue and that the legislation has strong bi-partisan support.
The use of retardant is a vital tool that our firefighters need to
have at their disposal. Providing a Clean Water Act exemption so that
federal, state, local, and tribal firefighting agencies can continue to
use fire retardant is necessary to keep this tool available. Our fire
prone communities are at risk every year from the threat of wildfire.
It is critical for the survival of our communities, forests, and safety
of fire crew members to utilize retardant when deemed necessary. We
have seen time and again, using retardant slows the spread of fire,
protects homes, infrastructure, and communities by creating a boundary
line of attack for fire crews.
It is imperative that we maintain our ability to fight wildfires
effectively. Limiting firefighting agencies' ability to do so slow
fires will harm forest conservation, endangered species protection,
historic sites preservation, and our mission to protect nearby
residents. Whether dropped from a plane, sprayed from a tanker truck,
or hand applied by private homeowners, retardant is a tool that keeps
our communities safe and our watersheds from being destroyed from
damaging catastrophic wildfires. In the wildland-urban interface, we
need this tool to protect critical infrastructure and human life.
We support your efforts on H.R. 1586.
Sincerely,
Pamela Bates,
Executive Director
______
UNITED AERIAL FIREFIGHTERS ASSOCIATION
Statement for the Record
on Fire Retardant Lawsuit
March 14, 2023
The following statement from United Aerial Firefighters Association
(UAFA) President John Gould reflects the opinion of its board of
directors with respect to the ongoing retardant lawsuit between Forest
Service Employees for Environmental Ethics (FSEEE) vs. United States
Forest Service, as well as a call for Congressional action:
``UAFA notes with increasing concern the potential for a federal
court to impose a restraining order against the use of aerially applied
fire retardant as early as this coming fire season. Fire retardant is a
proven, essential tool in assisting wildland firefighters in their
fight to contain, control and defeat wildfire. As this lawsuit
continues, with the potential to run into its second year, UAFA
strongly supports Congressman LaMalafa's legislation, the Forest
Protection and Wildland Firefighter Safety Act of 2023, which allows
the federal, states, and tribal governments to continue the use of
aerially applied fire retardants.''
______
THE ANALYTICAL MOOSE
March 18, 2023
Hon. Doug LaMalfa, U.S. Representative
408 Cannon House Office Building
Washington, DC 20515
Re: Support for H.R. 1586, Forest Protection and Wildland Firefighter
Safety Act of 2023
Dear Representative LaMalfa:
We are pleased to announce The Analytical Moose's support for H.R.
1586, Forest Protection and Wildland Firefighter Safety Act of 2023. We
appreciate your leadership on this critical issue and that the
legislation has strong bi-partisan support.
The use of retardant is a vital tool that our firefighters need to
have at their disposal. Providing a Clean Water Act exemption so that
federal, state, local, and tribal firefighting agencies can continue to
use fire retardant is necessary to keep this tool available. Our fire
prone communities are at risk every year from the threat of wildfire.
It is critical for the survival of our communities, forests, and safety
of fire crew members to utilize retardant when deemed necessary. We
have seen time and again, using retardant slows the spread of fire,
protects homes, infrastructure, and communities by creating a boundary
line of attack for fire crews.
It is imperative that we maintain our ability to fight wildfires
effectively. Limiting firefighting agencies' ability to do so slow
fires will harm forest conservation, endangered species protection,
historic sites preservation, and our mission to protect nearby
residents.
Whether dropped from a plane, sprayed from a tanker truck, or hand
applied by private homeowners, retardant is a tool that keeps our
communities safe and our watersheds from being destroyed from damaging
catastrophic wildfires. In the wildland-urban interface, we need this
tool to protect critical infrastructure and human life.
We support your efforts on H.R. 1586.
Thank you,
Rachael Brady
______
NATIONAL ASSOCIATION OF STATE FORESTERS
Washington, DC
March 22, 2023
Hon. Tom Tiffany, Chair
Hon. Joe Neguse, Ranking Member
U.S. House of Representatives
Committee on Natural Resources
1324 Longworth House Office Building
Washington, DC 20515
Dear Chairman Tiffany and Ranking Member Neguse:
The National Association of State Foresters (NASF) writes to you
today in support of the bipartisan effort led by Representatives
LaMalfa (R-CA) and Panetta (D-CA) to introduce H.R. 1586, the Forest
Protection and Wildland Firefighter Safety Act of 2023.
NASF represents the directors of the forestry agencies in all 50
states, five U.S. territories, three nations in compacts of free
association with the U.S., and the District of Columbia. State
foresters deliver technical and financial assistance to private
landowners, along with protection of forest health and water resources
for more than two-thirds of the nation's forests, as well as promote
the stewardship of urban and community forests of all sizes across the
country. We also partner with federal land management agencies through
cooperative agreements and Good Neighbor Authority to manage national
forests and to deliver programs outlined in the Bipartisan
Infrastructure Law and Inflation Reduction Act such as the recently
announced Community Wildfire Defense Grants. While the duties of state
agencies vary from state to state, all share common forest management
and protection missions and most have statutory responsibilities to
provide wildland fire protection on all lands, public and private.
In 2022, roughly 70,000 wildland fires burned more than 7.5 million
acres.\1\ State and local agencies respond to the majority of wildfires
across the country; in 2022 state and local agencies were responsible
for responding to 57,492 (83%) of the 69,988 reported wildfires across
all jurisdictions.\2\ State forestry agencies contribute a significant
portion of the overall wildland fire suppression effort nationally in
terms of resources, personnel, capacity, and funds.
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\1\ National Interagency Fire Center, Historical Wildland Fire
Summaries, Last accessed March 14, 2023 at https://www.nifc.gov/fire-
information/statistics/wildfires
\2\ Id.
---------------------------------------------------------------------------
Attacking wildfires when they are small is the key to reducing
fatalities, injuries, loss of homes, and cutting federal, state and
local fire-fighting costs. This national principle is extremely
important to state foresters that are responsible for protecting over
60% of the nations' forests. Often the use of fire retardants and/or
foam is the only practical way to reduce wildfire intensities and rate
of spread until units on the ground can safely take suppression action.
Continuing the use of fire retardants and/or foam is essential for
firefighter and public safety. In some instances, it is the only tool
that will allow firefighters to accomplish the job safely.
Eliminating this tool from the toolbox will severely reduce the
efficacy of interagency suppression capabilities and will accelerate
risk to the public. Adequate protection of communities, life and
property, and critical infrastructure such as major communication and
power line facilities through continued aerial application of fire
retardant is a critical need that should continue to be recognized.
State and federal agencies rely on aviation contracts for air
tankers and helicopters that aerially deliver fire retardants and/or
foam. If state and federal agencies are not able to utilize aerially
delivered fire retardants and/or foam, interagency wildfire suppression
efforts will be severely impacted by the loss of this valuable fire
suppression tool which could significantly increase the threat and risk
to life and property.
State foresters believe continuing the use of fire retardants and/
or foam, in aerial fire suppression activities, is essential for
firefighter and public safety.
Sincerely,
Kacey KC,
NASF President
Nevada State Forester
______
NATIONAL ASSOCIATION OF COUNTIES
Washington, DC
March 22, 2023
Hon. Doug LaMalfa, U.S. Representative
408 Cannon House Office Building
Washington, DC 20515
Hon. Jimmy Panetta, U.S. Representative
304 Cannon House Office Building
Washington, DC 20515
Dear Representatives LaMalfa and Panetta:
On behalf of the National Association of Counties (NACo), the only
organization representing the nation's 3,069 counties, parishes, and
boroughs, I write to express support for H.R. 1586, the Forest
Protection and Wildland Firefighter Safety Act. Thank you for your
leadership in introducing legislation to protect forests and
communities from catastrophic wildfire by creating a Clean Water Act
(CWA) exemption for federal, state, local, and tribal firefighting
agencies to use fire retardant to fight wildfires.
Fire retardant is essential to contain and combat wildfires. Land
management agencies have operated since 1993 under the assumption that
a National Pollutant Discharge Elimination System (NPDES) permit is not
required for the use of fire retardant because regulations specifically
state that fire control is a ``non-point source silvicultural
activity.''
Unfortunately, a recent lawsuit against the Forest Service attempts
to require a NPDES permit under the CWA to use fire retardant. The
plaintiffs also request an injunction on the use of fire retardant
until the Forest Service receives this permit, which could take years.
If the injunction is granted and fire retardant is not available for
use in 2023, the risk to the environment, economies and livelihoods of
forested communities will be immense, as wildfires have been increasing
in size, duration and destruction to communities, reaching crisis-level
conditions. This would further jeopardize water supplies by requiring
agencies to use limited, existing water sources to combat fires without
the benefit of retardant drops, while also increasing the risk of fire
spreading to the very watersheds supplying national forest counties.
H.R. 1586 would prevent this catastrophic outcome by ensuring
firefighting agencies are not subject to this unnecessary level of
regulation, especially in emergency situations. Agency directives
prohibit the direct delivery of fire retardant into waterbodies or
surrounding buffer zones except to protect life and safety. Between
2012 and 2019, out of 56,868 total retardant drops, only 376 (less than
one percent) were directly into the water, due to either misapplication
or to protect life and safety. This lawsuit is a solution in search of
a problem. H.R. 1586 would stop this lawsuit from jeopardizing our
environment and communities.
NACo stands ready to work with you to reduce the risk of
catastrophic wildfire and protect communities. Counties encourage swift
passage of the Forest Protection and Wildland Firefight Safety Act.
Sincerely,
Matthew D. Chase,
Executive Director
______
YANKEE HILL FIRE SAFE COUNCIL
Yankee Hill, California
March 21, 2023
Hon. Doug LaMalfa, U.S. Representative
408 Cannon House Office Building
Washington, DC 20515
Dear Congressman LaMalfa:
The Yankee Hill Fire Safe Council is writing to you in support of
your bipartisan bill, H.R. 1586--the Forest Protection and Wildland
Firefighter Safety Act of 2023. We are a small nonprofit serving the
community of Concow/Yankee Hill located in the Sierra Nevada foothills
of Butte County, an area that has extensive history in experiencing
wildland fires. Our community is surrounded and peppered by public
lands and we understand how frequently they are litigated by
environmental groups, when they are working to provide a necessary
service for community protection. It is our mission to educate the
community and increase awareness to fire risks; reduce wildfire fuel
loading, conserve natural resources, participate in fire recovery
efforts and prepare for other disasters.
The Yankee Hill Fire Safe Council believes it is imperative for the
Forest Service and other agencies to continue to operate under the
assumption National Pollutant Discharge Elimination System (NPDES)
permit is not required for the use of fire retardant for fire control
purposes. It is our understanding that fire control is a ``non-point
source silvicultural activity'' and communications dating back to 1993
from EPA indicated a permit is not required. Therefore, we are in
support of bill H.R. 1586 to allow the use of fire retardant under an
emergency response to a threatening wildfire putting our firefighters,
public, infrastructure at risk.
We must be able to fight wildfires with all the resources available
to lessen the impact of forested land and our communities.
Thank you kindly,
Brenda Rightmyer,
Managing Director
______
SACRAMENTO METROPOLITAN FIRE DISTRICT
Mather, California
March 22, 2023
Hon. Doug LaMalfa, Congressman
408 Cannon House Office Building
Washington, DC 20515
Re: SUPPORT--H.R. 1586, Forest Protection and Wildland Firefighter
Safety Act of 2023
Dear Congressman LaMalfa:
I write today in support of H.R. 1586 Forest Protection and
Wildland Firefighter Safety Act of 2023. This important piece of
legislation will help ensure that vital tools and tactics remain
available for fire suppression across the State of California, and
indeed our entire nation.
At a time when nine out of the top ten largest California wildfires
have occurred within the past decade,\1\ it is critical for the
protection of life, the defense of property, and the safety of our
first responders and the public alike that fire retardant remain
available for use when facing these catastrophic flames. Without the
availability of retardant, fire behavior can be drastically increased
and many more acres become threatened or lost.
---------------------------------------------------------------------------
\1\ CAL FIRE: Top 20 Largest California Wildfires (10/24/2022)
H.R. 1586--and the companion Forest Protection and Wildland
Firefighter Safety Act of 2023 in the U.S. Senate--serves an essential
role by clarifying that fire retardant remains a readily accessible and
viable option for Federal, State, Local, and Tribal entities when used
---------------------------------------------------------------------------
in connection for fire suppression, control, or prevention.
For these reasons, Sacramento Metropolitan Fire District supports
H.R. 1586, and urges you and your colleagues to support this important
piece of legislation.
Thank you for your consideration,
Dan Haverty,
Interim Fire Chief
______
CALIFORNIA FARM BUREAU
Sacramento, California
March 22, 2023
Hon. Doug LaMalfa, U.S. Representative
408 Cannon House Office Building
Washington, DC 20515
Re: Support for H.R. 1586, Forest Protection and Wildland Firefighter
Safety Act of 2023
Dear Representative LaMalfa:
The California Farm Bureau appreciates the opportunity to provide
comments in support of H.R. 1586, the Forest Protection and Wildland
Firefighter Safety Act of 2023.
California Farm Bureau is California's largest farm organization,
representing approximately 28,000 agricultural, associate, and
collegiate members in 56 counties. Farm Bureau strives to protect and
improve the ability of farmers, ranchers, and foresters engaged in
production agriculture to provide a reliable, safe, and affordable
supply of food and fiber through responsible stewardship of our natural
resources.
Given the recent history of catastrophic wildfire across the
western United States, California Farm Bureau strongly supports the
retention of essential wildfire prevention, mitigation, and suppression
tools. The Forest Protection and Wildland Firefighter Safety Act of
2023 provides a critical Clean Water Act exemption that would ensure
federal, state, local, and tribal firefighting entities may continue
the use of fire retardant during wildfire incidents.
An essential suppression tool, fire retardant both slows the spread
of wildfire and creates a boundary line of attack for fire crews. This
helps provide protection for rural communities especially those in the
wildland urban interface. Additionally, the use of retardant improves
firefighter safety and helps safeguard the many important social and
ecological values of our forests including timber resources, wildlife,
historic sites, and watersheds.
Currently, the U.S. Forest Service and other agencies are operating
under the assumption that a National Pollutant Discharge Elimination
System permit is not required for the use of fire retardant because
regulations specifically state that fire control is a non-point source
silvicultural activity. Historical communications between the Forest
Service and the U.S. Environmental Protection Agency also indicate a
permit is not required. The continued use of retardant in effective
fire suppression is of great importance to California Farm Bureau
members. Given the length of time it would take for the Forest Service
to obtain such a permit, California Farm Bureau is currently
participating in litigation to allow for the ongoing use of fire
retardant.
The provisions of the Forest Protection and Wildland Firefighter
Safety Act of 2023 are urgently important for the 2023 fire year.
California Farm Bureau greatly appreciates your bipartisan approach and
leadership on this critical issue.
Sincerely,
Jamie Johansson,
President
______
CALIFORNIA WOMEN FOR AGRICULTURE
Sacramento, California
March 20, 2023
Hon. Doug LaMalfa, U.S. Representative
408 Cannon House Office Building
Washington, DC 20515
Dear Representative LaMalfa:
California Women for Agriculture supports passage the bipartisan
bill, H.R. 1586--the Forest Protection and Wildland Firefighter Safety
Act of 2023.
H.R. 1586 creates a Clean Water Act exemption for federal, state,
local, and tribal firefighting agencies to use fire retardants to fight
wildfires. Fire retardant is essential to contain or slow the spread of
wildfires. However, currently, the Forest Service and other agencies
are operating under the assumption that a National Pollutant Discharge
Elimination System (NPDES) permit is not required for the use of fire
retardant because the regulations specifically state that fire control
is a ``non-point source silvicultural activity'' and communications
from EPA dating back to 1993 indicated a permit is not required.
Wildland fires have been devastating to California destroying
forests, towns, and croplands. People have died in our state because of
these fires. If not for the aerial use of fire retardants, these fires
would have been even more deadly and destructive. This bill is needed
because an environmentalist group is suing the Forest Service under the
Clean Water Act to require an NPDES permit to use fire retardant. They
have requested an injunction on using fire retardant until the Forest
Service receives this permit, which could take years. If the injunction
is granted and fire retardant is unavailable in the 2023 fire year,
firefighters and individuals living in forested communities would be in
greater danger, with millions of acres of forested land and billions of
dollars of infrastructure would be at risk.
We must be able to fight wildfires with everything we have.
Limiting firefighting agencies' ability to do so flies in the face of
forest conservation and our mission to protect residents.
Sharron Zoller,
President
______
AMERICAN AGRI-WOMEN
March 20, 2023
Hon. Doug LaMalfa, U.S. Representative
408 Cannon House Office Building
Washington, DC 20515
Dear Representative LaMalfa:
American Agri-Women supports the bipartisan bill, H.R. 1586--the
Forest Protection and Wildland Firefighter Safety Act of 2023.
H.R. 1586 creates a Clean Water Act exemption for federal, state,
local, and tribal firefighting agencies to use fire retardants to fight
wildfires. As you know, fire retardant is essential to contain or slow
the spread of wildfires. However, currently, the Forest Service and
other agencies are operating under the assumption that a National
Pollutant Discharge Elimination System (NPDES) permit is not required
for the use of fire retardant because the regulations specifically
state that fire control is a ``non-point source silvicultural
activity'' and communications from EPA dating back to 1993 indicated a
permit is not required.
Wildland fires have devastated our Western States. They have
destroyed forests, towns, croplands, wildlife, and most tragically,
human lives. If not for the aerial use of fire retardants, these fires
would have been even more deadly and destructive. This bill is needed
because an environmentalist group is suing the Forest Service under the
Clean Water Act to require an NPDES permit to use fire retardant. They
have requested an injunction on using fire retardant until the Forest
Service receives this permit, which could take years. If the injunction
is granted and fire retardant is unavailable in the 2023 fire year,
firefighters and individuals living in forested communities would be in
greater danger. Millions of acres of forested land and billions of
dollars of infrastructure would be at risk.
We must be able to fight wildfires with everything we have.
Limiting firefighting agencies' ability to do so contradicts forest
conservation.
Respectfully,
Heather Hampton-Knodle,
President
______
YUBA WATER AGENCY
Marysville, California
March 22, 2023
Hon. Doug LaMalfa, U.S. Representative
408 Cannon House Office Building
Washington, DC 20515
Re: SUPPORT--H.R. 1586, Forest Protection and Wildland Firefighter
Safety Act of 2023
Dear Representative LaMalfa:
On behalf of Yuba Water Agency (Yuba Water), I am writing to
communicate our support for H.R. 1586, the Forest Protection and
Wildland Firefighter Safety Act of 2023. Yuba Water was established by
the State of California in 1959 to develop and promote the beneficial
use and regulation of the water resources of Yuba County. Our agency is
rooted in California's headwaters, and the health of our watershed, the
safety of the communities we serve, and the protection of our critical
water management infrastructure are all directly linked to the forests
that make up a significant portion of the Yuba River watershed.
HR 1586 will provide a Clean Water Act exemption for fire
retardants so that federal, state, local, and tribal firefighting
agencies will continue to have this important tool available for their
use. Our fire prone communities are at risk every year from the threat
of wildfire. It is critical for our communities, watershed, and the
safety of fire crew members that retardants are available for use when
deemed necessary. The appropriate use of retardant can mitigate the
risk of catastrophic wildfires and protect homes, infrastructure, and
communities by creating a boundary line of attack for fire crews.
Whether dropped from a plane, sprayed from a tanker truck, or hand
applied by private homeowners, retardant is a tool that can help keep
our communities safe and our watersheds from being destroyed by
catastrophic wildfires.
We appreciate your leadership on this critical issue and that the
fact that H.R. 1586 has strong bipartisan support.
Sincerely,
Willie Whittlesey,
General Manager
______
INTERNATIONAL ASSOCIATION OF FIRE CHIEFS
and
NATIONAL SPECIAL DISTRICTS COALITION
March 22, 2023
Hon. Doug LaMalfa, U.S. Representative
408 Cannon House Office Building
Washington, DC 20515
Dear Representative LaMalfa:
On behalf of the approximately 11,000 members of the International
Association of Fire Chiefs (IAFC) and National Special Districts
Coalition (NSDC) consisting of over 1,000 members providing fire
protection services, we express our support for the Forest Protection
and Wildland Firefighter Safety Act (H.R. 1586). The IAFC and NSDC
support this legislation, because it will protect an important tool for
fighting wildland fires and protecting communities from their
destructive force.
The nation continues to face a costly threat from wildland fires.
In 2021, there were approximately 59,000 fires burning more than 7.1
million acres, which resulted in approximately $4.4 billion in only
federal wildland fire expenses. Besides the cost to federal, state,
tribal, and local agencies, these fires destroy homes, devastate
capacity for critical services, and threaten Americans' livelihoods.
Fire retardants are important tools for fighting wildland fires.
They can slow the spread of flames and reduce their intensity. By using
fire retardants, federal, state, tribal, and local agencies can buy
time to evacuate communities, protect structures, and send resources to
fight a growing wildland fire. In order to protect the environment, the
U.S. Forest Service (USFS) uses retardant avoidance areas to prevent
pollution in waterways. When these avoidance areas were created, they
resulted in approximately 30 percent of USFS lands becoming off-limits
for fire retardant use.
H.R. 1586 would protect the use of this critical tool. The bill
would authorize the U.S. Secretaries of Interior and Agriculture to
``discharge a fire retardant, chemical, or water for fire suppression,
control, or prevention activities.'' It also would waive the need of a
permit for similar activities by the USFS, National Park Service,
Bureau of Land Management, U.S. Fish and Wildlife Service, Bureau of
Indian Affairs, Federal Emergency Management Agency; states, fire
districts, and localities; and tribal governments.
The IAFC and NSDC urge the House of Representatives to consider and
pass H.R. 1586. The deployment of flame retardants is a critical tool
in fighting wildland fires. Even though the nation currently pays a
huge price in funding, lives, and property due to the growing wildland
fire crises, the loss of the use of flame retardants would foster even
larger fires and cause more devastation for the American people.
Sincerely,
Fire Chief Donna M. Black Neil McCormick
President and Board Chair Chairman
International Assoc. of
Fire Chiefs National Special Districts
Coalition
______
BERRY CREEK FIRE SAFE COUNCIL
Berry Creek, California
March 22, 2023
Dear Madam or Sir:
I, Denise Bethune, am writing this letter in support for
Congressman Doug LaMalfa and H.R. 1586, the Forest Protection and
Wildland Firefighter Safety Act of 2023. I am a community leader in
Berry Creek, a rural foothill area in Northern California. I have great
concern for the safety of the area. This bill is important for
firefighters to have the tools to fight these devastating wildfires.
Berry Creek has experienced the devastation of the Northwest
Complex Wildfire in 2020. The impact has left our community devastated
in its path. Any future communities that are threatened by a wildfire
need to have all resources available to firefighters. This is a
necessity! The safety of life, wildlife, forest, and property must be
the priority. I have personally experienced the loss and destruction of
the Northwest Complex Fire. My home was destroyed. The toxins that are
released from burnt dwellings are more of a threat to the watersheds.
Limiting any resources that help fight wildfires will hinder those
efforts. This could potentially be catastrophic.
Please consider the importance of the bipartisan supported bill,
H.R. 1586--the Forest Protection and Wildland Firefighter Safety Act of
2023. Lives could be dependent on the resources firefighters have
protecting these communities.
Sincerely,
Denise M Bethune,
Chairwoman
______
CITY OF SHASTA LAKE
Shasta Lake, California
March 21, 2023
Hon. Doug LaMalfa, U.S. Representative
408 Cannon House Office Building
Washington, DC 20515
Re: Support for H.R. 1586, Forest Protection and Wildland Firefighter
Safety Act of 2023
Dear Representative LaMalfa:
We are pleased to announce the City of Shasta Lake's support for
H.R. 1586, Forest Protection and Wildland Firefighter Safety Act of
2023. We appreciate your leadership on this critical issue and that the
legislation has strong bi-partisan support.
The use of retardant is a vital tool that our firefighters need to
have at their disposal. Providing a Clean Water Act exemption so that
federal, state, local, and tribal firefighting agencies can continue to
use fire retardant is necessary to keep this tool available. Our fire
prone communities are at risk every year from the threat of wildfire.
It is critical for the survival of our communities, forests, and safety
of fire crew members to utilize retardant when deemed necessary. We
have seen time and again, using retardant slows the spread of fire,
protects homes, infrastructure, and communities by creating a boundary
line of attack for fire crews.
As a City located in a very high fire severity zone, it is
imperative that we maintain our ability to fight wildfires effectively.
Limiting firefighting agencies' ability to do so slow fires will harm
forest conservation, endangered species protection, historic sites
preservation, and our mission to protect nearby residents.
Whether dropped from a plane, sprayed from a tanker truck, or hand
applied by private homeowners, retardant is a tool that keeps our
communities safe and our watersheds from being destroyed from damaging
catastrophic wildfires. In the wildland-urban interface, we need this
tool to protect critical infrastructure and human life.
Very truly yours,
Jessaca Lugo,
City Manager
______
PLACER COUNTY WATER AGENCY
Auburn, California
March 15, 2023
Hon. Doug LaMalfa, U.S. Representative
408 Cannon House Office Building
Washington, DC 20515
Dear Congressman LaMalfa:
The Placer County Water Agency (PCWA) writes in support of H.R.
1586, the Forest Protection and Wildland Firefighter Safety Act of 2023
to create a Clean Water Act exemption for federal, state, local, and
tribal firefighting agencies to use fire retardant to fight wildfires.
This bi-partisan legislation will safeguard that aerial fire retardant
remain a critical means in our firefighting toolbox for protecting our
communities, forests, critical water and energy infrastructure.
PCWA understands first-hand the ability for immediate application
of aerial fire retardants, dropped from air tankers and helicopters, to
halt the spread of life-threatening wildfires in a wildland-urban
interface.
In August 2021, the River Fire started at the Bear River
Campground west of Colfax, California, while the region was
under a Red Flag Warning due to weather and forest fuel
conditions that could result in extreme wildfire behavior.
Aggressive deployment of aerial attack assets (over 24
aircraft and helicopters) employing targeted retardant and
water drops was able to halt the spread of this destructive
wildfire and protect thousands of structures and lives.
During September and October 2022, the Mosquito Fire
consumed over 76,000 acres in the American River watershed
and threatened to destroy the communities of Foresthill and
Georgetown and potentially spread into the Lake Tahoe
Basin. Utilizing of aviation assets for frequent water and
retardant drops protected at-risk communities and critical
water and energy facilities, including PCWA's Middle Fork
and Oxbow powerhouses.
Again, PCWA strongly supports the passage of H.R. 1586 which
recognizes the vital importance of retaining the ability to use fire
retardant to fight wildfires.
Sincerely,
Anthony L. Firenzi, PE
Director of Strategic Affairs
______
COUNTY OF PLACER
BOARD OF SUPERVISORS
Auburn, California
March 17, 2023
Hon. Doug LaMalfa, U.S. Representative
408 Cannon House Office Building
Washington, DC 20515
Re: Support for H.R. 1586, Forest Protection and Wildland Firefighter
Safety Act of 2023
Dear Representative LaMalfa:
I am in full support of your proposed legislation H.R. 1586, Forest
Protection and Wildland Firefighter Safety Act of 2023. I and the
Placer County residents I represent appreciate your leadership on this
critical issue and that the legislation has strong bi-partisan support.
The use of retardant is a vital tool that our firefighters need to
have at their disposal. Providing a Clean Water Act exemption so that
federal, state, local, and tribal firefighting agencies can continue to
use fire retardant is necessary to keep this tool available. Our fire
prone communities are at risk every year from the threat of wildfire.
It is critical for the survival of our communities, forests, and safety
of fire crew members to utilize retardant when deemed necessary. We
have seen time and again, using retardant slows the spread of fire,
protects homes, infrastructure, and communities by creating a boundary
line of attack for fire crews.
It is imperative that we maintain our ability to fight wildfires
effectively. Limiting firefighting agencies' ability to do so slow
fires will harm forest conservation, endangered species protection,
historic sites preservation, and our mission to protect nearby
residents.
Whether dropped from a plane, sprayed from a tanker truck, or hand
applied by private homeowners, retardant is a tool that keeps our
communities safe and our watersheds from being destroyed from damaging
catastrophic wildfires. In the wildland-urban interface, we need this
tool to protect critical infrastructure and human life.
I fully support your efforts on H.R. 1586.
Very Truly Yours,
Suzanne Jones,
District 4 Supervisor
______
GLENN COUNTY BOARD OF SUPERVISORS
Willows, California
March 21, 2023
Hon. Doug LaMalfa, U.S. Representative
408 Cannon House Office Building
Washington, DC 20515
Re: Support for H.R. 1586, Forest Protection and Wildland Firefighter
Safety Act of 2023
Dear Representative LaMalfa:
We are pleased to announce the Glenn County Board of Supervisor's
support for H.R. 1586, Forest Protection and Wildland Firefighter
Safety Act of 2023. We appreciate your leadership on this critical
issue and that the legislation has strong bi-partisan support.
The use of retardant is a vital tool that our firefighters need to
have at their disposal. Providing a Clean Water Act exemption so that
federal, state, local, and tribal firefighting agencies can continue to
use fire retardant is necessary to keep this tool available. Our fire
prone communities are at risk every year from the threat of wildfire.
It is critical for the survival of our communities, forests, and safety
of fire crew members to utilize retardant when deemed necessary. We
have seen time and again, using retardant slows the spread of fire,
protects homes, infrastructure, and communities by creating a boundary
line of attack for fire crews.
It is imperative that we maintain our ability to fight wildfires
effectively. Limiting firefighting agencies' ability to do so slow
fires will harm forest conservation, endangered species protection,
historic sites preservation, and our mission to protect nearby
residents.
Whether dropped from a plane, sprayed from a tanker truck, or hand
applied by private homeowners, retardant is a tool that keeps our
communities safe and our watersheds from being destroyed from damaging
catastrophic wildfires. In the wildland-urban interface, we need this
tool to protect critical infrastructure and human life.
We support your efforts on H.R. 1586.
Sincerely,
Grant Carmon,
Chairman
______
NORTH STATE PLANNING & DEVELOPMENT COLLECTIVE
Chico, California
March 20, 2023
Hon. Doug LaMalfa, U.S. Representative
408 Cannon House Office Building
Washington, DC 20515
Re: Forest Protection and Wildland Firefighter Safety
Dear Representative LaMalfa:
On behalf of the North State Planning and Development Collective,
California State University, Chico, we are happy to provide this
general letter of support related to forest protection and wildland
firefighter safety issues.
Northern California has been ravaged by wildfire over the last
several years, and our fire-prone communities remain at risk year-
after-year. It is critical for the survival of our communities,
forests, and safety of fire crew members to have the tools they need to
slow the spread of fire as they protect homes, infrastructure, and
communities. Tools such as retardant are critical to the firefighting
effort as they help ensure residents' safety, help protect our
workforce and infrastructure and ultimately preserve the economic
vitality of our communities.
We appreciate your ongoing efforts to support the needs of our
firefighters as they protect our residents and communities. For any
questions, please don't hesitate to reach out.
Sincerely,
Jason Schwenkler,
Executive Director
______
BUTTE COUNTY BOARD OF SUPERVISORS
Oroville, California
March 21, 2023
Hon. Doug LaMalfa, U.S. Representative
408 Cannon House Office Building
Washington, DC 20515
Re: Support for H.R. 1586, Forest Protection and Wildland Firefighter
Safety Act of 2023
Dear Representative LaMalfa:
On behalf of the Butte County Board of Supervisors, I am pleased
support H.R. 1586, Forest Protection and Wildland Firefighter Safety
Act of 2023. We appreciate your leadership on this critical issue and
that the legislation has strong bi-partisan support.
The use of retardant is a vital tool that firefighters need to have
at their disposal. Providing a Clean Water Act exemption so that
federal, state, local, and tribal firefighting agencies can continue to
use fire retardant is necessary to keep this tool available. Our fire
prone communities are at risk every year from the threat of wildfire.
It is critical for the survival of our communities, forests, and safety
of fire crew members to utilize retardant when deemed necessary. We
have seen time and again, using retardant slows the spread of fire,
protects homes, infrastructure, and communities by creating a boundary
line of attack for fire crews.
It is imperative that we maintain the ability to fight wildfires
effectively. Limiting firefighting agencies' ability to do so slow
fires will harm forest conservation, endangered species protection,
historic sites preservation, and our mission to protect nearby
residents.
Whether dropped from a plane, sprayed from a tanker truck, or hand
applied by private homeowners, retardant is a tool that keeps our
communities safe and our watersheds from being destroyed from damaging
catastrophic wildfires. In the wildland-urban interface, we need this
tool to protect critical infrastructure and human life.
We support your efforts on H.R. 1586.
Respectfully,
Tod Kimmelshue,
Chair, Board of Supervisors
______
Mr. LaMalfa. I am looking forward to working with the
Committee and other stakeholders on today's panel to protect
the health and safety and be able to use this essential tool
for fighting fire in the heat of fire season. I thank you.
[The prepared statement of Mr. LaMalfa follows:]
Prepared Statement of the Hon. Doug LaMalfa, a Representative in
Congress from the State of California
H.R. 1586, the Forest Protection and Wildland Firefighter Safety Act of
2023
Good afternoon. Chairman Tiffany and Ranking Member Neguse, thank
you for holding this important hearing and allowing me the opportunity
to testify on behalf of my legislation, the Forest Protection and
Wildland Firefighter Safety Act of 2023.
Across the West, we continue to face a wildfire crisis. In the past
five years alone, we've seen some of the most destructive wildfires on
record, especially in California. In my district, we have seen
catastrophic damage from the 2018 Camp Fire in Paradise, the deadliest
fire in California's history. In 2021 we saw the million-acre Dixie
Fire, the largest single source wildfire in California history.
Since 2000, we have averaged more than 70,000 wildfires per year
and an average of 7 million acres burned annually. This acreage is more
than double the average number during the 1990s. Since 2018, we've had
four fire seasons that have exceeded 7 million acres, including 2020
when 10.1 million acres burned. In part to nearly a decade of forest
mismanagement, our fires are getting bigger, hotter, and more
aggressive than ever before.
As a Member on the House Committee on Natural Resources, Committee
on Transportation and Infrastructure, and as the Chairman of the
Agriculture Subcommittee on Forestry, I know these issues firsthand.
Like you, we are reviewing current forestry policies, evaluating how we
can increase the pace and scale of proper forest management so that we
can conserve forest health while removing overgrowth that increases
risk of devastating wildfires. Overhauling our current regulatory
framework will not happen overnight. Removing brittle, decaying trees
and dry overgrowth on tens of millions of acres of forested land will
take years. Until then; until our forests are in a healthy state and a
small, naturally occurring blaze does not pose a risk of turning into
another million-acre catastrophic blaze, it is essential that all
wildland firefighting agencies continue to be able to utilize every
tool they can to protect forested land and nearby residents from
wildfires.
Unfortunately, environmentalists have confused protecting forested
lands with preventing intervention of any kind, even if it means life
or death. In the case of the Forest Service Employees for Environmental
Ethics v. the United States Forest Service--the impetus for my bill--
the plaintiff has asked for an injunction on the use of fire retardant
until the Forest Service receives a National Pollutant Discharge
Elimination System permit, which will take years to obtain. If the
injunction is granted and fire retardant is not available for use this
fire season, the Forest Service, all States, Tribal agencies, and
counties will have to sit by should another devastating fire come, and
we who live in the West know that this in inevitable. This can't wait.
The 2023 Fire Season is already here. In my state of California there
has already been 264 wildfires and 64 acres burned.
Already there are zones on forested lands where the use of fire
retardant is restricted. According to the Forest Service, ``It is
estimated that less than one-half of 1 percent of fire retardant drops
may reach the 300-foot or larger buffer. Impacts due to the exceptions,
or from misapplication of fire retardant into water, would be rare.''
How the plaintiff can claim to want to protect the environment when
they will actively allow another fire to harm residents and wildlife,
destroy forested land and property, pollute rivers with debris, and
choke vulnerable people up to hundreds of miles away is a mystery to
me. To every single Member of Congress in this room, it is your
constituents who will be put in danger if there is an injunction of
fire retardant.
Thank you to the United Aerial Firefighters Association, Federal
Forest Resource Coalition, Forest Landowners Association, California
Farm Bureau, and 42 other organizations who submitted letters of
support for this common sense, bipartisan, essential legislation.
Chairman Tiffany, I would like to ask for Unanimous Consent to
enter these letters into the record.
I am looking forward to working with the Committee and other
stakeholders on today's panel to protect the health and safety of rural
residents and wildlife on our Federal lands.
______
Mr. Tiffany. Thank you, Congressman LaMalfa. I now
recognize Representative Rosendale for 5 minutes on the Forest
Information Reform Act.
STATEMENT OF THE HON. MATT ROSENDALE, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF MONTANA
Mr. Rosendale. Thank you so much, Mr. Chair. I appreciate
you holding this hearing today. This hearing is particularly
pertinent as the temporary fix provided in the Fiscal Year 2018
Consolidated Appropriation Act expires today.
My legislation, the Forest Information Reform Act, amends
the Cottonwood requirements for re-consultation in Forest
Service plans when new information is found. This legislation
allows the Forest Service to incorporate new information into
its current plan, rather than starting consultations with the
U.S. Fish and Wildlife Service from scratch.
Specifically, my legislation amends the Forest and
Rangeland Renewable Resource Planning Act and the Federal Land
Policy Management Act to clarify that the Secretary shall not
be required to re-initiate consultation under section 7 of the
ESA on a land plan approved, amended, or revised when a species
is listed, critical habitat is designated, or new information
concerning a listed species or critical habitat becomes
available.
Legislation is needed to fix the disastrous Cottonwood
decision. The decision, which went against a previous court
decision from the 10th Circuit, has been weaponized by radical
environmental groups to use the Endangered Species Act to
prevent proper forest management. The decision makes it so that
if any new species are listed under the ESA, a new critical
habitat is designated, or more information becomes known about
a species previously listed, the U.S. Forest Service must
restart an already onerous consultation process with the U.S.
Fish and Wildlife Service about how the information will impact
both the forest plan and specific restoration projects.
Moreover, the decision results in the Forest Service having
to follow different procedures based on what part of the
country they are completing restoration projects in, which adds
confusion and difficulties for employees.
It shouldn't be more difficult for the Forest Service to
operate in Montana than in Wyoming. The people of Montana
shouldn't face a higher burden to receive necessary forest
restoration projects. This decision has created new
administrative and legal hurdles that make it more difficult
for the Forest Service to manage forests and reduce wildfires
on Federal lands.
Forest Service officials have previously testified that the
decision negatively impacts their resources and their
operations. Without a fix, re-consultation would be required on
at least 36 national forests in the 9th Circuit, taking up to
10 years and costing multiple millions of dollars each year--
valuable time and money that would be better spent restoring
forests on the ground.
In 2022, as my colleague said, there would be more than
66,000 fires and more than 7 million acres burned across the
country. In Montana alone, 125,000 acres burned in 2022. We
need to be doing all we can to combat wildfires out West. My
legislation is a key part of stopping the wildfire crisis.
We currently have 28 timber sales and 30,000 acres of
forest land that is under litigation in Montana. That is land
which is ready to be harvested, and yet is also at high risk of
losing all value due to wildfires. Advocates for the disastrous
decision argue that it is necessary for the conservation of
wildlife. However, as many of the witnesses will point out, the
Cottonwood decision has made the construction projects needed
to conserve wildlife more difficult.
In my state of Montana, specifically, the Stonewall Project
in the Helena-Lewis and Clark National Forest would have
managed vegetation to benefit wildlife. But Cottonwood-inspired
litigation delayed the project. As a result of the delays,
wildfires burned over half of the proposed treatment area,
destroying valuable wildlife habitat. The project went through
years of consultation and was delayed further unnecessarily by
a lawsuit.
While the 2018 omnibus bill provided a partial temporary
fix that expires today, there needs to be a permanent solution.
My bill is a common-sense solution that would prevent the
Forest Service from facing a perpetual cycle of litigation, and
allow them to chart a new era of efficiency which will benefit
Montanans and those across the nation.
Thank you, Mr. Chair. I yield back.
Mr. Tiffany. Thank you, Congressman Rosendale.
I would like to ask unanimous consent to enter this letter
into the record. It is signed by 33 conservation organizations
and professional organizations representing millions of natural
resources professionals, sportsmen, and sportswomen, urging
support for the fix to the Cottonwood issue. The letter
cautions that, if we fail to act, this will have an adverse
effect on our land managers' ability to manage our forests and
make significant strides to improve forest health.
Without objection.
[The information follows:]
March 20, 2023
Hon. Bruce Westerman, Chair
Hon. Raul Grijalva, Ranking Member
House Committee on Natural Resources
1324 Longworth House Office Building
Washington, DC 20515
Re: Sportsman Support for a Bipartisan ``Cottonwood Fix''
Dear Chair Westerman and Ranking Member Grijalva:
The undersigned conservation organizations and professional
organizations, representing millions of natural resource professionals,
sportsmen, and sportswomen are writing today to support a fix to the
``Cottonwood'' issue. We appreciate Representative Rosendale's
leadership on this issue and support his Forest Information Reform
(FIR) Act (H.R. 200). We sincerely believe that this issue should be
resolved in a bipartisan, bicameral fashion. We also support Senator
Daines' ``Cottonwood'' bill (S. 2561) of the 117th Congress.
Since the Ninth Circuit Court issued the 2015 Cottonwood
Environmental Law Center v. United States Forest Service
(``Cottonwood'') decision, the USFS and BLM have been required in
numerous instances to reinitiate consultation at a forest or land
management plan level with the Fish and Wildlife Service and the
National Oceanic and Atmospheric Administration even though the ``new
information'' was considered at a project level. This continues to
block and slow many essential USFS forest management, wildlife habitat
enhancement and wildfire fuel reduction projects.
Congress recognized the critical need to address the ``Cottonwood''
decision when it included a provision in the Consolidated
Appropriations Act of 2018 that adjusted consultation requirements for
the U.S. Forest Service (USFS) and Bureau of Land Management (BLM), but
with different instructions to each agency. When this provision sunsets
this month (March 2023), all forests, potentially, could face frivolous
litigation that halt all projects forest-wide until duplicative
consultation takes place. The USFS made clear to Congress, in testimony
before your Committee and the Senate Energy & Natural Resources
Committee, the adverse impact this will have on their ability to manage
our forests and make significant strides to improve forest health.
The FIR Act would prevent the burdensome need to reinitiate
consultation on a finalized land management plan based on new
endangered species information. Senator Daines' bill (S. 2561) of the
117th Congress would prohibit those same plans from being considered a
continuing federal agency action or constituting a discretionary
federal involvement, while also making some Endangered Species Act
(ESA) consultation requirements inapplicable. We support both
approaches and appreciate your committee's timely attention.
On October 21, 2021, the USFS testified before the Committee that
unless action is taken to resolve challenges stemming from the 2015
``Cottonwood'' decision, the agency will have to go through re-
consultation, regardless of the merit, on over one-hundred forest plans
that ``will take years and cost millions of dollars,'' threatening to
undermine the Administration's 10 Year Wildfire Crisis Strategy.
There is bipartisan and widespread support for a ``Cottonwood
Fix.'' In May 2016 the Obama Administration petitioned the Supreme
Court to review and overturn the case, and in January 2021 the Trump
Administration initiated a rule to amend Section 7 of the ESA to
address the issue. The Supreme Court rejected the original petition,
and no final rule has been issued.
Delays in forest management projects caused by ``Cottonwood''
litigation are costly and hinder critical forest management activities,
including wildfire and climate mitigation. Species listed under ESA are
already considered when assessing each land management project
implemented by the USFS, which will not be altered by a ``Cottonwood''
fix. Agencies undergo review and consultation at the project level
where the potential impacts can be best evaluated. Court rulings
requiring re-consultation at the plan level are duplicative and
unnecessary, and injunctions delay good projects from being implemented
in a timely manner.
Our organizations urge the Committee to favorably report a
bipartisan ``Cottonwood fix.''
Sincerely,
American Woodcock Society National Shooting Sports
Foundation
Assoc. of Fish and Wildlife
Agencies National Wild Turkey Federation
Archery Trade Association North American Grouse Partnership
Backcountry Hunters &
Anglers Orion: The Hunter's Institute
Bear Trust International Pope & Young Club
Boone and Crockett Club Public Lands Foundation
Camp Fire Club of America Rocky Mountain Elk Foundation
Congressional Sportsmen's
Foundation Ruffed Grouse Society
Conservation Force Safari Club International
Dallas Safari Club Sportsmen's Alliance
Delta Waterfowl Theodore Roosevelt Conservation
Partnership
Houston Safari Club The Wildlife Society
Mule Deer Foundation Whitetails Unlimited
National Assoc. of Forest
Service Retirees Wildlife Management Institute
National Bobwhite &
Grassland Initiative Wildlife Mississippi
National Deer Association Wild Sheep Foundation
National Rifle Association
______
Mr. Tiffany. I will now recognize Representative Peters for
5 minutes.
STATEMENT OF THE HON. SCOTT PETERS, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Peters. Thank you very much, Mr. Chairman, and thank
the Committee for allowing me a chance to address you about the
TOXIC Act, and to discuss forest health, and for including my
bill, the Targeting and Offsetting Existing Illegal
Contaminants Act, or the TOXIC Act.
In 2022, almost 1 million illegally grown, unregulated
marijuana plants and 33 tons of cultivation equipment,
including banned pesticides, were seized from illicit grow
sites on public land across California. More than 80 percent of
those grow sites were affiliated with criminal organizations,
and these figures only account for the sites we were able to
detect.
Driven by the massive profit potential of selling
unregulated marijuana, many of these grow sites are operated by
drug cartels and other organized criminal groups. These groups
often use illegal pesticides smuggled into the United States
because they are cheaper and more readily available than legal,
regulated pesticides. Upon release, however, these chemicals
poison the soil, water, and the air. These pesticides can
decimate endangered species populations like Pacific fishers
and spotted owls, hospitalize Forest Service agents tasked with
remediation, and severely sicken consumers.
One illegal pesticide popular among trespass growers,
methamidophos, is chemically similar to a nerve agent designed
for chemical weapons. These illegal pesticides don't just
destroy the environment, they also have the potential to poison
human consumers. When cannabis plants are treated with illegal
pesticides, the chemicals can be absorbed by the plant, and
ultimately end up in the consumer product. Consuming cannabis
that has been treated with illegal pesticides can trigger a
range of negative health effects, from lingering nausea and
respiratory problems to acute sickness. This is particularly
concerning for medical cannabis users, who rely on the plant
for relief from symptoms associated with various medical
conditions, but may struggle to afford safe, market-grade
cannabis at current price points.
Clearly, the stakes are high for our environment and our
health. But too often, those who manage illicit grow sites
receive slaps on the wrist when they are caught. Frequently,
offenders who are caught smuggling or releasing these chemicals
on public land are sentenced to less than a year in prison,
along with fines under $10,000. Offenders' business models are
so profitable that, for large criminal syndicates, it is simply
too easy to factor those insignificant penalties into the costs
of doing business.
So, I thank the Chair for including the TOXIC Act in
today's hearing, as well as Mr. LaMalfa for partnering with me
to introduce that bill. And I am glad that after nearly 20
years of debate in Congress on trespass cultivation, we are
finally moving toward a long-term solution.
The TOXIC Act will help us restore the long-term health of
our ecosystems, restrict the cross-border flow of toxic
contaminants, protect public health and consumers, and support
regulated cannabis businesses that comply with the law.
The TOXIC Act does two things.
First, the bill gives the Forest Service more resources and
authority to investigate and restore illegal cultivation sites
on public lands. The Forest Service is already doing this work,
but my staff collaborated closely with the agency to ensure
that this bill will provide more program integrity, staffing,
technology, and money to meet the scale of the destruction we
are seeing in forests across the United States.
And second, the bill will help us take a hard look at how
we prosecute those crimes. My bill with Mr. LaMalfa would
establish parity between the penalties for smuggling illegal
pesticides into the country and the penalties for deploying
those pesticides on public lands. This change will trigger the
U.S. Sentencing Commission to revisit its guidelines for these
crimes, and ensure that we treat the use of illegal pesticides,
particularly on public lands, with the severity it deserves.
Thank you, Chairman Tiffany, Ranking Member Neguse, and my
esteemed colleagues on the Subcommittee for your time and
consideration. I yield back.
[The prepared statement of Mr. Peters follows:]
Prepared Statement of the Hon. Scott Peters, a Representative in
Congress from the State of California
H.R. 1473, the Targeting and Offsetting Existing Illegal Contaminants
Act, or TOXIC Act
Thank you, Chairman Tiffany and Ranking Member Neguse, for
convening this hearing today to discuss forest health and for including
my bill, the Targeting and Offsetting Existing Illegal Contaminants
Act, or TOXIC Act.
In 2022, almost 1 million illegally grown, unregulated marijuana
plants and 33 tons of cultivation equipment, including banned
pesticides, were seized from illicit grow sites on public land across
California.
More than 80 percent of those grow sites were affiliated with
criminal organizations, and these figures only account for the sites we
were able to detect.
Driven by the massive profit potential of selling unregulated
marijuana, many of these grow sites are operated by drug cartels and
other organized criminal groups.
These groups often use illegal pesticides smuggled into the United
States because they are cheaper and more readily available than legal,
regulated pesticides.
Upon release, however, these chemicals poison the soil, water, and
air.
These toxic pesticides can decimate endangered species populations
like pacific fishers and spotted owls, hospitalize Forest Service
agents tasked with remediation, and severely sicken consumers.
One illegal pesticide popular among trespass growers,
methamidophos, is chemically similar to a nerve agent designed for
chemical weapons.
These illegal pesticides don't just destroy the environment. They
also have the potential to poison human consumers.
When cannabis plants are treated with illegal pesticides, the
chemicals can be absorbed by the plant and ultimately end up in the
consumer product.
Consuming cannabis that has been treated with illegal pesticides
can trigger a range of negative health effects, from lingering nausea
and respiratory problems to acute sickness.
This is particularly concerning for medical cannabis users, who
rely on the plant for relief from symptoms associated with various
medical conditions, but may struggle to afford safe, market-grade
cannabis at current price points.
Clearly the stakes are high for our environment and our health. But
too often, those who manage illicit grow sites receive slaps on the
wrist when they're caught.
Frequently, offenders who are caught smuggling or releasing these
chemicals on public lands are sentenced to less than 1 year in prison
along with fines under $10,000.
Offenders' business models are so profitable that for large
criminal syndicates, it's simply too easy to factor those insignificant
penalties into the cost of doing business.
I thank the Chair for including the TOXIC Act in today's hearing,
as well as Mr. LaMalfa for partnering with me to introduce the bill.
I'm glad that after nearly 20 years of debate in Congress on
trespass cultivation, we're finally moving toward a long-term solution.
The TOXIC Act will help us restore the long-term health of our
ecosystems, restrict the cross-border flow of toxic contaminants,
protect public health and consumers, and support regulated cannabis
businesses that comply with the law.
The TOXIC Act does two things.
First, the bill gives the Forest Service more resources and
authority to investigate and restore illegal cultivation sites on
public lands.
The Forest Service is already doing this work, but my staff
collaborated closely with the agency to ensure that this bill will
provide more program integrity, staffing, technology, and money to meet
the scale of the destruction we're seeing in forests across the United
States.
And second, the bill will help us take a hard look at how we
prosecute these crimes.
My bill with Mr. LaMalfa would establish parity between the
penalties for smuggling illegal pesticides into the country and the
penalties for deploying those pesticides on public lands.
This change will trigger the U.S. Sentencing Commission to revisit
its guidelines for these crimes and ensure that we treat the use of
illegal pesticides, particularly on public lands, with the severity it
deserves.
Thank you, Chairman Tiffany, Ranking Member Neguse, and my esteemed
colleagues on the Subcommittee for your time and consideration.
I yield back.
______
Mr. Tiffany. Thank you, Congressman Peters.
We will now move on to our second panel. Let me remind the
witnesses that, under Committee Rules, they must limit their
oral statements to 5 minutes, but their entire statement will
appear in the hearing record.
To begin your testimony, please press the ``on'' button. We
use timing lights. When you begin, the light will turn green.
At the end of 5 minutes the light will turn red, and I will ask
you to please complete your statement.
I will also allow all witnesses to testify before Member
questioning.
I would like now to introduce Mr. Chris French, who is the
Deputy Chief of the National Forest System for the U.S. Forest
Service. Deputy Chief French is responsible for policy
oversight and direction for natural resource and public service
delivery programs across the 193 million acres of national
forests and grasslands in the 44 states and territories that
make up the National Forest System.
Deputy Chief French, you are now recognized for 5 minutes.
STATEMENT OF CHRIS FRENCH, DEPUTY CHIEF FOR NATIONAL FOREST
SYSTEMS, U.S. FOREST SERVICE, WASHINGTON, DC
Mr. French. Thank you. Good afternoon, Chairman Tiffany,
Ranking Member, and members of the Committee.
I am Chris French, Deputy Chief of the National Forest
System at the U.S. Forest Service. I have been with the agency
for more than 30 years. I was trained as an endangered species
biologist and worked in fire and natural resource management my
entire career. We appreciate the opportunity to provide the
perspective of the USDA on the four public land bills that are
under consideration today.
The Forest Service manages 193 million acres of public
national forests and grasslands that provide a wide range of
benefits: jobs, drinking water, food, wood and fiber, and
extensive recreational opportunities. They are also the
ancestral homelands of Indigenous peoples represented by nearly
574 federally recognized tribes.
They are also in crisis. Wildfire poses a growing threat to
these many benefits and to forest-based communities. USDA
supports the intent of H.R. 1473 and H.R. 1567, and would like
to work with the bill's sponsors and this Subcommittee on
technical changes. The USDA has concerns with H.R. 200 and H.R.
1586, as drafted, and would like to work with the Subcommittee
and bill sponsors to resolve those issues.
H.R. 200 addresses the long-standing, duplicative ESA re-
consultation requirement on land management plans that have
been approved, revised, or amended. Interpretation of these
governing laws and regulations have created a split set of
rulings between Federal courts, resulting in a confusing and
often redundant pathway for the agency to comply with the
Endangered Species Act.
In addition, other land management agencies, such as the
BLM, are not required to re-consult on their resource
management plans, further creating an uneven regulatory
environment. H.R. 200 addresses that confusion. We would like
to work with the bill's sponsors on specific pieces to provide
clarification.
The Forest Service is committed to protecting species and
consulting on every project to conform to the Endangered
Species Act. We routinely re-initiate project consultation when
a new species or critical habitat is listed. However, requiring
the Forest Service to re-initiate forest plan ESA consultation,
which the Supreme Court has determined are completed Federal
actions, diverts resources from the critical ongoing project-
by-project consultations that provide current and specific
protections to endangered species.
It appears that the intent of the bill would allow us to
continue focusing on updating our land management plans while
ensuring that habitat conservation and protection of endangered
species continues through project-by-project consultation.
H.R. 1473 would help the Forest Service address the
remediation of contaminated sites resulting from the illegal
cultivation of cannabis on National Forest System lands.
Illegal cannabis cultivation affects public safety and the
environment with pesticides poisoning wildlife, soil, and
water. Since 2017, we have fully reclaimed nearly 330 grow
sites, removing over 300 pounds of trash, and more than 350
miles of irrigation pipes, and thousands of containers of
illegal pesticides. This represents about a tenth of the total
grow sites that we think that are out there. The support this
bill gives to our remediation efforts is very appreciated.
H.R. 1567 requires the Departments of Agriculture and
Interior to implement standardized procedures for tracking data
related to hazardous fuels reduction activities. The USDA
agrees that the thoughtful tracking and reporting of hazardous
fuels treatments and reducing wildland fire risk to communities
is important for accountability to the public, and can help
provide a comprehensive understanding of wildland fire risk
reduction.
It is also important that we are accurate and transparent
in how we do our work. We would like to work with the bill's
sponsors on some elements that don't address current fiscal
accountability reporting requirements and limit the agency's
ability to accurately reflect the breadth of the work we do to
protect communities.
Finally, H.R. 1586 provides the Secretary of Agriculture
and Secretary of the Interior the ability to discharge fire
retardant for fire suppression, control, or prevention
activities without a Clean Water Act permit. The use of fire
retardant is a critical wildfire suppression tool that we will
continue to use appropriately and widely to protect communities
from the threats of wildfire.
We are incredibly careful and precise in our use of fire
retardant. As a result, more than 99 percent of our aerial
retardant drops do not affect America's waterways. We use low
toxicity retardant formulas, equipment inspections, and
training to achieve this.
As a possible outcome of ongoing legal action, our current
use of fire retardant may now require permitting at a Federal
and state level. The Forest Service is working with EPA.
However, this process takes time, as permitting processes to
address this type of situation do not currently exist. It looks
as if it will require years of work with the EPA and multiple
states to establish those permits, but we have created a
pathway. We are diligently working for an administrative
pathway to resolve this unexpected issue, and will continue to
use retardant as a key suppression tool unless ordered not to.
Thank you.
[The prepared statement of Mr. French follows:]
Prepared Statement of Chris French, Deputy Chief, U.S. Department of
Agriculture--Forest Service
on H.R. 200, H.R. 1473, H.R. 1567, and H.R. 1586
Chairman Tiffany, Ranking Member Neguse, and Members of the
Subcommittee, thank you for the opportunity to present the views of the
U.S. Department of Agriculture (USDA) on several bills under the
jurisdiction of the U.S. Forest Service (Forest Service).
H.R. 200--Forest Information Reform Act
The Forest Service takes seriously its responsibility to comply
with the Endangered Species Act (ESA) regulations, and the health and
vitality of listed species. The Forest Service's mission requires us to
integrate the need to protect listed species with our obligation to
carry out management actions to promote healthy and resilient
ecosystems, protect our communities, support a diversity of species,
and deliver many other benefits that the American people enjoy and
depend on.
As you are aware, the Endangered Species Act of 1973 requires
federal agencies to consult with the U.S. Fish and Wildlife Service or
the National Marine Fisheries Service (Services) when their
discretionary actions might affect either ESA species or designated
critical habitat. This consultation ensures that actions of federal
agencies do not jeopardize listed species or adversely modify their
critical habitat. Even after a biological opinion has been rendered by
the Services, there are circumstances that might alter the Services'
original conclusions of the action's impact on species or critical
habitat which can trigger a requirement to reinitiate of consultation.
A pair of Ninth Circuit court decisions, commonly referred to as
Pacific Rivers Council (PRC) and Cottonwood, which held that a new ESA
listing of a species or critical habitat designation required the
Forest Service to reinitiate consultation on approved land management
plans because either the plan was an ``ongoing action'' (PRC) or
because the agency retains discretion to authorize site-specific
projects governed by the land management plan (LMP) (Cottonwood), have
no basis in the ESA or its implementing regulations. LMPs provide
general management direction for an entire national forest or
grassland. This direction is then integrated into projects, which
normally requires a second decision and ESA consultation to dictate
what on-the-ground actions can be taken. A Tenth Circuit decision
(commonly known as Forsgren) reached a different conclusion than the
Ninth Circuit's conclusions in Cottonwood, and instead held that the
Forest Service did not need to reinitiate consultation on an approved
plan with the Services because LMPs are neither ongoing nor self-
executing actions for purposes of the ESA.
Congress enacted legislation in the FY 2018 Consolidated
Appropriations Act (CAA) so that the Secretary of Agriculture did not
need to reinitiate consultation on land management plan decisions when
a new species is listed or critical habitat is designated in areas
covered by land management plans less than 15 years old. The CAA also
provided an exemption, or ``safe harbor,'' for reinitiation of
consultation for five years from the enactment of the bill or when a
species is listed or critical habitat is designated regardless of when
a land management plan had been adopted. Project level consultation on
every federal action was not affected by the CAA and continued.
H.R. 200 exempts the Forest Service from reinitiating consultation
with the Services on plans that have already been subject to
consultation at the time they were approved, revised, or amended when a
species is subsequently listed, critical habitat is designated, or new
information concerning a listed species or critical habitat becomes
available. It eliminates the time limits on the statutory exemption
enacted in the 2018 CAA, making all land management plans exempt
regardless of their age or when new ESA listings and new critical
habitat designations were made. This bill would also eliminate any
requirement that the Forest Service reinitiate consultation on LMPs
when new information becomes available. Under Forest Service
guidelines, new information is considered in project-level documents
when it could influence the decision and subsequent actions that could
affect a species listed under the ESA.
With the safe harbor provision in the 2018 CAA expiring today,
March 23rd, about eighty-seven land management plans across the nation
could now be subject to litigation. Since enactment of the CAA, the
Forest Service has maintained its responsibilities in consulting with
the Services on projects. Every agency action must comply with the ESA.
The requirement to reinitiate consultation on LMPs that affect ESA
listed species as redundant to the project-level consultations that are
required. Furthermore, the Forest Service believes that concerns with
new information and newly listed species and their critical habitat are
adequately addressed through consultation at the project level. H.R.
200 directs that the agency is not required to reinitiate consultation
on land management plans when there is new information, a new species
listing, or a new critical habitat designation.
The USDA and the Department of the Interior (DOI) realizes ESA
consultation is an issue with a number of equities that need to be
addressed. We are committed to continuing to work together toward a
legislative solution that allows for timely decision making, while
maintaining the important wildlife protections afforded by the
Endangered Species Act. As drafted, the Administration has concerns and
looks forward to working with the Committee and the bill sponsor to
address concerns with the bill. We want to ensure clarity on how
consultation for specific actions or projects can provide the American
public with confidence that the agency is upholding its
responsibilities to protect listed species and their habitat while
providing the many benefits we gain by managing our forests.
H.R. 1473--Targeting and Offsetting Existing Illegal Contaminants Act
H.R. 1473 establishes an environmental restoration program under
the jurisdiction of the USDA Forest Service, consistent with the
Comprehensive Environmental Response, Compensation, and Liability Act
(42 U.S.C. 9601). The goal of this bill is to identify, investigate,
research, and develop solutions to and remediation of contamination
resulting from the cultivation of cannabis on National Forest System
(NFS) lands. The bill additionally amends the Federal Insecticide,
Fungicide, and Rodenticide Act (7 U.S.C. 136l(b)(2)) to amend criminal
penalties identified in that Act both independently and in connection
with other federal offenses.
The Forest Service faces significant challenges related to illegal
cannabis cultivation on NFS lands. More than 4,000 illegal grow sites
have been identified on NFS lands. These sites pose problems for Forest
Service law enforcement, public safety, and the environment with
pesticides poisoning wildlife, soil, and water. In 2022, Forest Service
staff and partners addressed 56 cultivation sites on 10 national
forests, removing 49,318 pounds of trash, 68.7 miles of plastic
irrigation line, and 169 containers of banned and illegal pesticides at
a cost of over $2.3 million. The Forest Service was able to restore
over 307 million gallons of surface water diversions associated with
these 56 sites.
The Forest Service appreciates the bill sponsors' intent to
significantly enhance the Forest Service's ability to address trespass
cultivation, including cannabis cultivation. The USDA supports the
enhancements The USDA would like to work with the bill sponsors and
Subcommittee on technical changes to better define the Forest Service's
enforcement authority and the appropriate remediation activities to be
undertaken. The ultimate outcome of this work is remediation of the
damaged ecosystems and enhanced public safety.
The USDA supports the intent of the Targeting and Offsetting
Existing Illegal Contaminants Act and looks forward to working with the
bill sponsors and Subcommittee on technical changes to further support
the Forest Service's ability to address trespass cultivation and the
associated negative impacts. The Department of the Interior advises
similar authority for management of DOI lands could be beneficial.
H.R. 1567--Accurately Counting Risk Elimination Solutions Act
H.R. 1567 requires the U.S. Department of Agriculture (USDA) and
Department of Interior (DOI) to include a publicly available report on
hazardous fuels reduction activity acres in the yearly President's
Budget. This report must account for each acre only once regardless of
whether multiple hazardous fuels reduction activities were carried out
on that acre during the year. In addition, the report must identify the
following: the location of the acres and if they are in the wildland-
urban interface; the level of wildfire risk on the first and last day
of the reporting period; the types of hazardous fuels activities
completed; the cost per acre by treatment type; and the effectiveness
of the hazardous fuels reduction activities on reducing wildfire risk.
The bill requires the USDA and DOI to implement standardized
procedures for tracking data related to hazardous fuels reduction
activities. These procedures must include standardized data reviews of
the accuracy and timely input of data used to track hazardous fuels
reduction activities; verification methods that validate the data; an
analysis of the effectiveness of the hazardous fuels reduction
activities on reducing the risk of wildfire; and methods to distinguish
which acres are located within and outside of the wildland-urban
interface.
Further, The USDA and DOI are required to provide a report within
two weeks after implementing the standardized procedures required
describing the procedures and program and policy recommendations to
address any limitations in tracking data related to hazardous fuels
reduction activities. Not later than two years after the date of
enactment, the Government Accountability Office shall conduct a study
on the implementation of this Act, including any limitations with
respect to reporting hazardous fuels reduction activities or tracking
data related to hazardous fuels reduction activities.
The USDA agrees that accurately tracking hazardous fuels treatments
and the reduction of wildfire risk to communities is important for
accountability to the American public and will help provide a
comprehensive understanding of wildfire risk reduction. Tracking each
dollar spent can improve our understanding of the funding needed to
achieve the desired risk reduction to communities and better maintain
our landscapes. However, a report accounting for each acre only once
would limit the ability of decisionmakers and the public to understand
the connection between risk reduction and financial accountability. For
example, often the same acre requires multiple treatments (3 treatments
on average) in a short period of time, such as mechanical thinning
first and then prescribed fire to achieve the desired risk reduction.
Once this phase is complete, those acres can be moved to a maintenance
strategy (the point at which low-cost thinning or burning treatments
are conducted at the appropriate fire-return intervals for a given
landscape, on average every 10 to 15 years). Only accounting for one
phase of a multi-phased treatment would only provide a partial window
to the true cost of risk reduction and resilience.
The USDA supports the reporting of treatment locations, type of
treatment, and cost of treatment across the landscape annually. The
timing outlined in the bill on the first and last day of the reporting
cycle will require continued development of metrics. Currently, the
Forest Service has metrics to evaluate fire risk to communities,
however these metrics continue to evolve with continued scientific
analysis. The sensitivity of these metrics to detect change in
vegetative conditions at fine scale is continuing to be evaluated. Fine
scale detection is critical to ensure all treatments are evaluated to
determine effectiveness with reducing fire risk to communities. We
expect that these metrics within an annual report will evolve and
change over time. Development of the standard structure and procedures
will take time and coordination both internally and with DOI.
Finally, excluding acres improved or maintained by wildfire is
achievable, however, we make note that the maintenance of acres by
wildfire will be critical to the long-term success of fire risk
reduction to communities. As more acres are treated to reduce fire
risk, they must be maintained, and one critical means for doing so is
through naturally occurring fire. We want to ensure that reporting
requirements will have the desired effect of both improving fiscal
accountability and serving as a tool that can improve the health and
resilience of our forests and communities to the threat of wildfire.
The USDA appreciates the intent of the bill and would like to work
with the Subcommittee and bill sponsors to address our concerns.
H.R. 1586--Forest Protection and Wildland Firefighter Safety Act
H.R. 1586 amends the Federal Water Pollution Control Act, also
known as the Clean Water Act (CWA), to provide the Secretary of
Agriculture and Secretary of the Interior the authority to discharge
fire retardant and other chemicals for fire suppression, control, or
prevention activities. The bill exempts the Forest Service and certain
other agencies from needing a permit under section 402 of the CWA.
In the western U.S., National Forests supply drinking water to
almost 90 percent of the people served by public water systems. The
Administration is committed to providing firefighters with the
investments and tools they need to protect communities, our forests and
sources of drinking water while at the same time maintaining the
integrity of the Clean Water Act. The Administration does not, however,
believe that an amendment to the Clean Water Act is necessary in light
of the administrative steps that are being taken.
The CWA requires National Pollutant Discharge Elimination System
(NPDES) permits for any discharge of a pollutant from a point source to
navigable waters of the United States. The Forest Service's position
has been that an NPDES permit was not required for fire control
activities based upon guidance received from EPA in 2003. On February
16, 2023, the USDA Forest Service and EPA entered into a Federal
Facility Compliance Agreement to address the Forest Service's discharge
of pollutants during aerial fire-retardant applications and to require
the Forest Service to obtain NPDES permit coverage for discharges to
waters.
Currently, there is no NPDES permit established for aerial
application of fire retardant, however the Administration is working
diligently to come into compliance with the Clean Water Act. The Forest
Service is working collaboratively with EPA on a general permit for
aerially delivered retardant. EPA estimates it will take between two to
three years to develop and issue an EPA permit as well as coverage in
47 states, which issue their own permits, a process that would take
about another year depending on the states' own permit timelines.
Current direction in the nationwide Aerial Application of Fire
Retardant on National Forest System Land Record of Decision (Decision)
from 2011 has demonstrated it is very effective at reducing retardant
drops into water. The 2011 Decision prohibits delivery of fire
retardant directly into waterbodies, or into buffers surrounding
waterbodies, with an allowed exception to protect life and safety. Over
the last 10 years, less than one percent of retardant drops impacted
American waterways.
Aerially delivered long-term fire retardant is part of an
integrated firefighting strategy and is an essential tool the Forest
Service and the interagency community uses in support of ground-based
firefighting resources. Long-term retardants alter the way wildfire
burns, decreases fire intensity, and slows the advance of fire, even
after the water they originally contained has evaporated. If the Forest
Service is only able to use water from airtankers, our ability to
successfully suppress fires would be significantly impacted. In
addition to the impact on our wildfire response, we must consider the
implications for our wildland firefighter workforce. Ensuring that we
are allowed to continue using wildfire retardant to protect homes and
communities is the highest priority of the administration. We believe
retardant can be (and has been) delivered without compromising public
health and the environment.
The USDA is committed to CWA compliance and protection of water
quality and keeping our communities and wildland firefighters safe. The
nation is experiencing hotter, drier and longer wildfire seasons.
Wildfires are growing, both in size and severity, due in part to fuels
buildup, fire exclusion, development in fire-prone areas and climate
change. The dedication, bravery, and professional integrity of our
wildland firefighters and support personnel is second to none. We must
protect approximately 11,300 Forest Service wildland firefighters and
the communities they defend, using every tool available, including fire
retardant. As we work with our many partners to assist communities
impacted by wildfires, we are committed, through shared stewardship, to
change this trend in the coming years. While we agree with the
Sponsors' view that the application of fire retardant is an essential
tool for protecting communities, forests, and our firefighters, we
believe we can protect this long-standing practice without amending the
CWA, which is essential to protecting public health and our drinking
water supplies. While the Administration cannot support this bill, we
look forward to working with the bill sponsors and Subcommittee on
efforts that ensure the integrity of the CWA while continuing to allow
aerial retardant as part of the interagency suppression response.
Nonetheless, we are reviewing a technical assistance request and look
forward to working with the bill sponsors and Subcommittee on efforts
that ensure the integrity of the CWA while continuing to allow aerial
retardant as part of the interagency suppression response.
Thank you again for the opportunity to testify on these bills, and
I welcome any questions.
______
Questions Submitted for the Record to Mr. Chris French, Deputy Chief,
National Forest System, U.S. Forest Service
Mr. French did not submit responses to the Committee by the appropriate
deadline for inclusion in the printed record.
Questions Submitted by Representative Westerman
Question 1. How will the Cottonwood decision effect the Forest
Service's ability to execute the 10 year ``Confronting the Wildfire
Crisis'' Strategy? How does litigation generally impact the ability of
the Forest Service to execute this strategy?
Question 2. Why aren't BLM Resource Management Plans (RMPs) subject
to the same re-initiation of consultation requirements as forest plans?
Question 3. In your written testimony, you explained that in the
wake of the expiration of the 2018 partial Cottonwood fix, 87 forest
plans across the nation could now potentially be subject to litigation.
3a) How long will this re-consultation process take, on average for
an individual plan and cumulatively for all plans?
3b) How much money will this cost the Forest Service, on average
for an individual plan and cumulatively for all plans?
Question 4. Does the Forest Service typically have to revise forest
plans as a result ofre-consultation triggered by Cottonwood-related
lawsuits or challenges?
Question 5. Please provide the following information, broken down
by Forest Service region:
5a) The number of active lawsuits or notices of intent to file a
lawsuit currently pending against the Forest Service.
5b) The number of active lawsuits or notices of intent to file a
lawsuit currently pending against the Forest Service against forest
management projects.
5c) The number oflawsuits filed against the Forest Service annually
from 2002-2022.
5d) The number of lawsuits filed against the Forest Service
challenging forest management projects annually from 2002-2022.
5e) The number of active lawsuits or notices of intent to file a
lawsuit related to Cottonwood currently pending against the Forest
Service.
5f) The number of forest management projects being challenged by
Cottonwood-related lawsuits or notices of intent to sue.
5g) The amount of board feet of timber being challenged by active
lawsuits or notices of intent to sue.
5h) The amount of board feet of timber being challenged by
Cottonwood-related lawsuits or notices of intent to sue.
5i) The amount of acres being challenged by active lawsuits or
notices of intent to sue.
5j) The number of acres of designated critical habitat areas that
have burned in wildfires since 2015.
5k) The number of acres of Canada Lynx critical habitat that have
burned since 2015.
5l) The number of acres that have burned as a result of wildlife
within the Ninth Circuit since 2015.
5m) The number of acres that have burned as a result of wildfire
within the Tenth Circuit since 2015.
Question 6. On average, what is the percentage of court cases does
the Forest Service prevail in or move forward with substantially
similar actions?
Question 7. Of the forest management projects litigated under
Cottonwood, how many did the Forest Service prevail in or move forward
with substantially the same actions following required consultation?
Question 8. How many forest management projects have been litigated
or had a notice of intent to sue filed on NFS land in the Ninth Circuit
since the Cottonwood decision in 2015?
Question 9. How many forest management projects have been litigated
or had a notice of intent to sue filed on NFS land in the Tenth Circuit
since the Cottonwood decision in 2015?
Question 10. In your testimony you explain that land management
plans provide general management direction for an entire national
forest or grassland. These guidelines are then integrated into
projects, which you emphasize ``normally requires a second decision and
ESA consultation to dictate what on-the-ground actions can be taken.''
Can you share all the different types of on-the-ground projects that
normally require ESA consultation?
Question 11. In response to questions submitted for the record from
an October 21, 2021 Senate Committee on Energy and Natural Resources
hearing, you stated that: ``In response to the Cottonwood ruling, the
Forest Service reconsulted on critical habitat for the Canada Lynx.
Forest Service personnel spent an estimated 400 person days valued at
approximately $250,000 over 12 months to complete this
reconsultation.''
11a) Can you provide an estimate of the total cost and number of
person days that are being used by the Forest Service every year to
complete all of the required ESA consultation across the agency? Of
those consultations, how many are related to the Cottonwood decision?
11b) How much money and person days are being spent by the Forest
Service annually on NEPA compliance?
Question 12. In response to questions submitted for the record from
an October 21, 2021 Senate Committee on Energy and Natural Resources
hear ing, you stated that: ``The Forest Service has analyzed various
approaches to address the upcoming potential consultation workload
cifier March 23, 2023. Our initial analysis estimates that the workload
may,take 5-10 years to accomplish and will require multiple millions of
dollars per year. For example, for forests just in the Ninth Circuit,
the initial required consultation would occur on 187 taxa across 36
national forests.''
12a) Since your response on October 21, 2021, has the Forest
Service completed an updated assessment on the taxa and number of
national forests where new consultation would be required after March
23, 2023?
12b) Approximately how many taxa covering what number of national
forests would require new consultation after March 23, 2023?
Questions on H.R. 1473
Question 1. Has the Forest Service conducted an estimate of how
much money Mexican drug cartels are making annually as a result of
illegal cannabis growth on federal forest lands?
Question 2. What is the effect of illegal marijuana cultivation on
threatened and endangered species and critical habitat?
Question 3. In your testimony, you stated there have been 4,000
illegal grow sites of marijuana identified on NFS lands. Does the
Forest Service have an estimate of how many new sites are established
each year? Approximately how many sites are going undetected annually?
Question 4. Please provide the following information for illegal
cultivation sites addressed by the Forest Service staff and partners
each year over the 2000-2022 period:
4a) The number of illegal cultivation sites identified.
4b) The national forests where illegal cultivation sites were
identified.
4c) The states where illegal cultivation sites were identified in
national forests.
4d) The pounds of trash removed.
4e) The miles of plastic irrigation line removed.
4f) The number of containers of banned and illegal pesticides
removed.
4g) The gallons of water diverted as a result of illegal
cultivation sites.
4h) The value of illegal marijuana seized from illegal cultivation
sites.
4i) The number of illegal cannabis plants removed.
4j) The total amount of money spent addressing illegal cultivation
sites.
4k) The number of arrests made in connection with illegal marijuana
cultivation on NFS lands.
Questions on H.R. 1586
Question 1. If the use of fire retardant had not been available in
the 2022, 2021, and 2020 fire seasons, what does the Forest Service
estimate the difference would have been in each of those years in the
following categories:
1a) Lives lost (including those engaged in wildfire suppression and
members of the public).
1b) Acreage burned (both federal and non-federal).
1c) Structures destroyed and damaged.
______
Mr. Tiffany. Thank you, Mr. French. Now I would like to
recognize Mr. Ryan Bronson, who is the Director of Government
Affairs for the Rocky Mountain Elk Foundation.
You have 5 minutes, Mr. Bronson.
STATEMENT OF RYAN BRONSON, DIRECTOR OF GOVERNMENT AFFAIRS,
ROCKY MOUNTAIN ELK FOUNDATION, ST. PAUL, MINNESOTA
Mr. Bronson. Thank you, Mr. Chairman, members of the
Committee. I am Ryan Bronson, Director of Government Affairs
for the Rocky Mountain Elk Foundation.
The Elk Foundation is a 225,000-member non-profit
conservation organization with a mission to ensure the future
of elk, other wildlife, their habitat, and our hunting
heritage. We are headquartered in Missoula, Montana. Since our
founding in 1984, we have helped conserve and enhance more than
8.6 million acres, and have improved access to 1.5 million
acres. Most of these projects have occurred in the forests and
sage lands of the Western United States. Our 500 chapters raise
money in communities across the country to help us accomplish
this mission, and work on the public multi-use lands that are
impacted by the legislation you are discussing today.
Elk benefit from diverse and actively managed forests, as
do most wildlife. Overgrown forests with closed canopies where
sunlight cannot reach the forbs and grasses on the forest floor
do not provide the food and cover that many species need.
Actively managed forests provide diverse age structure of trees
and diverse habitat that provides for the various life cycle
stages of many species.
In addition, managed forests are more resilient to weather,
insect outbreaks, and catastrophic wildfire.
This position is not unique to hunting conservation groups
like mine. In August 2021, a coalition of California
environmental groups and land trusts sent an urgent letter
outlining the history of forest management that led to forests
that are, in their words, unnaturally dense, overstocked, and
choked with surface and ladder fuels. Their plea for a
significantly increased level of ecologically-based forest
restoration treatments in order to turn the corner to get
Federal forests back to a more resilient condition.
Unfortunately, litigious special interests have weaponized
the Endangered Species Act to stop many wildfire prevention and
habitat management projects. The 9th Circuit Cottonwood
Environmental Law Center v. U.S. Forest Service decision has
already delayed hundreds of projects, leading to catastrophic
wildfires that have destroyed lives, property, homes, and
important wildlife habitat.
There is an increased urgency today, as the temporary and
partial fix that Congress provided in 2018 expires, placing
more projects at risk of delay.
In April of last year, the Hermits Peak Fire in New Mexico
began as a prescribed fire that got out of control. The Forest
Service's wildfire review report provided several important
lessons, but it was noteworthy to us that treatment was delayed
from September 2019 to October 2020 by a Cottonwood-related
injunction and by COVID staffing issues following that. A
thinning project area would have had lower wildfire risk. The
subsequent 341,000-acre fire has not been good for threatened
Mexican spotted owls, elk, other wildlife, or people.
Fixing the Cottonwood decision has bipartisan support since
the ruling came down. The Obama administration appealed the
decision in 2016. The Trump administration addressed it with a
rule that was never finalized. And in the 117th Congress, a
bipartisan 16 to 4 vote in the Senate Energy and Natural
Resources Committee provided us hope that a solution was in
reach.
H.R. 200, the Forest Information Reform Act, would close
the open loop that the Cottonwood decision created, and prevent
redundant and costly delays for re-consultation under the
Endangered Species Act. The Rocky Mountain Elk Foundation
strongly supports this legislation.
Forest management for habitat improvement and for hazardous
fuel reduction are often very similar. Every acre treated
through thinning, prescribed burning, and other treatments help
achieve the resiliency laid out in the Forest Service's 10-Year
Wildfire Crisis Strategy. H.R. 1567, the ACRES Act, will help
Congress and the public gain a better understanding of the
state of America's forest lands and the progress or
deterioration that is occurring while land agencies attempt to
accelerate mitigation efforts with the new resources recently
provided by Congress.
As increased funding flows to wildfire mitigation and
forest management, we fear that the level of on-the-ground
projects that Congress envisions will be stymied by litigation,
frustrating everyone.
The Rocky Mountain Elk Foundation thanks the Committee for
the opportunity to participate today. Thank you.
[The prepared statement of Mr. Bronson follows:]
Prepared Statement of Ryan Bronson, Director of Government Affairs,
Rocky Mountain Elk Foundation
on H.R. 200 and H.R. 1567
Chairman Tiffany and Members of the Committee. I am Ryan Bronson,
Director of Government Affairs for the Rocky Mountain Elk Foundation.
The Elk Foundation is a 225,000-member non-profit conservation
organization with a mission to ensure the future of elk, other
wildlife, their habitat, and our hunting heritage. We are headquartered
in Missoula, Montana.
Since our founding in 1984 we have helped conserve and enhance more
than 8.6 million acres (about half the area of South Carolina), and
improved access to 1.5 million acres. Most of these projects have
occurred in the forests and sage lands of the western US. Our 500
chapters raise money in communities across the country to help us
accomplish this mission and work on the public multi-use lands that are
impacted by the legislation you are discussing today.
Elk benefit from diverse and actively managed forests, as do most
wildlife. Overgrown forests with closed canopies, where sunlight cannot
reach the forbs and grasses on the forest floor, do not provide the
food and cover that so many species need.
Actively managed forests provide diverse age structures of trees,
and diverse habitat that provides for the various life cycle stages of
many species. In addition, managed forests are more resilient to
weather, insect outbreaks and catastrophic wildfire.
This position is not unique to hunting conservation organizations
like mine. In August 2021, a coalition of California environmental
groups and land trusts sent an urgent letter outlining a history of
forest management that led to forests that are ``unnaturally dense,
overstocked, and choked with surface and ladder fuels''. Their plea was
for ``a significantly increased level of ecologically based forest
restoration treatments in order to turn the corner to get federal
forests back to a more resilient condition.''
Unfortunately, litigious special interests have weaponized the
Endangered Species Act to prevent many wildfire-prevention and habitat
management projects. The 9th Circuit Cottonwood Environmental Law
Center v. US Forest Service decision (aka. Cottonwood) has already
delayed hundreds of projects, leading to catastrophic wildfires that
have destroyed lives, property, homes, and important wildlife habitat.
There is increased urgency today as the temporary and partial fix that
Congress provided in 2018 expires, placing more projects at risk of
delay.
We have specific examples. The Stonewall project in Montana's
Helena-Lewis and Clark Forest was a proposed vegetative management
project that would have benefited elk and other wildlife, but it was
delayed by Cottonwood litigation. In 2017 the Park Creek and Arrastra
wildfires burned over half of the proposed treatment area with
intensities that damaged some of the soils in the area. This was
economically and ecologically costly.
In April 2022, the Hermit's Peak Fire in New Mexico began as a
prescribed fire that got out of control. The Forest Service's Wildfire
Review Report provided several important lessons, but it was noteworthy
to us that treatment was delayed from September 2019 to October 2020 by
a Cottonwood-related injunction, and by Covid staffing issues following
that. A thinned project area would have had lower wildfire risk. The
subsequent 341,000-acre fire has not been good for threatened Mexican
Spotted Owls, elk, other wildlife, or people.
Fixing the Cottonwood Decision has had bipartisan support since the
ruling came down. The Obama administration appealed the decision in
2016, the Trump administration addressed it with a Rule that was never
finalized, and in the 117th Congress a bipartisan 16-4 vote in the
Senate Energy & Natural Committee provided hope that a solution was in
reach.
HR 200, the Forest Information Reform Act would close the open loop
that the Cottonwood decision created and prevent redundant and costly
delays for re-consultation under the Endangered Species Act. The Rocky
Mountain Elk Foundation strongly supports this legislation.
Forest management for habitat improvement and for hazardous fuel
reduction are often very similar, every acre treated through thinning,
prescribed burning and other treatments help achieve the resiliency
laid out in the Forest Service 10-year Wildfire Crisis Strategy.
However, reporting only the acres treated may convey that more progress
is being achieved than what is truly happening on the ground, and a
single high risk acre may be counted multiple times as subsequent
treatments occur.
HR 1567, the ACRES Act, will help Congress and the public gain a
better understanding of the state of America's forest lands, and the
progress or deterioration that is occurring while the land agencies
attempt to accelerate mitigation efforts with the new resources
recently provided by Congress.
As increased funding flows to wildfire mitigation and forest
management we fear that the level of on-the-ground projects that
Congress envisions will be stymied by litigation, frustrating everyone.
The Rocky Mountain Elk Foundation thanks the Committee for the
opportunity to participate today.
______
Mr. Tiffany. Thank you, Mr. Bronson. I would now like to
recognize Mr. Steve Ellis, who is the Chairman of the National
Association of Forest Service Retirees.
Prior to this role, Mr. Ellis served for 38 years with both
the Forest Service and the Bureau of Land Management. Mr. Ellis
has extensive experience fighting wildfires, and was once a
type 3 incident commander. Mr. Ellis' daughter was also a
wildland firefighter, and she was killed in action serving her
country in Iraq.
Mr. Ellis, I would like to thank you for your service and
your daughter's service to our nation, and you are now
recognized for 5 minutes.
STATEMENT OF STEVE ELLIS, CHAIRMAN, BOARD OF DIRECTORS,
NATIONAL ASSOCIATION OF FOREST SERVICE RETIREES, BEAVER CREEK,
OREGON
Mr. Ellis. Thank you, Chairman Tiffany, Ranking Member, and
members of the Committee. I appreciate the chance to testify
this afternoon on H.R. 1586, a crucial and timely bill to allow
for the continued use of fire retardant by our nation's
wildland firefighters. I am Steve Ellis, retired after 38 years
of Federal service with both the Forest Service and BLM. I am
currently Chair of the National Association of Forest Service
Retirees.
Our organization is pleased that Congress has chosen to
engage in the matter of fire retardant use. There are a few key
points that I would like you to know about this issue.
First of all, we as agency retirees know a lot about fire
suppression, prescribed fire, and wildland fire use. Fire
management can be complex and requires the use of many
important tools. Fire retardant is one of the most crucial.
As fire season has already begun this year, removing such
an important tool from the tool kit is a threat to firefighter
and public safety, it is a threat to watersheds, wildlife, and
human health in the form of smoke.
Requiring a national permit for the use of fire retardant
is not the way to go. It would take years to complete at
substantial cost. Even if EPA were to develop a national
permit, states would not be required to adopt it, could modify
it, create their own, and that would put an additional burden
on Federal and State agencies developing these state permits,
and it would further complicate firefighting across state
lines.
Retardant is already regulated with numerous implementation
and monitoring requirements that guide safe and successful use
of retardant by Federal and state agencies. Given all this, we
believe Congress needs to step in to maintain the status quo
and codify the 30-year exemption for the use of fire retardant.
That is why we support H.R. 1586.
Now, there is a camp out there that has been attempting
since about 2003 to restrict or even prohibit the use of fire
retardant by the Forest Service. I recall several years ago,
when the agency was ordered to take a tougher look at the
possibility that routinely dropping fire retardant on wildfires
from aircraft would kill fish and plants. Many positives
actually came out of this.
I remember the agency taking a hard and thoughtful look at
retardant, and some solid protocols were the result. Those
protocols focused on protecting waterways, aquatic habitat,
firefighters, and communities. The protocols also included
monitoring, which I view as a positive. The monitoring found
that less than 1 percent of the drops between 2012 and 2019
went directly into water. Yet, here we are again.
There isn't enough time this afternoon for me to detail to
you all the instances I experienced, I am aware of where
single-engine airtankers with retardant likely saved many
thousand acres of critical sage grouse habitat from burning up
following a lightning outbreak. There might not be enough seats
back here in this hearing room to hold the number of retired
Forest Service and BLM colleagues of mine who could describe
instances where retardant drops were key to protecting
property, people's lives, a community, key watersheds,
transmission line corridors, and also keeping new starts from
becoming big project fires. We call that initial attack.
There are some out there who oppose this legislation who
have never been on the fire line, nor have they had to stand up
at a community center or a gymnasium full of members of the
community that are scared, concerned citizens to explain their
actions when a wildfire is threatening a community. They simply
have never had accountability for the consequences of these
risky and consequential decisions. Many of my colleagues and I
have been in those situations many times.
As Members of Congress know, especially those of you that
are from the West, when a wildfire is threatening your
constituents' community, they become panicked, they are scared,
and your phone starts to ring. And then your staff calls the
Forest Service or whichever agency has jurisdiction. I received
many such calls during my career, and in most of these calls I
was routinely asked by your staff, ``Where are the airtankers?
Are you using airtankers?''
We all know that fire seasons are getting longer, the fires
are getting bigger. There is not enough time today for me to
get into the details of why I think that is so. But what I can
say is this is not the time to take the air delivery of fire
retardant out of the fire practitioner's toolbox.
Thank you for engaging in this important issue to protect
our natural resources, our communities, our firefighters'
lives. I welcome any questions the Committee might have. Thank
you, Mr. Chairman.
[The prepared statement of Mr. Ellis follows:]
Prepared Statement of Steve Ellis, Chair, National Association of
Forest Service Retirees
on H.R. 1586
H.R. 1586, Forest Protection and Wildland Firefighter Safety Act of
2023
Chairman Tiffany, Ranking Member Neguse and Members of the
Committee, I appreciate the chance to testify today on H.R. 1586, a
crucial and timely bill, to allow for the continued use of fire
retardant by our Nation's wildland firefighters. I'm Steve Ellis,
retired after 38 years of federal service with both the Forest Service
and Bureau of Land Management. I have a lot of fire management
experience with both agencies. I am Chair of the National Association
of Forest Service Retirees (NAFSR). We are an organization dedicated to
sustaining the Forest Service mission and adapting to todays and
tomorrow's challenges. Our principal beliefs and values include
protecting and managing diverse lands and valued resources while
providing a wide array of uses and services to the public. This
includes providing for clean water and quality aquatic and terrestrial
habitat. Our values also include responding professionally and
responsibly in support of the agency's efforts to protect public
interest and ensure public safety.
1. We know a lot about fire suppression, prescribed fire, and
wildland fire use.
2. Management of fire requires the use of many important tools; fire
retardant is one of the most crucial.
3. As fire season has already begun this year, removing such an
important tool from the toolkit is an existential threat to
firefighters and the public safety, as well as watersheds,
wildlife, and smoke as a health hazard.
4. Requiring a national permit for the use of retardant would take
years to complete at a substantial cost, and would create a
bad precedent, putting other agricultural and silvicultural
exemptions at risk.
5. Even if EPA were to develop a national permit, states would not
be required to adopt it, but could modify or create their
own, putting an additional burden on federal and state
agencies for the development of individual state permits.
This would further complicate firefighting across state
lines.
6. Retardant is already regulated with numerous implementation and
monitoring requirements that guide the safe and successful
use of retardant by Federal and State agencies.
7. Given all this, we believe Congress needs to step in to maintain
the status quo and codify the 30-year exemption for the use
of retardant. That's why we support H.R. 1586.
This past fall, Forest Service Employees for Environmental Ethics
(FSEEE) filed a lawsuit in Montana District Court under the ``citizen
suit'' provision of the Clean Water Act (CWA) alleging violations of
the CWA for past discharges of aerial fire retardant into navigable
waters without a National Pollutant Discharge Elimination System
(NPDES) permit. The 2011 Aerial Application of Fire Retardant EIS
delineated more than 30% of USFS land area as retardant avoidance areas
and developed a tracking process to monitor inadvertent drops into
water. The 2011 decision prohibits delivery of fire retardant directly
into waterbodies, or into buffers surrounding waterbodies, with an
allowed exception to protect life and safety.
In the draft 2022 Aerial Fire Retardant SEIS, the Forest Service
disclosed that 376 out of 56,868 total fire retardant drops (less than
one percent) made between 2012 and 2019 were directly into water,
because of unintended encroachments on waterbodies, or the exception
allowed to protect life and safety. FSEEE is alleging these direct
drops into waterbodies violate the CWA because the Forest Service did
not have a NPDES permit. The CWA requires NPDES permits for any
addition of a pollutant from a point source to navigable waters/waters
of the United States, which essentially means any waterway with
permanent water. The Forest Service has been operating under the
assumption that a NPDES permit was not required because the regulations
for administering the NPDES system (40 CFR 122) specifically state that
fire control is a ``non-point source silvicultural activity'' (40 CFR
122.27) and communications from EPA dating back to 1993 indicated a
permit was not required.
Currently there is no NPDES permit established for aerial
application of fire retardant. We understand that a rulemaking to
establish a general permit would take 2-3 years at extensive cost. Even
if EPA develops a national permit, states are not required to adopt it,
but can modify or create their own. As a result, additional time would
be required for the agency to obtain individual state permits. This
would further complicate firefighting across state lines and
potentially create unnecessary chaos in an already complex and risk
laden environment. A NPDES permit would add a large administrative
burden to Forest Service wildfire operations and likely not change
aerial application requirements, nor actual resource effects on the
ground.
FSEEE is requesting the Forest Service not to use fire retardant
until the permit is secured. This could result in fire retardant not
being available for use starting this 2023 fire year and would
needlessly put billions of dollars of infrastructure/assets/natural
resources and millions of people at risk. More importantly, it would
remove a key tool used to safely fight wildfires and put at risk local,
county, state, and federal firefighters at a time where wildfire is
increasing in scale and scope across the western United States. Any
court ruling has the potential to be nation-wide and affect the
Department of the Interior (DOI), state fire agencies, and the
Department of Defense (DOD), essentially all those who fight wildfires
on federal, state and private lands. In our view, Congress will need to
pass legislation, either to give agencies time to develop a national
permit or to codify the existing firefighting exemption.
At a minimum, a potential solution would be to pursue a legislative
fix that would allow the agency time to work through the permitting
process while continuing to use fire retardant. A much better and
permanent solution would be to legislate that a permit not be required,
nor should any State require a permit for application of fire retardant
from aircraft in connection with fire suppression activities. We
support the latter. Many members of NAFSR are former wildland
firefighters and understand the need and use of fire retardant as a
critical tool, as well as the need to ensure its careful use. We feel
that not having the option of using fire retardant in fire suppression
would have huge consequences. Congress may also find it unacceptable to
stand by in the middle of this summer as a wildfire threatens life,
property, and valuable natural resources without the use of fire
retardant.
NAFSR sees fire retardant is a necessary tool in the fire manager's
toolkit. Given that the rare instances of ``retardant into waterways''
are either accidents or to protect property or human life, it's not
clear to us what improvement could be made by the EPA. Do they disagree
with the judgment calls of on the scene fire practitioners on the
exceptions? Will a NPDES permit stop accidents or change implementation
of the agency priority of firefighter and public safety? Since 1995,
Federal Fire Policy has had human life as the #1 value. This has
essentially been the doctrine for almost 30 years. Nobody wants to harm
aquatic life. In fact, the aftermath of large wildfires can be an even
greater threat. If using retardant is the difference between saving
some of our colleagues in the green pants and yellow shirts who are in
a bad spot, or say, hitting a waterway . . . our priority would be
human life. I have talked to several colleagues who have either
experienced or known of instances where retardant drops at the right
time and place made all the difference in life and/or property
protection outcomes. The bottom line is that the Forest Service has
been diligent in efforts to use retardant wisely to minimize negative
environmental effects and statistics show those efforts have been
effective.
If there are ecological or other concerns with the use of
retardant, then maybe those concerns should be specifically identified
and addressed in some kind of public forum. In the meantime, we do not
believe any tools should be removed from the agency's fire management
toolkit.
NAFSR also supports H.R. 200, the Forest Information Reform (FIR)
Act. We feel that unless actions are taken to resolve challenges
stemming from the 2015 ``Cottonwood'' decision, the Forest Service
could have to go through re-consultation, regardless of the merit, on
dozens of forest plans that would take years and potentially cost
millions of dollars that could better be spent elsewhere.
Thank you for the opportunity to be part of this hearing today.
Also included in my testimony is an addendum that includes some
important background information. I welcome any questions that
subcommittee members might have.
______
Supplemental Testimony
National Association of Forest Service Retirees
H.R. 1586, Forest Protection and Wildland Firefighter Safety Act of
2023
All long-term Retardants used in airtankers are evaluated
through the US Forest Service National Technology and
Development Center, Wildland Fire Chemical Systems (WFCS).
Evaluations are based on a number of factors including
fire-retarding effectiveness, physical parameters, aquatic
toxicity and human health and ecological assessments. WFCS
must first evaluate and approve long-term fire retardants
before their use on Federal lands. Only those fire
chemicals that have been evaluated and tested by WFCS are
allowed to be used in wildland firefighting.
Long-term retardants contain retardant salts--typically
agricultural fertilizers--that alter the way the fire
burns, decreases the fire intensity, and slows the advance
of the fire, even after the water they originally contained
has evaporated. Studies conducted by the U.S. Forest
Service Wildland Fire Chemical Systems Program, located at
the National Technology and Development Center in Montana,
show that long-term retardants retain much of their
effectiveness in reducing fire intensity and spread after
the water they contain has evaporated. The amount of time
that long-term retardants are effective in reducing fire
intensity and spread after the water they contain has
evaporated varies from several days to up to one week or
more depending on vegetation type, coverage levels,
precipitation, and other factors.
In 2011 the US Forest Service completed the Aerial
Application of Fire Retardant Environmental Impact
Statement (EIS) which delineated more than 30% of USFS
administered as retardant avoidance areas and developed a
tracking process to monitor inadvertent drops into water.
The 2011 decision prohibits delivery of fire retardant
directly into waterbodies, or into buffers surrounding
waterbodies, with an allowed exception to protect life and
safety.
In researching aerial operation records for the draft 2022
Aerial Fire Retardant SEIS, the Forest Service found that
376 out of 56,868 total airtanker drops (less than one
percent) made between 2012 and 2019 were directly into
water, because of intrusions or the exception allowed to
protect life and safety.
The Clean Water Act (CWA) requires National Pollution
Discharge Elimination System (NPDES) permits for any
addition of a pollutant from a point source to navigable
waters/waters of the United States. The Forest Service has
been operating under the assumption that a NPDES permit was
not required because the regulations for administering the
NPDES system (40 CFR 122) specifically state that fire
control is a ``non-point source silvicultural activity''
(40 CFR 122.27) and communications from EPA dating back to
1993 indicated a permit was not required.
There is no NPDES permit established for aerial
application of fire retardant. A rulemaking to establish a
general permit will take 2-3 years for a General Permit
with an additional 1+ years to obtain 47 individual state
permits. Because the EPA has already delegated permitting
authority to most States, the EPA's general permit is
geographically very limited. Each of the upwards of 40
individual regulatory agencies that have NPDES authority
would need to go through a rulemaking to establish their
own general permit using EPA's general permit as a model.
Each regulatory agency would have the opportunity to apply
their own specific conditions, making the use of airtankers
across the nation very difficult.
There are many technical reasons that a new permit would
be burdensome. The bottom line is that the Forest Service
has been diligent in efforts to use retardant wisely to
minimize negative environmental effects and statistics show
those efforts have been effective. Further restrictions on
the use of retardants are not only unnecessary but would
likely increase the negative environmental effects that
occur from wildfire, including negative effects on streams,
watersheds and other important resources.
Should the Forest Service not be able to defend liability
in case brought by FSEEE, this could result in fire
retardant not being available for use in the 2023 fire year
and would put billions of dollars of infrastructure/assets
and millions of people at risk. More importantly, it would
remove a key tool used to safely fight wildfires and put at
risk local, county, state and federal firefighters at a
time where wildfire is increasing in scale and scope across
the western United States. Any court ruling has the
potential to be nation-wide and affect the Department of
the Interior (DOI), state fire agencies, and the Department
of Defense (DOD).
The Forest Service has been using fire retardants for over
70 years. There are many examples of the effectiveness of
fire retardant in stopping wildfire spread. One example was
the 2020 Grizzley Creek Fire that started in Glenwood
Canyon, CO and rapidly spread west out of the I-70 canyon
corridor and into the eastern edge of Glenwood Springs, CO.
The fire was caught by airtankers on the very northeast
corner where the White River National Forest and City of
Glenwood Springs lands meet. The Incident Management Team
in charge then placed a portable retardant plant on the
west bound lanes of I-70 for use by Type 1 helicopters
doing bucket support with retardant for ground crews
working their way up the canyon. An effective use of
aviation assets and retardant in firefighting.
______
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
------
Mr. Tiffany. Yes, thank you, Mr. Ellis. I now recognize
Representative Hoyle for 30 seconds to introduce our fourth
witness.
Ms. Hoyle. Thank you, Mr. Chairman and Ranking Member. It
is an honor to introduce Susan Jane Brown, an Oregonian, to the
Subcommittee this afternoon. Ms. Brown is a senior staff
attorney with the Western Environmental Law Center. Her primary
focus of litigation is Federal public land forest management,
but her practice includes cases involving Endangered Species
Act, National Environmental Policy Act, National Forest
Management Act, and other land management statutes.
She teaches forest law and policy at Lewis and Clark Law
School in Oregon, a former co-chair of the National Advisory
Committee for Implementation of the National Forest System Land
Management Planning Rule, serves on the Federal Advisory
Committee for Collaborative Forest Landscape Restoration
Program, and is heavily engaged in a collaborative forest
restoration in the Upper John Day Basin in Eastern Oregon.
This is the kind of collaborative approach that we need to
do to bring together environmentalists, the timber industry,
those of us who live in rural communities, and the wildland-
urban interface who are at the forefront of seeing the effects
of climate change through drier weather and extreme, intense,
and long fire seasons. She is an expert in her field, and has
been an invaluable resource to me, my staff, as well as former
Congressman Peter DeFazio, as the 4th District is 85 percent
forest land, 70 percent timber land, with a mix of Forest
Service, BLM, tribal-managed lands, and private timber land. I
am glad the Subcommittee will get to hear from her today as we
discuss forest management. Thank you.
Mr. Tiffany. Ms. Brown, you are now recognized for 5
minutes.
STATEMENT OF SUSAN JANE M. BROWN, SENIOR STAFF ATTORNEY,
WESTERN ENVIRONMENTAL LAW CENTER, EUGENE, OREGON
Ms. Brown. Chairman Tiffany, Ranking Member designate, and
members of the Subcommittee, thank you for the opportunity to
join you today to discuss H.R. 200, the Forest Information
Reform Act, and H.R. 1567, the Accurately Counting Risk
Elimination Solutions Act.
Thank you, Congresswoman Hoyle, for the kind introduction.
I appreciate the opportunity to continue working with the
Representative of Oregon's 4th Congressional District to
steward our lands and waters for future generations of
Oregonians and all Americans.
Thank you also to Congressman Bentz, my Congressman
representing the 2nd Congressional District, for the
opportunity to appear before your Committee today.
My name is Susan Jane Brown, and I am a Senior Staff
Attorney for the Western Environmental Law Center, or WELC. We
are based in Eugene, Oregon, with offices in Portland, Bend,
and Lostine, Oregon; Seattle, Washington; Taos and Santa Fe,
New Mexico; Buena Vista, Colorado; and Helena, Montana.
WELC uses the power of the law to defend and protect the
American West, treasured landscapes, iconic wildlife, and rural
communities. We combine our legal skills with sound
conservation biology and environmental science to address major
environmental issues in the West in the most strategic and
effective manner. WELC works at the national, regional, state,
and local levels, and in all three branches of the government.
WELC is also deeply engaged in collaborative forest
conservation in Oregon, working closely with the Blue Mountains
Forest Partners and Harney County Forest Restoration
Collaborative on the Malheur National Forest, the Deschutes
Collaborative Forest Project on the Deschutes National Forest,
and the Northern Blues Forest Collaborative on the Umatilla and
Wallowa Whitman National Forest, all located in eastern and
central Oregon in Congressman Bentz's district.
Although I would prefer to discuss WELC's collaborative
conservation efforts in Oregon, today I am wearing my proud
environmental litigator hat in defense of the Endangered
Species Act, our nation's premier wildlife conservation law. As
a nation of laws, their enforcement is central to our
democracy.
Citizen enforcement of congressional intent embodied in
Federal environmental laws stems from the constitutional right
of all Americans to petition their government for redress, and
is part of a long and powerful history of social change.
Hindering access to the courts for forest management issues
should be met with criticism for the precedent that it would
represent and the controversy that it would create.
The Cottonwood decision is not the demon that its
detractors in the Forest Service make it out to be. Indeed, the
premise of that decision, that forest plans are ongoing agency
actions over which the agency retains exclusive control, are
subject to reinitiation of consultation has been the law of the
land in the 9th Circuit's jurisdiction, which includes Alaska,
Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon,
Washington, Guam, and the Northern Mariana Islands, covering
123 million acres across 128 units of the National Forest
System since 1994.
This holding has been affirmed numerous times by the 9th
Circuit, and yet the Forest Service has been able to actively
manage our national forests here, despite this fact. The sky
will not fall today simply because the 2018 fix expires.
Indeed, when new species are listed, new critical habitat
designated, or new information comes to light affecting
decisions made in the underlying forest plan, the Forest
Service nearly always does the right thing and follows the law
by re-initiating consultation to address these changed
circumstances. Only rarely is litigation required to compel
compliance with the law, and then most re-initiations are
completed expeditiously.
The real problem that should enjoy widespread bipartisan
support in solving is the fact that most of our forest plans
are woefully out of date. Congress should therefore eliminate
the annual Interior appropriations rider that exempts the
Forest Service from the National Forest Management Act
requirement to revise its forest plans not more than every 15
years. Eliminating this exemption could increase the urgency
and rate at which the Forest Service revises its plans.
The Forest Service's Federal Advisory Committee on the
agency's 2012 planning rule, on which I served for 6 years,
including 2 years as its co-chair, provided Secretary Vilsack
with 66 consensus recommendations on how to improve and
expedite the planning process. Yet, few of those
recommendations have been implemented. There are lessons
learned here that just are waiting to be adopted.
Moreover, Congress recently invested more than $8 billion
in new money in Forest Service land management through the
Infrastructure Investment and Jobs Act and the Inflation
Reduction Act, including for forest planning and ESA
consultation. The agency now has a substantial influx of
funding to accomplish foundational land management planning and
species consultation, which should make the need for H.R. 200
obsolete. Congress should wait and see how the Forest Service
utilizes this new investment before intervening in the re-
initiation process.
Thank you for the opportunity to testify today. I look
forward to our conversation and answering any questions you may
have.
[The prepared statement of Ms. Brown follows:]
Prepared Statement of Susan Jane M. Brown, Western Environmental Law
Center
on H.R. 200 and H.R. 1567
Chairman Tiffany, Ranking Member Neguse, and members of the
subcommittee, thank you for the opportunity to join you today to
discuss H.R. 200, the Forest Information Reform Act, and H.R. 1567, the
Accurately Counting Risk Elimination Solutions Act.
My name is Susan Jane M. Brown, and I am a Senior Staff Attorney
with the Western Environmental Law Center (WELC). We are based in
Eugene, Oregon, with offices in Portland, Bend, and Lostine, Oregon;
Seattle, Washington; Taos and Santa Fe, New Mexico; Buena Vista,
Colorado; and Helena, Montana. WELC uses the power of the law to defend
and protect the West's treasured landscapes, iconic wildlife, and rural
communities. We combine our legal skills with sound conservation
biology and environmental science to address major environmental issues
in the West in the most strategic and effective manner. WELC works at
the national, regional, state, and local levels and in all three
branches of government. We integrate national policies and regional
perspective with the local knowledge of our 150+ partner groups to
implement smart and appropriate place-based solutions.
WELC is also deeply engaged in collaborative forest conservation in
Oregon, working closely with the Blue Mountains Forest Partners and
Harney County Forest Restoration Collaborative on the Malheur National
Forest, the Deschutes Collaborative Forest Project on the Deschutes
National Forest, and the Northern Blues Forest Collaborative on the
Umatilla and Wallowa-Whitman National Forests, all located in eastern
and central Oregon.
I am a proud environmental litigator. My primary focus of
litigation is federal public lands forest management, and my practice
includes cases involving the Endangered Species Act, National
Environmental Policy Act, National Forest Management Act, Oregon and
California Lands Act, and other land management statutes. I am an
Adjunct Professor of Law at Lewis and Clark Law School, where I have
taught Forest Law & Policy to upper division law students for the past
14 years. Both my litigation and pedagogy have been heavily influenced
by not only my collaborative experience, but also my tenure as Natural
Resources Counsel for Congressman DeFazio, a former Member of this
Committee.
Today I am testifying on H.R. 200, the Forest Information Reform
Act, and H.R. 1567, the Accurately Counting Risk Elimination Solutions
Act.
H.R. 200, the Forest Information Reform Act
H.R. 200, the Forest Information Reform Act, would exempt the
Forest Service and Bureau of Land Management (BLM) from reinitiating
consultation on applicable land management plans (forest plans) in
three circumstances: 1) when a new species is listed under the
Endangered Species Act (ESA); 2) when new critical habitat is designed
under the ESA; or 3) when new information about a listed species or its
critical habitat becomes available. The legislation is a false solution
in search of a nonexistent ``problem'' and should not advance out of
the Subcommittee.
Intentionally ignoring the dangers of climate change is reckless
and myopic at best, and yet disregarding new information about climate
change effects on listed species and their critical habitat is exactly
what H.R. 200 does. Climate change is dramatically affecting our
forests, whether manifested as increased droughts, insects, disease,
floods, wildfire, species range shifts, or other effects.\1\ Most
forest plans are woefully out of date \2\ and do not address how
climate change could affect national forest resources and provide
direction to lessen the impacts to wildlife and human communities.
Ignoring these obvious ecological changes by failing to reinitiate
consultation on forest plans to ensure that native biodiversity is
conserved for future generations is akin to burying one's head in the
sand and hoping for the best. But this is not what the National Forest
Management Act (or the Federal Land Policy and Management Act) require
of our federal land managers: instead, the Forest Service and BLM must
use the best available science to inform land management,\3\ and
sometimes that best available science indicates that land management
plans require reevaluation.
---------------------------------------------------------------------------
\1\ United Nations Intergovernmental Panel on Climate Change
(IPCC), Synthesis Report of the IPCC Sixth Assessment Report, Summary
for Policymakers, available at https://report.ipcc.ch/ar6syr/pdf/
IPCC_AR6_SYR_SPM.pdf (March 20, 2023).
\2\ Erin H. Ward, Katie Hoover, and Pervaze A. Sheikh,
Congressional Research Service, Legal and Practical Implications of the
Ninth Circuit's Cottonwood Environmental Law Center v. U.S. Forest
Service Decision Under the Endangered Species Act, CRS Report R47201
(Aug. 2, 2022) (hereinafter ``CRS''), 3.
\3\ See, 16 U.S.C. Sec. 1604; 43 U.S.C. Sec. 1712(b)(2).
---------------------------------------------------------------------------
Additionally, H.R. 200's purported reliance on project-level
consultation rather than plan-level consultation will not create
efficiencies or conduct sufficient analysis as required by the ESA in
two ways.
One, many types of forest management do not require or do not
receive project-level authorization and therefore will not be subject
to project-level consultation. For example, both winter and summer
recreational off-road vehicle use is not subject to project-level
authorization and yet often has significant adverse effects on listed
species and their critical habitat. Likewise, domestic livestock
grazing authorization, while subject to project-level (or, allotment-
level) analysis and consultation, is woefully behind schedule and many
western allotments either have no environmental analysis at all, or
analysis that is decades-old. This use of the national forests also can
have substantial adverse effects on listed species and critical
habitats, and yet would generally escape ESA review under H.R. 200.
Two, project-level consultation intentionally looks only at the
project decision under consultation and often fails to consider the
cumulative effects on listed species and critical habitat of many
different uses of a national forest on either that project's geography
or across the entire national forest: this broadscale look only happens
at the forest plan level. Consequently, a project-level consultation on
a timber sale (for example) only looks at how that timber sale affects
the listed species and critical habitat within that timber sale area,
and not how climate change, increased wildfire occurrence and severity,
and reduced water flows affect that species and its habitat that exists
across the national forest. This piecemeal approach fails to capture
important ecological effects at the appropriate scale.\4\ While
project-level consultation is essential, it is not, alone, sufficient.
---------------------------------------------------------------------------
\4\ Indeed, this approach essentially asks each project-level
consultation to do the work of plan-level consultation. Because under
H.R. 200 there would be no requirement to reinitiate consultation on a
forest plan in most cases, each project-level consultation would
require more analysis in the first instance, rather than personnel
being able to incorporate the more comprehensive and current forest
plan-level analysis into project-level consultation, and would require
personnel to reanalyze plan-level effects in each project-level
analysis. This is not an efficient process.
---------------------------------------------------------------------------
In addition to being bad policy, the justification for H.R. 200
rests on false premise. As the Subcommittee well knows, responding to
the Ninth Circuit Court of Appeals' affirmation of Pacific Rivers
Council v. Thomas, 30 F.3d 1050 (9th Cir. 1994) (Pacific Rivers) in
Cottonwood Law Center v. United States Forest Service, 789 F.3d 1075
(9th Cir. 2015) (Cottonwood) has been of high interest to those in
Congress who believe that Cottonwood hinders forest management within
the jurisdiction of the Ninth Circuit (i.e., Alaska, Arizona,
California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam,
and the Northern Mariana Islands). In response to this interest, the
Congressional Research Service (CRS) released a report in August 2022
that sought to bring clarity to these claims, Legal and Practical
Implications of the Ninth Circuit's Cottonwood Environmental Law Center
v. U.S. Forest Service Decision Under the Endangered Species Act. Two
important facts emerged from CRS' review.
First, CRS concluded that ``Estimating or analyzing the effects of
the Cottonwood decision (and the subsequent omnibus legislative fix) on
[Forest Service, FS] operations and resources is challenging, primarily
due to data constraints.'' \5\ Although the Forest Service has alleged
in congressional testimony and elsewhere that Cottonwood precludes
expeditious implementation of forest management activities and that
``reinitiating consultation `` `takes numerous resources away from
getting work done on the ground,' '' \6\ CRS found that in fact
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\5\ CRS, 16.
\6\ CRS, 16 FN 111 (quoting former Forest Service Chief Vicki
Christensen).
The FS has provided limited data to support or refute these
claims. Similar to many other federal agencies, the FS does not
routinely track or report the cost or personnel time associated
with the development of forest plans or project-level
decisions, engaging in consultation, or responding to
administrative or judicial challenges to those decisions. For
project-level planning, the FS does not routinely track the
time between the publication of a decision document and the on-
the-ground implementation of that project. Because of these
limitations, there is insufficient baseline data with which to
authoritatively identify and compare the effect specific
factors may have on staffing or project development and
implementation timelines. These data constraints also limit
resource allocation comparisons between those national forests
bound by the different circuit court decisions.\7\
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\7\ CRS, 16; see also id. at FN 112 (explaining that time and
expense data that was verifiable lacked context to evaluate its
significance).
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It is alarming that--based on no objective data whatsoever--the
Forest Service would allege that an appellate court decision that
merely affirms what has been black letter law in the largest Court of
Appeals for more than thirty years precludes mission critical work. As
an agency that is statutorily bound to make land management decisions
based on interdisciplinary scientific information,\8\ the Forest
Service's policy position is disappointing to say the least.\9\
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\8\ 16 U.S.C. Sec. 1604.
\9\ That the agency has steadfastly held this position in the Biden
administration is perplexing, given the Administration's purported
emphasis on the use of science in decisionmaking and the need to
address the biodiversity and climate crises by conserving important
landscapes. See, Restoring Trust in Government Through Scientific
Integrity and Evidence-Based Policymaking, 86 Fed. Reg. 8,845 (Jan. 27,
2021); Executive Order 14008, Tackling the Climate Crisis at Home and
Abroad, 86 Fed. Reg. 7,619 (Feb. 1, 2021).
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Second, ``CRS examined FS timber harvest data from FY2015 (the year
Cottonwood was decided) through FY2021 and was unable to identify any
noticeable difference in the overall volume of timber sold or harvested
across the entire NFS and between the NFS units covered by the Ninth
Circuit relative to other NFS units.'' \10\ The lack of a causal
relationship between Cottonwood and timber sold or harvested between
the Ninth and Tenth Circuits further indicates that Cottonwood is not
the demon its detractors suggest.\11\
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\10\ CRS, 17.
\11\ Indeed, since Cottonwood merely affirms what has been the law
in the Ninth Circuit since 1994 when Pacific Rivers was decided, and
yet the national forests within the Ninth Circuit have consistently
been the highest timber volume producing forests since 1994, it is a
truism that neither Cottonwood nor Pacific Rivers have had any
meaningfully adverse effect on timber production. See, United States
Forest Service, Forest Products Cut and Sold from the National Forests
and Grasslands, available at https://www.fs.usda.gov/forestmanagement/
products/cut-sold/index.shtml (last visited March 18, 2023).
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Information received from a Freedom of Information Act (FOIA)
request to the Forest Service seeking data on the instances when the
agency was compelled to reinitiate consultation between 2017-2020 shows
that reinitiation of consultation happens rarely and can be concluded
quickly. Across the 154 national forests and 20 national grasslands
that comprise the National Forest System, the agency reinitiated
consultation on only 7 plans per year on average,\12\ most frequently
(12 instances) due to the Forest Service voluntarily amending or
modifying its forest plan, a situation that does not implicate
Cottonwood or its fixes including H.R. 200.\13\ Four plans in the
southwest required amendment due to a court order finding that the
Forest Service failed to address the recovery of Mexican spotted owls,
another situation not implicated by Cottonwood.
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\12\ The FOIA request and responsive documents are available upon
request.
\13\ CRS, 3, 13.
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Four plans required reinitiation based on changed conditions, and
two plans required reinitiation based on new information, situations
where H.R. 200 would apply. In three situations new critical habitat
designations compelled reinitiation and only in one situation was
reinitiation required due to the listing of a new species under the
ESA. Thus, less than half of the forest plan reinitiations (i.e., 10
instances) were due to situations implicated by Cottonwood. In
addition, the FOIA response indicated that in many of these situations
the agency was able to initiate and complete consultation in days or
weeks without lengthy environmental documentation. The ``problem''
allegedly posed by Cottonwood is, in fact, much ado about very little
and does not warrant congressional intervention involving the nation's
premier wildlife conservation law.
Although the need for H.R. 200 is neither supported by the facts
nor is good policy, there are two solutions that should enjoy
bipartisan support.
First, Congress should eliminate the annual Interior Department
appropriations rider that exempts the Forest Service from the National
Forest Management Act requirement to revise its forest plans not more
than every 15 years.\14\ Although the Forest Service's 2012 National
Forest Management Act planning rule envisions revising plans within 3-4
years, it is questionable at best whether the agency is in fact making
diligent progress toward revising the more than 100 forest plans that
require updating.\15\ Eliminating this exemption could increase the
urgency and rate at which the Forest Service revises its plans.
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\14\ See, Pub. L. 117-103, div. G, title IV, Sec. 407, Mar. 15,
2022, 136 Stat. 410.
\15\ The 21-member Federal Advisory Committee chartered to advise
the Forest Service on implementation of the 2012 planning rule, on
which I served for 6 years including 2 years as co-chair, provided 66
consensus recommendations to Secretary Vilsack in 2018 regarding how
the Forest Service might improve and expedite its forest planning and
amendment process. United States Forest Service, Planning Rule FACA
Committee, FACA Committee Recommendations (available at https://
www.fs.usda.gov/Internet/FSE_DOCUMENTS/fseprd-575909.pdf) (Feb. 3,
2018). Few of those consensus recommendations have been implemented.
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Second, Congress recently invested more than $8 billion in new
money in Forest Service land management through the Infrastructure
Investment and Jobs Act and the Inflation Reduction Act, including for
forest planning and ESA consultation. The agency now has a substantial
influx of funding to accomplish foundational land management planning
and species consultation, which should make the need for H.R. 200
obsolete. Congress should wait and see how the Forest Service utilizes
this new investment before intervening in the reinitiation process.
H.R. 1567, the Accurately Counting Risk Elimination Solutions Act
As a policy matter, although WELC understands the utility and ease
of ``counting acres,'' we instead believe that land managers, the
public, and decision makers should be focused on measuring the outcomes
of land management. Until Congress directs the agencies to measure and
report on outcome-based indicators of performance rather than outputs,
however, WELC generally supports the premise of H.R. 1567 with two
small alterations based on our direct experience with the purpose of
the legislation in the context of collaborative forest management.
By way of background, as my opening statement notes, WELC is a
member of several forest restoration collaborative groups in eastern
Oregon. I am a founding member of the Blue Mountains Forest Partners
(BMFP), which works with diverse stakeholders on the Malheur National
Forest to restore large landscapes to reduce wildfire risk, conserve
wildlife habitat, and contribute to economic development of rural
communities dependent on national forest management. In 2012, the
Malheur was designated as a Collaborative Forest Landscape Restoration
Act (CFLRA) project, which brought 10 years of additional funding to
the Forest Service for the collaborative implementation and monitoring
of large landscape restoration projects on the Forest.\16\
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\16\ The Collaborative Forest Landscape Restoration Program (CFLRP)
is incredibly successful in building social license around forest
restoration and enjoys rare bipartisan support. WELC strongly supports
this program and urges Congress to support its reauthorization and an
expanded funding appropriation.
---------------------------------------------------------------------------
BMFP takes our applied science, monitoring, and adaptive management
very seriously. Based on the experience and knowledge of our
restoration contractors and forest products industry partners, BMFP
became concerned that we were not ``finishing treatments,'' meaning
that while the commercial timber harvest always occurred, other
restoration actions--prescribed burning, meadow restoration,
precommercial thinning, etc.--often lagged far behind or did not occur
at all: when multiple restoration actions were proposed for the same
acres (i.e., precommercial thin + commercial thin + fuels treatment +
wildlife enhancement + prescribed fire on the same acre), only some of
the actions were actually timely completed. And yet, the Forest Service
always reported substantial ``acres treated'' in annual budgetary and
congressional reports, which did not square with BMFP's on-the-ground
experience.
With a few years of implementation of our Collaborative Forest
Landscape Restoration Program (CFLRP) project under our belts, in 2018
we asked our partners at The Nature Conservancy (TNC) to provide BMFP
with an overview of the extent of our restoration work across the
Forest and whether we were treating sufficient acres to reduce wildfire
risk and restore ecological integrity across the landscape. Dr. Kerry
Kemp, a forest ecologist with TNC and now with the Forest Service,
spent months working with the Forest Service and agency databases to
get a complete picture of what acres we had touched with what
restoration action(s) and what action(s) remained in order to
``finish'' the necessary restoration BMFP and our partners believed
needed to occur.
Unfortunately, we were unable to complete our review. However, we
did learn that it was clear that the Forest Service's understanding of
what restoration actions had and had not occurred was completely
different than the experience of contractors who were doing the actual
work on the ground (and being paid by the federal government to
complete that work). Whether an issue of the lack of standardized
training of agency staff who use the database (employees have different
ways of viewing the data based on their area of expertise), agency
turnover and the lack of new staff familiarity with the Forest's
program of work, lack of a standardized definition of ``complete,'' or
political pressure to show ``acres treated'' and ``board feet
harvested,'' it was apparent that the Forest Service was double- and
triple-counting acres and yet still not finishing the job in the woods.
This is not an issue of sloppy or misleading contractors either.
BMFP's restoration contractors and logger partners keep detailed
records of their work in the woods and know exactly what work should
occur on what acres because they are under contract to complete that
work; but they also know when they aren't able to operate on those
acres due to weather, timing, or other constraints.\17\ Consequently,
our restoration contractors and logger partners have long lists of
acres that still require restoration activities, some of which have
been outstanding for years if not decades.
---------------------------------------------------------------------------
\17\ Another issue that BMFP has identified is that the acres
analyzed for restoration activities in approved National Environmental
Policy Act (NEPA) documents are often much greater than the acres that
the Forest Service advertises to contractors for either commercial or
non-commercial treatment. Thus, acres are ``left on the table'' that
could and should receive restoration.
---------------------------------------------------------------------------
This is not an isolated incident. BMFP participates in numerous
coalitions of forest collaborative groups across the west, and nearly
all of them report similar issues and frustrations. Investigative
journalists have also identified this problem.\18\ H.R. 1567, the
Accurately Counting Risk Elimination Solutions Act, would address a
substantial portion of this problem by bringing transparency to the
``counting acres'' issue. WELC suggests two modest alterations to the
legislative proposal.
---------------------------------------------------------------------------
\18\ Adiel Kaplan and Monica Hersher, NBC News, The Forest Service
is overstating its wildfire prevention progress to Congress despite
decades of warnings not to (available at https://www.nbcnews.com/news/
investigations/forest-service-overstating-wildfire-prevention-progress-
congress-decad-rcna41576) (Aug. 9, 2022).
First, Section 2(d)(1)(B)(i) defines ``hazardous fuels reduction
activity'' to exclude ``a wildland fire managed for resource
benefits,'' but this exclusion should be reconsidered before the bill
advances out of the Subcommittee. The use of beneficial fire (whether
prescribed or a natural ignition) for resource benefit is a significant
tool in the forest restoration toolbox \19\ and must be encouraged if
we are to successfully address the Wildfire Crisis.\20\ The Forest
Service should be able to ``count'' these beneficial fire acres,
provided the fire in fact had positive resource benefits as most
wildland fires do.\21\
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\19\ Hessburg et al., Climate, Environment, and Disturbance History
Govern Resilience of Western North American Forests, 7 FRONT. ECOL.
EVOL. 239 (2019). doi: 10.3389/fevo.2019.00239
\20\ United States Forest Service, Confronting the Wildfire Crisis:
A Strategy for Protecting Communities and Improving Resilience in
America's Forests (available at https://www.fs.usda.gov/managing-land/
wildfire-crisis) (Jan. 2022).
\21\ Merschel et al., An ecological perspective on living with fire
in ponderosa pine forests of Oregon and Washington: Resistance, gone
but not forgotten, TREES, FORESTS AND PEOPLE 4 (2021) available at
https://www.sciencedirect.com/science/article/pii/S2666719321000133?via
%3Dihub.
---------------------------------------------------------------------------
Second, after consultation with Tribes and cultural fire
practitioners, the Subcommittee should consider including ``cultural
burning'' within the scope of the legislation and consider including
the following definitions in Section 2: \22\
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\22\ Oregon State Legislature Representative Pam Marsh has proposed
these definitions as an amendment to Oregon House Bill 2985, which
would create a Prescribed Fire Liability Pilot Program in the State. In
turn, these definitions were borrowed from California's Senate Bill
926, enacted into law in 2022, that created a Prescribed Fire Liability
Pilot Program in that state.
`Cultural burn' means the intentional application of fire to
land by an Indian tribe or cultural fire practitioner to
achieve cultural goals or objectives identified by a tribal
ordinance, traditional tribal custom or law of an Indian tribe,
such as subsistence, ceremonial activities, biodiversity or
---------------------------------------------------------------------------
other benefits.
`Cultural fire practitioner' means a person associated with an
Indian tribe with experience in burning to meet cultural goals
or objectives, including subsistence, ceremonial activities,
biodiversity or other benefits.
`Indian tribe' means a federally recognized Indian tribe.
Although it no longer occurs at the rate or extent as it did prior
to European colonialization, cultural burning is an important tool to
restore forest ecological integrity, as well as a manifestation of
Indigenous sovereignty. Indigenous burning played a critical role in
establishing forest ecosystems and continues to play a necessary
stewardship role today. Tribes and Indigenous people across the country
have used fire for thousands of years, and cultural burning practices
are essential to the stewardship of plants and animals for food, fiber,
and sustenance, the provision of community safety, and Tribal
ceremonial, spiritual and religious practices. Thus, cultural burning
should be ``counted'' by the Forest Service as a legitimate forest
restoration action.
WELC would be pleased to work with the Subcommittee to make these
alterations to H.R. 1567.
Conclusion
I look forward to discussing H.R. 200 and H.R. 1567 with the
Subcommittee and answering any questions that the Subcommittee may
have. Thank you for the opportunity to share my thoughts and
experiences with you.
______
Questions Submitted for the Record to Susan Jane M. Brown, Senior Staff
Attorney, Western Environmental Law Center
Questions Submitted by Representative Westerman
Question 1. Please list any payments the Western Environmental Law
Center received under the Equal Access to Justice Act (EAJA) in the
past 10 years. Please disclose as applicable the case name, the court,
subject matter of the litigation, the type of judgment (i.e. court
settlement, court decision, agency settlement, etc.), the payment date,
the payment amount, and the hourly rate charged.
Answer.
Western Environmental Law Center Federal Litigation Matters
Fee Award History for the years 2013 to 2023
The following list summarizes case-specific fee and cost awards to
parties represented by the Western Environmental Law Center (WELC) and
paid to WELC in litigation with the federal government from 2013-2023.
We have provided information regarding all payments made pursuant to
all fee-shifting statutes, inclusive of the Equal Access to Justice
Act.
While we provide the case name, venue, and basic subject of the
case, we are unable to provide specific information regarding the fee
award mechanism (out of court settlement, court-approved settlement, or
court award); what percentage, in whole or in part, of the award was
made pursuant to the Equal Access to Justice Act versus other fee-
shifting statutes; and specific hourly rates, which change with case
and context. Even with further review, it may not be possible to
provide that information given how settlement agreements are
negotiated. For example, fee and cost settlements typically involve, in
the interest of settlement, an aggregate amount and do not involve
specific hourly rates.
Case filings and court orders and entries for each of the cases
below can be accessed via publicly-available electronic court records
by reference to the case number.
Saint John's Organic Farm & Peter Dill v. Gem County Mosquito Abatement
District and Gem County, No. 1:04-CV-00087-BLW (D. Id.): Gem County
Abatement. Payment Date: February 22, 2013, for $20,000.
Californians for Alternatives to Toxics v. U.S. Fish and Wildlife
Services, Civ. No. 2:10-cv-01477-GEB-CMK (D.E. Ca.); 12-16493 (9th
Cir.): Silver King Creek. Payment Date: March 5, 2013, for $8,000.
Community Assoc. v. Smith Brothers Dairy (purchased by Nelson Faria
Dairy Inc), No. 2:04-cv-03060 (D.E. Wa.): CAFO. Payment Date: May 9,
2013, for $74,880.
Wilderness Watch v. Wamoto and U.S. Forest Service, No. 2:10-cv-01797-
JCC (D.W. Wa.): Glacier Peak. Payment Date: June 12, 2013, for $70,000.
Citizens for a Healthy Community v. U.S. Department of Interior and
U.S. Bureau of Land Management, Civ, No. 1-12-cv-01661-RPM (D. Co.):
North Fork FOIA. Payment Date: September 11, 2013, for $100,107.
Pacific Rivers Council et al. v. Shepherd, Civ. No. 3:11-cv-442-HU (D.
Or.); 12-35570 (9th Cir.): WOPR, Pacific Rivers. Payment Date: December
28, 2013, for $5,039.
Center for Sierra Nevada Conservation, Center for Biological Diversity,
and Forest Issues Group v. Ramiro Villalvazo U.S. Forest Service, No.
2:09-cv-02523-LKK-JFM (D.E. Ca.): Eldorado Travel Management Plan.
Payment Date: February 19, 2014, for $26,846.
Cascadia Wildlands v. U.S. Forest Service, No. 6:12-cv-00804 (D. Or.):
Goose Timber Sale. Payment Date: May 27, 2014, for $59,787.
Cascadia Wildlands, et al. v. U.S. Bureau of Land Management, No. 6:12-
cv-00095-AA (D. Or.): North Fork Overlook. Payment Date: June 16, 2014,
for $31,727.
Animal Welfare Institute v. Animal and Plant Health Inspection Service,
No. 1:14-cv-00554-RCL (D. DC): Jaguar FOIA. Payment Date: August 20,
2014, for $12,670.
Montana Wilderness Association v. Connell, Kornze, U.S. Bureau of Land
Management, U.S. Dept of Interior, and Kania, No. 4:09-cv-00095-SHE (D.
Mt.); 11-35818 (9th Cir.): WSRA: Missouri. Payment Date: September 11,
2014, for $129,194.
Environmental Protection Information Center v. Lehr et al., No. 3:13-
cv-02293-MMC (D.N. Ca.): Trinity Hatchery. Payment Date: September 24,
2014, for $140,492.
The Wilderness Society v. U.S. Forest Service, No. 4:08-cv-00363 (D.
Id.): Sawtooth. Payment Date: September 30, 2014, for $115,111.
McClelland v. National Parks Service, No. 1:14-cv-01171-RBW (D. D.C.):
GNP Roost FOIA. Payment Date: November 5, 2014, for $15,033.
Greater Yellowstone Coalition v. U.S. Forest Service, No. 4:12-cv-00384
(D. Id.): Winchell-Dugway. Payment Date: December 17, 2014, for
$30,190.
Citizens for a Healthy Community and High Country Conservation
Advocates v. U.S. Forest Service, Fitzwilliams, O'Byrne, Broyles and SG
Interests I, LTD, SG Interests VII, LTD., No. 1:14-cv-00284-JLK (D.
Co.): Forest Service SUPO. Payment Date: February 6, 2015, for $22,515.
Friends of the Wild Swan v. Ashe, No. 9:13-cv-00057 (D. Mt.): Lynx.
Payment Date: May 13, 2015, for $104,060.
Native Fish Society v. National Marine Fisheries Service, No. 3:12-cv-
00431 (D. Or.): Sandy River Hatchery. Payment Date: May 14, 2015, for
$49,399.
WildEarth Guardians v. U.S. Fish and Wildlife Service, Civ. No. 14-1828
(RMC) (D. D.C.): Lynx FOIA. Payment Date: August 12, 2015, for $6,500.
Environmental Protection Information Center v. Ayer et al., No. 3:13-
cv-00656-MMC (D.N. Ca.): Mad River. Payment Date: August 31, 2015, for
$59,156.
Cascadia Wildlands v. U.S. Forest Service, No. 3:15-cv-00860-PK (D.
Or.): Wolf FOIA. Payment Date: December 11, 2015, for $4,413.
Powder River Basin Resource Council v. U.S. Bureau of Land Management,
No. 1:15-cv-00695-RBW (D. D.C.): Buffalo RMP FOIA. Payment Date:
December 31, 2015, for $8,411.
Klamath-Siskiyou Wildlands Center, Center for Biological Diversity, and
Klamath Forest Alliance v. National Oceanic and Atmospheric
Administration, National Marine Fisheries Service, and U.S. Fish and
Wildlife Service, No. 3:13-cv-03717-NC (D.N. Ca.): FGS HCP. Payment
Date: January 14, 2016, for $200,637.
The National Trust Historic Preservation, et al. v. Raymond Suazo, et
al., No. 2:13-cv-01973-DGC (D. Az.): Sonoran Desert. Payment Date:
February 12, 2016, for $182,352.
Powder River Basin Resource Council, et al. v. U.S. Bureau of Land
Management, No. 1:15-cv-01684-KBJ; Civ. No. 15-0695 (D. D.C.): NTL-4a
FOIA. Payment Date: September 23, 2016, for $12,305.
McKenzie Flyfishers, Steamboaters v. McIntosh, Patterson, Aguilar, No.
6:13-cv-02125-TC (D. Or.): McKenzie Chinook. Payment Date: October 31,
2016, for $210,927.
Cascadia Wildlands, et al. v. Woodruff, et al., Civ. No. 3:15-cv-05132-
RJB (D.W. Wa.): WA Wildlife Services. Payment Date: November 17, 2016,
for $69,699.
Montana Environmental Information Center v. U.S. Bureau of Land
Management, No. 4:11-cv-00015-SHE (D. Mt.): MT BLM Climate. Payment
Date: February 22, 2017, for $18,451.
Klamath-Siskiyou Wildlands Center, et al. v. Macwhorter and Waldo
Mining District, No. 1:12-cv-01900-PA (D. Or.): Suction Dredge. Payment
Date: February 22, 2017, for $34,812.
WildEarth Guardians v. U.S. Fish and Wildlife Service, No. 16-01983 CKK
(D. D.C.): Sonoran Desert Tortoise FOIA. Payment Date: March 15, 2017,
for $12,000.
Friends of Toppenish Creek v. Department of Health & Human Services and
The Indian Health Service, No. 1:16-cv-03013-SAB (D. Wa.): IHS FOIA.
Payment Date: March 15, 2017, for $4,441.
WildEarth Guardians v. Kraayenbrink, et al., No. 4:14-cv-00488-REB (D.
Id.): Idaho Predator. Payment Date: April 19, 2017, for $7,641.
Montana Backcountry Hunters and Anglers, et al. v. U.S. Forest Service,
No. 9:16-cv-00110-DLC (D. Mt.): Divide Elk Security. Payment Date: May
24, 2017, for $25,244.
Defenders of Wildlife v. Zinke, Kurth, Idaho Farm Bureau Federation,
Wyoming Farm Bureau, Montana Farm Bureau Federation, Washington Farm
Bureau, Idaho State Snowmobile Association, Colorado Snowmobile
Association, Colorado Off-Highway Vehicle Coalition, American Petroleum
Institute, Montana Petroleum Association, Western Energy Alliance, No.
9:14-cv-00246-DLC (D. Mt.): Wolverine Listing. Payment Date: June 16,
2017, for $200,879.
WildEarth Guardians, Conservation Northwest, Oregon Wild, Cascadia
Wildlands, and Wilderness Workshop v. U.S. Department of Interior,
Zinke, Kurth, and U.S. Fish and Wildlife Service, No. 9:14-cv-00270-DLC
(D. Mt.): Lynx Critical Habitat. Payment Date: June 16, 2017, for
$94,216.
Dine CARE v. U.S. Office of Surface Mining Reclamation and Enforcement,
No. 12-cv-1275-JLK (D. Co.): Navajo Mine. Payment Date: August 25,
2017, for $220,000.
Sierra Club Inc. v. BNSF Railway Co, No. 2:13-cv-00967-JCC (D.W. Wa.):
Washington Coal Train. Payment Date: September 22, 2017, for $227,266.
WildEarth Guardians v. U.S. Office of Surface Mining Reclamation and
Enforcement, No. 1:17-cv-01151-JEB (D. D.C.): SO3349 FOIA OSM. Payment
Date: November 1, 2017, for $4,500.
Friends of the Wild Swan, et al., v. Vermillion v. Montana Trappers
Association, et al., No. 9:13-cv-00066-DLC (D. Mt.): Lynx Trapping.
Payment Date: February 15, 2018, for $144,031.
Cascadia Wildlands and Oregon Wild v. Carlton and American Forest
Resource Council, No. 6:16-cv-01095-JR (D. Or.): Loafer Timber. Payment
Date: March 8, 2018, for $76,034.
WildEarth Guardians and Kootenai Environmental Alliance v. Animal and
Plant Health Inspection Service, No. 1:17-cv-1153-KBJ; CDV 12-1075 (D.
D.C.): Wildlife Services FOIA. Payment Date: April 12, 2018, for
$10,000.
WildEarth Guardians v. U.S. Office of Surface Mining Reclamation and
Enforcement, No. 1:17-cv-00758-APM (D. D.C.): Spring Creek FOIA.
Payment Date: April 12, 2018, for $5,650.
Montana Environmental Information Center v. U.S. Office of Surface
Mining reclamation and Enforcement, No. 9:15-cv-00106-DWM (D. Mt.):
Signal Peak NEPA. Payment Date: April 12, 2018, for $121,500.
Sierra Club, et al., v. Zinke, No. 3:17-cv-3804-EDL (D. Ca.): BLM
Methane 705 Stay. Payment Date: October 31, 2018, for $37,788.
WildEarth Guardians v. U.S. Bureau of Land Management, No. 1:17-cv-
01149 (D. D.C.): SO3349 FOIA BLM. Payment Date: December 10, 2018, for
$9,000.
WildEarth Guardians v U.S. Bureau of Land Management, No. 1:18-cv-0551-
TNM (D. D.C.): FOIA. Payment Date: May 31, 2019, for $3,299.
Dine Citizens v. USEPA, No. 18-71481 (9th Cir.): Four Corners Power
Plant NPDES. Payment Date: June 28, 2019, for $19,806.
WildEarth Guardians v. U.S. Bureau of Land Management, No. 1:18-cv-
00121-RCL (D. D.C.): FOIA. Payment Date: June 30, 2019, for $1,369.
Western Organization of Resource Councils, et al. v. U.S. Bureau of
Land Management, et al. and Cloud Peak Energy, et al., No. 4:16-CV-
00021-BMM (D. Mt.): Powder River Basin RMP. Payment Date: June 30,
2019, for $230,227.
San Juan Citizens Alliance, et al. v. U.S. Bureau of Land Management,
No. 1:16-cv-00376-JOB-JHR (D. NM.): Santa Fe National Forest lease
sale. Payment Date: July 8, 2019, for $62,248.
Sierra Club, et al., v. Bernhardt, No. 3:17-cv-7186-WHO (D. Ca.): BLM
Methane Suspension Rules. Payment Date: July 24, 2019, for $73,780.
WildEarth Guardians v. Scruggs and Montana Trappers Association, et
al., No. 9:16-cv-00065-DWM (D. Mt.): Lynx CITES. Payment Date:
September 24, 2019, for $144,477.
Center for Biological Diversity, et al. v. Zinke, et al. & Safari Club
International, et al. v. Zinke, et al., No. 4:15-cv-00019-JGZ (D. Az.):
Mexican Wolf. Payment Date: December 18, 2019, for $193,799.
WildEarth Guardians v. U.S. Bureau of Land Management, No. 1:18-cv-
0890-APM (D. D.C): FOIA. Payment Date: December 30, 2019, for $737.
Willamette Riverkeeper and Conservation Angler v. U.S. Army Corps of
Engineers and Aaron Dorf, No. 6:17-cv-00801-MC (D. Or.): Santiam
Hatchery. Payment Date: December 31, 2019, for $130,000.
WildEarth Guardians v. U.S. Bureau of Land Management, No. 1:17-cv-
01849 (D. D.C.): BLM online oil and gas leasing FOIA. Payment Date:
December 31, 2019, for $13,000.
WildEarth Guardians, Oregon Wild, The Sierra Club, and Great Old Broads
for Wilderness v. Jeffries, No. 2:17-cv-1004-SU (D. Or.): Ochoco Summit
Trail. Payment Date: December 31, 2019, for $145,000.
Dine CARE v. Bernhardt, No. 1:15-cv-00209-JB-LF (D. NM.): Mancos APD.
Payment Date: February 19, 2020, for $107,854.
Wilderness Workshop, Western Colorado Congress, Natural Resources
Defense Council, Sierra Club v. U.S. Bureau of Land Management, et al.,
No. 1:16-cv-01822 (D. Co.): Colorado River RMP. Payment Date: June 5,
2020, for $118,421.
Montana Environmental Information Center v. U.S. Office of Surface
Mining reclamation and Enforcement, No. 19-2977 (D. D.C.): OSM Rosebud
FOIA. Payment Date: July 31, 2020, for $2,500.
Montana Environmental Information Center and Sierra Club v. U.S. Office
of Surface Mining, Reclamation, and Enforcement, Civ. No. 19-3019 (D.
D.C.): OSM Bull Mountains FOIA. Payment Date: September 23, 2020, for
$2,064.
WildEarth Guardians v. Bernhardt, No. 4:19-cv-00441-CKJ (D. Az.):
Sonoran Desert Tortoise ESA. Payment Date: December 30, 2020, for
$23,524.
Citizens for a Healthy Community; High Country Conservation Advocates;
Center for Biological Diversity; WildEarth Guardians; and Wilderness
Workshop; v. U.S. Bureau of Land Management, David Bernhardt, Dana M.
Wilson, U.S. Forest Service, Sonny Perdue, Chad Steward, and SG
Interests I, LTD.; and SG Interests VII, LTD., No. 1:17-cv-02519 (D.
Co.): Bull Mountain MPD. Payment Date: December 31, 2020, for $61,248.
WildEarth Guardians, et al. v. U.S. Bureau of Land Management, et al.,
No. 4:18-cv-0073-BMM (D. Mt.): Montana leasing. Payment Date: December
31, 2020, for $90,440.
Helena Hunters and Anglers Association, et al. and Alliance for the
Wild Rockies, et al., v. Leanne Marten, et al., and Stae of Montana and
Montana Bicycle Guild, Inc., No. 19-cv-0047-DLC (D. Mt.): Challenge to
Forest Service's decision to use of areas inside two Inventoried
Roadless Areas in the Helena National Forest, as part of the Tenmile-
South Helena project. Payment Date: April 30, 2021, for $199,000.
Wilderness Workshop, Center for Biological Diversity, Living Rivers
Colorado Riverkeeper, Sierra Club v. U.S. Bureau of Land Management,
No. 1:18-cv-00987 (D. Co.): Challenge to Piceance lease sales. Payment
Date: December 11, 2021, for $20,670.
WildEarth Guardians v. U.S. Bureau of Land Management, No. 1:18-cv-
00233 (D. D.C.): FOIA. Payment Date: December 31, 2021, for $3,697.
WildEarth Guardians v. U.S. Bureau of Land Management, Civ. No. 18-
1020-CRC (D. D.C.): FOIA. Payment Date: February 4, 2022, for $2,950.
Crow Indian Tribe v. U.S.A., No. 17-cv-89 (D. Mt.): Restoring
endangered species protections for the Greater Yellowstone Ecosystem
population of grizzly bears. Payment Date: February 24, 2022, for
$432,426.
Friends of the Wild Swan, et al., v. Haaland, No. 9:20-cv-00173-DWM (D.
Mt.): Challenge to Fed decision not to prepare lynx recovery plan,
following earlier order from the court. Payment Date: April 20, 2022,
for $101,012.
American Whitewater v. Electron Hydro, LLC, No. 2:16-cv-00047-JCC (D.
Wa.): Challenge to hydroelectric project on Puyallup River in
Washington that takes ESA-listed Chinook and steelhead and bull trout.
Payment Date: May 18, 2022, for $223,903.
The National Trust for Historic Preservation v. Haaland, No. 2:16-cv-
05008-PHX-MHB (D. Az.): Challenge to BLM decision to allow target
shooting in Sonoran Desert National Monument. Payment Date: July 31,
2022, for $110,000.
Friends of the Clearwater v. Probert, No. 3:21-cv-00056-BLW (D. Id.):
Griffin Half Moon timber sale. Payment Date: July 31, 2022, for
$46,000.
WildEarth Guardians and Montana Environmental Information Center v.
Haaland and Spring Creek Coal, LLC, No. CV 17-80-BLG-SPW-TJC (D. Mt.):
Spring Creek Coal NEPA. Payment Date: September 8, 2022, for $103,500.
WildEarth Guardians v U.S. Dept of Interior et al., Civ. No. 19-2974
(D. D.C.): Carlsbad Resource Management Plan FOIA. Payment Date:
September 9, 2022, for $19,000.
Cascadia Wildlands, Klamath-Siskiyou Wildlands Center, Oregon Wild,
Soda Mountain Wilderness Council, and Willamette Riverkeeper v. US
Bureau of Land Management and B&G Logging and Construction, LLC, No.
6:21-cv-01313-AA (D. Or.): BLM salvage CX rulemaking. Payment Date:
October 15, 2022, for $30,000.
Citizens for a Healthy Community v. U.S. Bureau of Land Management,
Civ. No. 1:20-cv-2484 (D. Co.): Uncompahgre Resource Management Plan.
Payment Date: December 20, 2022, for $75,607.
WildEarth Guardians v. Williams, No. 9:20-cv-00097-DLC (D. Mt.):
Challenge to Fed decision not to list wolverine. Payment Date: December
21, 2022, for $61,499.
Dine CARE v. Bureau of Land Mgmt., No. 1:20-CV-00673-KG-JHR (D. NM.):
Challenge against BLM oil and gas leasing decisions under NEPA. Payment
Date: March 9, 2023, for $142,043.
WildEarth Guardians v. Haaland, Nos. 9:20-cv-00181-DWM; 9:20-cv-00183-
DWM (D. Mt.): Challenge to Fed decision not to list wolverine. Payment
Date: March 20, 2023, for $147,868.
Question 2. Please list any current or pending litigation against
the Federal Government to which you or your organization is a party
filed between the period starting with March 23, 2023 and ending on the
date in which you submit a response to this question. Please disclose
as applicable case name, docket number, the court, and subject matter
of the litigation.
Answer. None.
______
Mr. Tiffany. Thank you, Ms. Brown. I would like to
introduce Mr. Jonathan Wood, who is the Vice President of Law
and Policy for the Property and Environment Research Center,
PERC. Mr. Wood is an experienced attorney specializing in
environmental and constitutional law. PERC is an independent
non-profit dedicated to the advancing of conservation through
markets, incentives, property rights, and partnerships.
Mr. Wood, you are now recognized for 5 minutes.
STATEMENT OF JONATHAN WOOD, VICE PRESIDENT OF LAW AND POLICY,
THE PROPERTY AND ENVIRONMENTAL RESEARCH CENTER, BOZEMAN,
MONTANA
Mr. Wood. Thank you and good afternoon, Chairman Tiffany,
and thank you to Ranking Member Kamlager-Dove and the other
members of the Committee for the invitation to participate in
this discussion on needed reforms to restore our nation's
forests, to protect wildlife habitat, and to tackle the
wildfire crisis.
The one thing left out of that description of PERC is that
we are based in Bozeman, Montana, and I want to mention that
and stress that in the intro because Montana really has been
ground zero for Cottonwood and litigation against forest
restoration generally.
We did a study a couple of years ago looking at where
litigation is filed in challenging forest restoration projects.
And the most popular district for these cases to be filed is in
the district of Montana. In fact, there are only two districts
alone, the Eastern District of California and in Montana, that
are responsible for more than half of the cases challenging
forest restoration.
One of the targets of the Cottonwood case was the Bozeman
Municipal Watershed Project on the outskirts of town. The
project is designed to protect from wildfire the main source of
Bozeman's drinking water, and it would also protect really
valued recreational areas where I and my neighbors take our
kids to learn how to hike, to appreciate nature, and to enjoy
the outdoors.
In Cottonwood, the 9th Circuit held, as you have heard from
the other witnesses--and, I will note, contrary to the ESA's
text, Supreme Court precedent, and 10th Circuit precedent--that
the Forest Service must perpetually re-consult with the Fish
and Wildlife Service on its existing forest plans every time a
new species is listed, critical habitat is designated, or its
ambiguous term--new information is discovered.
The case contributed substantially to a 15-year delay in
the Bozeman Municipal Watershed Project. It unnecessarily kept
my town at risk that a catastrophic wildfire would mar
viewshed, scorch wildlife habitat and recreation areas, and
leave the city with a mere 3 days of drinking water. That delay
produced no benefit for any listed species. Today, the project
is finally being implemented, precisely the way it had been
proposed more than a decade earlier.
Congress quickly responded to Cottonwood by enacting a
temporary fix, saving other communities from this fate. Today,
however, that fix expires. Unless Congress acts promptly to fix
Cottonwood, as Congressman Rosendale's FIR Act proposes, the
Forest Service will immediately have to re-consult over dozens
of national forest plans. It estimates that work will take 5 to
10 years and cost several million dollars, time and money the
agency simply doesn't have during today's wildfire crisis.
The temporary fix's expiration could not happen at a worse
time. The Forest Service faces an 80-million-acre forest
restoration backlog, affecting 40 percent of the land managed
by the agency. This backlog leaves our forests with excess
fuels, more vulnerable to insects and disease, and less
resilient to climate change and drought. The backlog fuels
catastrophic wildfires that are more likely to threaten old-
growth trees, wipe out wildlife habitat, and cause erosion that
degrades watersheds and fisheries.
Even mighty giant sequoias that have withstood life in
California's rugged Sierra Nevada mountains for thousands of
years are at risk. The National Park Service estimates as many
as 1 in 5 of the world's remaining sequoias have been killed by
wildfires since 2020.
Wildfire emissions are also a major climate concern, with a
single year's fire able to wipe out decades of hard-won
emissions reductions. The Forest Service has not been able to
implement forest restoration projects at the scale needed to
shrink this backlog. Recently, it has treated an average of
about 4 million acres per year. And the agency's non-intuitive
way of tracking and reporting that progress can exaggerate
their progress in closing this restoration backlog.
Chairman Tiffany's ACRES Act would fix this problem by
requiring the agency to report its forest restoration efforts
in a way that would be more accessible to the public, and
easier to track accountability.
The Biden administration has set ambitious goals to
increase forest restoration work over the next decade. Meeting
these lofty but critical targets will require greater
efficiency in the often years-long process of developing,
approving, and implementing forest restoration projects.
Cottonwood would add new obstacles to forest restoration. It
will also slow or stop projects essential to protecting
wildlife habitat, including for endangered and threatened
species.
On the other hand, the re-consultation required by
Cottonwood would not help recover species. As the 10th Circuit
explained to Forest Guardians, forest plans are not self-
implementing. They are, the court explained, ``more akin to
roadmaps, creating a vision'' for future forest management.
These plans can only affect listed species to individual
projects, and those already go through consultation and re-
consultation to address impacts to native-listed species,
designated critical habitat, or discovered information.
And I will close by reminding the panel of the Obama
administration's assessment of Cottonwood, a case which it
fought in the 9th Circuit and tried to have a return in the
Supreme Court. That assessment was correct, and it was that
Cottonwood threatens to ``cripple the Forest Service and BLM's
land management functions,'' and distract from on-the-ground
species recovery efforts.
Thank you again for the opportunity to speak to you, and I
look forward to your questions.
[The prepared statement of Mr. Wood follows:]
Prepared Statement of Jonathan Wood, Vice President of Law and Policy,
Property and Environment Research Center (PERC)
on H.R. 200 and H.R. 1567
Main Points
Closing the Forest Service's 80-million-acre forest-
restoration backlog is essential to conserve forests,
maintain wildlife habitat, and tackle the wildfire crisis.
The Forest Service cannot shrink the backlog if it remains
bogged down by bureaucracy and litigation.
In Cottonwood, the Ninth Circuit invented an unnecessary
bureaucratic obstacle to forest restoration and encouraged
litigation to upend this work, while producing no benefits
for listed species.
Numerous conservation organizations and three presidential
administrations have supported fixing Cottonwood to
streamline needed forest restoration.
Introduction
Chairman Tiffany, Ranking Member Neguse, and members of the
committee, thank you for the invitation to participate in this
important discussion on forest conservation and, especially, how the
Ninth Circuit's controversial Cottonwood decision \1\ interferes with
the Forest Service's ability to restore forests, protect wildlife
habitat, and tackle the wildfire crisis.
---------------------------------------------------------------------------
\1\ Cottonwood Environmental Law Center v. Forest Service, 789 F.3d
1075 (9th Cir. 2015).
---------------------------------------------------------------------------
My name is Jonathan Wood and I'm the vice president of law and
policy at the Property and Environment Research Center. PERC is the
national leader in market solutions for conservation, with over 40
years of research and a network of respected scholars and
practitioners. Through research, law and policy, and innovative applied
conservation programs, PERC explores how aligning incentives for
environmental stewardship produces sustainable outcomes for land,
water, and wildlife. Forest health has been a primary focus of PERC's
research and policy efforts including major reports on policies that
discourage collaborative forest restoration and prescribed burning.\2\
Founded in 1980, PERC is nonprofit, nonpartisan, and proudly based in
Bozeman, Montana.
---------------------------------------------------------------------------
\2\ See Holly Fretwell & Jonathan Wood, Fix America's Forests:
Reforms to Restore National Forests and Tackle the Wildfire Crisis,
PERC Public Lands Report (2021); Jonathan Wood & Morgan Varner, Burn
Back Better: How Western States Can Encourage Prescribed Fire on
Private Lands, PERC Policy Report (2023).
---------------------------------------------------------------------------
Bozeman has been ground-zero for Cottonwood and for litigation
challenging forest restoration generally. In fact, one of the targets
of the Cottonwood case was the Bozeman Municipal Watershed Project in
PERC's backyard.\3\ The project area is the main source of Bozeman's
water. It's also where I (like countless other Bozeman residents) teach
my kids to hike, appreciate nature, and enjoy the outdoors. The
Cottonwood case, brought by self-described ``radical
environmentalists,'' \4\ contributed substantially to a 15-year-delay
in the project and kept Bozeman exposed to the risk that a catastrophic
wildfire would mar our viewshed, scorch wildlife habitat and cherished
recreation areas, and leave the city with a mere 3 days of drinking
water.\5\
---------------------------------------------------------------------------
\3\ See Cottonwood, 789 F.3d at 1080. See also Forest Service,
Bozeman Municipal Watershed Project Record of Decision (2010).
\4\ See John Meyer, Sen. Steve Daines ought to take a hike in our
forests, Bozeman Daily Chronicle (June 21, 2022).
\5\ See BMWP Record of Decision, supra n. 3 at 6.
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Our national forests face an 80-million-acre backlog in needed
restoration--a backlog that leaves our forests with excess fuels, more
vulnerable to insects and disease, and less resilient to climate change
and drought.\6\ The Forest Service has struggled to treat more than a
few millions of those acres per year.\7\ And as reflected in Chairman
Tiffany's ACRES Act (H.R. 1567), the Forest Service's method of
tracking and reporting these acres has historically overstated the
agency's progress toward clearing the backlog.\8\
---------------------------------------------------------------------------
\6\ See Forest Service, Forest Products Modernization (last visited
Mar. 17, 2023). See also Fix America's Forests, supra n. 2 at 4-16.
\7\ See Forest Service, USDA Forest Service Celebrates Historic
Investments in 2022 (Feb. 6, 2023) (reporting that the Service treated
3.2 million acres in 2022); Fix America's Forests, supra n. 2 at 4.
\8\ See Accurately Counting Risk Elimination Solutions (ACRES) Act,
H.R. 1567. See also GAO, Wildland Fire Management: Additional Actions
Required to Better Identify and Prioritize Lands Needing Fuels
Reduction (2003); GAO, Western National Forests: A Cohesive Strategy is
Needed to Address Catastrophic Wildfire Threats (1999).
---------------------------------------------------------------------------
To tackle the wildfire crisis fueled by this backlog, the Biden
administration has developed an ambitious strategy to significantly
increase its forest restoration work over the next decade, including
treating an additional 20 million acres of national forest above the
business-as-usual rate.\9\ Meeting that lofty but critical target will
require greater efficiency in the years-long process of developing,
approving, and implementing forest restoration projects.\10\
---------------------------------------------------------------------------
\9\ See Forest Service, Confronting the Wildfire Crisis: A Strategy
for Protecting Communities and Improving Resilience in America's
Forests (2022).
\10\ See Eric Edwards & Sara Sutherland, Does Environmental Review
Worsen the Wildfire Crisis?, PERC Policy Brief (2022). See also
Confronting the Wildfire Crisis, supra n. 9 at 30 (predicting that
existing ``shovel ready'' projects could be completed in years 1 and 2
of the plan); Forest Service, National Prescribed Fire Program Review
App. A 21 (2022) (identifying the need to ``streamline required
environmental analysis and consultations'').
---------------------------------------------------------------------------
Allowing the temporary Cottonwood fix to expire and the Ninth
Circuit's decision to go into full effect would be a significant and
unnecessary setback for forest conservation.\11\ That's why the Obama,
Trump, and Biden administrations have expressed concern about
Cottonwood,\12\ why PERC and other conservation groups have supported a
fix,\13\ and why legislative proposals to reverse it, like
Representative Rosendale's FIR Act (H.R. 200), have consistently
received bipartisan support.\14\
---------------------------------------------------------------------------
\11\ See Congressional Research Service, Legal and Practical
Implications of the Ninth Circuit's Cottonwood Environmental Law Center
v. U.S. Forest Service Decision Under the Endangered Species Act (2022)
(discussing the temporary Cottonwood fix Congress enacted in 2018).
\12\ See Pet. for Cert., U.S. Forest Serv. v. Cottonwood, No. 15-
1387 (filed June 10, 2016); Fish & Wildlife Serv., Proposed Rule to
Amend Consultation Requirements, 86 Fed. Reg. 2373 (January, 12, 2021);
Deputy Chief Christopher French, Forest Service, Response to Questions
for the Record, Senate Comm. on Energy and Natural Res. Hearing on S.
2561 (October 21, 2021) (hereinafter Deputy Chief French QFR). For ease
of access, this document is appended to this testimony.
\13\ See Letter from PERC and Other Conservation Organizations to
Senators Schumer, Carper, Manchin, Capito, and Barasso (Sept. 20,
2022); News Release, Daines, Tester, Simpson, Peterson Introduce
Legislation to Reverse Disastrous Court Ruling (Mar. 9, 2017) (noting
support from the National Wildlife Federation, Trout Unlimited, Boone
and Crockett Club, Congressional Sportsmen's Foundation, Wildlife
Management Institute, and other conservation groups).
\14\ See Letter from Senators Daines, Risch, Tester, Crapo, and
King to the President (Jan. 31, 2023) (urging the President to support
a permanent Cottonwood fix); Congressional Sportsmen's Found., Two CSF
Conservation Priorities Pass Senate Committee with Strong Bipartisan
Support (July 25, 2022).
---------------------------------------------------------------------------
The Restoration Backlog Fueling the Wildfire Crisis
According to the Forest Service, forty percent of the acres in the
national forest system need restoration to address excess fuels,
invasive species, disease and insect infestations, and other
conservation challenges.\15\ When the Department of the Interior's 54-
million-acre restoration backlog is added in,\16\ the total area
needing urgent help is larger than the state of California. The
wildfire crisis is the most visible symptom of this problem but it is
not the only one. Due to the backlog, many western forests are stocked
full with overly dense, unhealthy, and dying stands that provide lower
quality habitat, are more vulnerable to insects and disease, and are
less resilient to climate change and drought.\17\
---------------------------------------------------------------------------
\15\ See Fix America's Forests, supra n. 2 at 4.
\16\ GAO, Wildland Fire: Federal Agencies' Efforts to Reduce
Wildland Fuels and Lower Risk to Communities and Ecosystems (2019).
\17\ See Fix America's Forests n. 2 at 8-13.
---------------------------------------------------------------------------
As with any complex phenomenon, no single factor fully explains
declining forest health or thewildfire crisis. A changing climate has
increased the risk of drought and extended the west's ``wildfire
season.'' \18\ A massive jump in the number of people living near or
recreating in forests has increased opportunities for human-caused
ignitions.\19\ But the largest factor, according to a study by Forest
Service scientists, is excessive forest density and the buildup of
fuels due to decades of failed fire suppression policies.\20\
---------------------------------------------------------------------------
\18\ See Burn Back Better, supra n. 2 at 4.
\19\ See id.
\20\ See Sean A. Parks et al., High-Severity Fire: Evaluating Its
Key Drivers and Mapping Its Probability Across Western US Forests,
Environmental Research Letters (2018).
---------------------------------------------------------------------------
Fire is nothing new to western forests, which are adapted to flames
due to climate, terrain, and Indigenous tribes' use of controlled fire
for millennia.\21\ However, recent catastrophic wildfires are far more
destructive than historical fire regimes. They are more likely to
threaten old-growth trees, wipe out habitat for wildlife, and cause
erosion that degrades watersheds and fish habitat.\22\ Even mighty
giant sequoias--some of which have withstood life in California's
rugged Sierra Nevada mountains for thousands of years--are at risk. The
National Park Service estimates that 10-20% of the world's remaining
members of this species have been killed by wildfires since 2020.\23\
Wildfire emissions are also a major climate concern. California's
record wildfire year in 2020, for example, released twice the amount of
emissions that the state cut between 2003 and 2019.\24\
---------------------------------------------------------------------------
\21\ See Burn Back Better, supra n. 2 at 4.
\22\ See Fix America's Forests, supra n. 2 at 8-10.
\23\ See Dr. Kristen Shive, et al., 2021 Fire Season Impacts to
Giant Sequoias (last visited Mar. 19, 2023).
\24\ Michael Jerrett, Amir S. Jina, Miriam E. Marlier, Up in smoke:
California's greenhouse gas reductions could be wiped out by 2020
wildfires, 300 Env'tl Pollution 119888 (2022).
---------------------------------------------------------------------------
Since 2005, the United States has three times eclipsed 10 million
acres burned by wildfires in a year--an unfathomable total just a few
decades ago--with the vast majority of that acreage concentrated in the
West.\25\ And due to growing populations near forests, modern fires
also threaten communities and property in ways not seen before.\26\
Nearly 100,000 structures have burned in wildfires since 2005, with
two-thirds of that destruction occurring since 2017.\27\ California's
Camp Fire in 2018 was the deadliest and most destructive in that
state's history, killing 85 people and destroying most of the town of
Paradise, CA in less than 24 hours.\28\
---------------------------------------------------------------------------
\25\ See Fix America's Forests, supra n. 2 at 10-11.
\26\ See Burn Back Better, supra n. 2 at 4.
\27\ Headwaters Economics, Wildfires Destroy Thousands of
Structures Each Year (2022).
\28\ National Institute of Standards & Technology, New Timeline of
Deadliest California Wildfire Could Guide Lifesaving Research and
Action (Feb. 8, 2021).
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Forest restoration efforts, including mechanical thinning and
prescribed fire, are urgently needed to reduce wildfire damage and
promote forest resilience. The effectiveness of these tools was
demonstrated in 2021 during Oregon's Bootleg Fire, which ultimately
burned more than 400,000 acres.\29\ Firefighters reported that where
both treatments had been applied, fire intensity was reduced, the
crowns of trees were left intact, and the blaze became a more
manageable ground fire. Reports also indicated that an area where
scheduled prescribed burns had been delayed suffered more damage than
areas where treatments had been completed.\30\
---------------------------------------------------------------------------
\29\ See Burn Back Better, supra n. 2 at 5.
\30\ See Sara Sutherland & Eric Edwards, How Environmental Red Tape
Inflames Wildfire Risk, PERC Reports (2022).
---------------------------------------------------------------------------
The Forest Service has simply not been able to keep up with forest
restoration needs. From 2009 to 2018, it averaged restoration
treatments on less than 4 million acres per year.\31\ But this does not
mean that the Service would catch up in 20 years, as dividing an 80-
million-acre backlog by 4 million acres per year would suggest. The
Forest Service tracks acres treated in a non-intuitive way that
precludes such easy comparison. If a Forest Service projects calls for
treating 1,000 acres with commercial thinning, non-commercial thinning,
piling and burning, and broadcast burning over 4 years, it may count
this project as 4,000 acres treated: 1,000 commercially thinned in year
1; 1,000 non-commercially thinned in year 2; 1,000 pile-burned in year
3; and 1,000 prescribed burned in year 4. For more than two decades,
the GAO has criticized the Forest Service's approach as creating
perverse incentives and generating misleading data.\32\ Requiring
accurate reporting on treated acres, Chairman Tiffany's proposed ACRES
Act (H.R. 1567) would help address this problem and better ensure
responsible management.
---------------------------------------------------------------------------
\31\ See Federal Agencies' Efforts to Reduce Wildlife Fuels, supra
n. 16.
\32\ See Wildland Fire Management, supra n. 8; Western National
Forests, supra n. 8.
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The Bozeman Municipal Watershed Project and the Cottonwood Decision
In 2004, the Custer-Gallatin National Forest and the city of
Bozeman, Montana determined that wildfire risks threatened 80% of the
city's water supply, along with valuable wildlife habitat, recreational
areas, and homes and infrastructure. The Forest Service and the city
began work on a plan to fix the problem by restoring a forested area on
the outskirts of town.\33\
---------------------------------------------------------------------------
\33\ See BMWP Record of Decision, supra n. 3.
---------------------------------------------------------------------------
Carrying that plan out, however, would prove much more difficult.
It took three years to prepare a draft NEPA analysis.\34\ While the
Forest Service was working on finalizing it, a federal court reversed
the delisting of the local grizzly bear population, triggering
additional Endangered Species Act analysis and delaying a final
decision.\35\ When that analysis was completed, several organizations
objected to it. The Forest Service resolved those objections in 2011
and formally approved the project, 7 years after the process began. At
that point several especially litigious organizations filed lawsuits
challenging the project.\36\
---------------------------------------------------------------------------
\34\ See id.
\35\ See id.
\36\ See Salix v. Forest Service, 944 F. Supp. 2d 984 (D. Mont.
2013); Alliance for the Wild Rockies v. Krueger, 950 F. Supp. 2d 1196
(D. Mont. 2013). Between 2007 and 2017, more litigation challenging
forest restoration projects was filed in the District of Montana than
anywhere else in the country. See Fix America's Forests, supra n. X at
38 (reporting that Montana had 50% more of this litigation than the
second-place district, the Eastern District of California). A handful
of especially litigious groups are responsible for this concentration.
---------------------------------------------------------------------------
In Cottonwood, an environmental litigation group challenged the
Bozeman Municipal Watershed Project and two other projects under the
Endangered Species Act. In 2009, while the projects were being
developed, the Fish and Wildlife Service designated nearly 10,000
square miles within the Greater Yellowstone Ecosystem as critical
habitat for the Canada lynx.\37\ In analyzing the project, the Forest
Service thoroughly considered this development and concluded that the
project would have no impact on the critical habitat.\38\ Nonetheless,
the plaintiffs demanded the project be stopped because the Forest
Service had not re-initiated consultation with the Fish and Wildlife
Service over a forest plan that had been completed years before the
critical habitat designation was made.\39\ A federal court issued an
injunction blocking the project while the litigation played out.\40\
---------------------------------------------------------------------------
\37\ See Susan Gallagher, Protected land for lynx expands, Seattle
Times (Feb. 25, 2009).
\38\ See BMWP Record of Decision, supra n. 3 at 26.
\39\ See Salix, 944 F. Supp. 2d 984.
\40\ Id.; Alliance for the Wild Rockies, 950 F. Supp. 2d 1196.
---------------------------------------------------------------------------
Section 7 of the Endangered Species Act requires federal agencies
to consult with the Fish and Wildlife Service (or, for aquatic species,
the National Marine Fisheries Service) whenever any ``action'' it
authorizes, funds, or carries out is likely to jeopardize a listed
species or adversely modify its critical habitat.\41\ The statute
suggests consultation is a one-time event that must be completed within
90 or 180 days of when the federal agency requests the Fish and
Wildlife Service's opinion.\42\ However, the Fish and Wildlife Service
has, by regulation, defined it as a continuing obligation. Under that
regulation, the agency must re-consult for at least some actions
whenever a new species is listed, new critical habitat is designated,
or ``new information'' is discovered.\43\ Thus, agencies routinely
reconsult over ongoing projects, including forest restoration projects.
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\41\ 16 U.S.C. Sec. 1536(a).
\42\ Id. Sec. 1536(a)(3) (referring to ``prospective agency
action''); id. Sec. 1536(b) (setting deadlines for completing
consultation).
\43\ 50 C.F.R Sec. 402.16.
---------------------------------------------------------------------------
The question in Cottonwood, however, was whether the Forest Service
must also reinitiate consultation over the forest plan. These plans
provide a general road map for future management decisions but do not
authorize any on-the-ground activity.\44\ That must be done through a
subsequent action, like the Bozeman Municipal Watershed Project, that
goes through its own environmental analysis and ESA consultation. Prior
to Cottonwood, the apparent answer to this question was ``no.'' The
Supreme Court had, interpreting essentially identical language in the
National Environmental Policy Act, held that land management plans like
this are not continuing actions and, therefore, do not require
supplemental analysis.\45\ The Tenth Circuit had considered the precise
question in Cottonwood and held that once a federal land management
plan is issued the action is complete and Section 7's consultation
requirement no longer applies.\46\
---------------------------------------------------------------------------
\44\ Forest Guardians v. Forsgren, 478 F.3d 1149 (10th Cir. 2007).
\45\ Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 73
(2004).
\46\ Forest Guardians, 478 F.3d 1149.
---------------------------------------------------------------------------
The Ninth Circuit went the other way, holding that federal agencies
must reinitiate consultation at the forest plan level whenever there is
a new species listed, critical habitat designated, or any other new
information.\47\ Essentially reading the word ``action'' out of the
statute, the court held that so long as an agency could take some
future hypothetical action affecting the species, like amending an
existing forest plan, then it must perpetually consult over past,
completed actions--even those that have no on-the-ground impact on the
species.\48\
---------------------------------------------------------------------------
\47\ Cottonwood Environmental Law Center, 789 F.3d at 1084-88.
\48\ Id.
---------------------------------------------------------------------------
The Obama administration urged the Supreme Court to reverse this
outlier decision, explaining that it ``has the potential to cripple the
Forest Service and BLM's land-management functions'' and to distract
the Fish and Wildlife Service from activities that could actually
benefit listed species.\49\ Unfortunately, the Supreme Court declined
to review the Ninth Circuit's aberrant decision.\50\
---------------------------------------------------------------------------
\49\ See Pet. for Cert., supra n. 12.
\50\ Forest Serv. v. Cottonwood Env't L. Ctr., 137 S. Ct. 293
(2016).
---------------------------------------------------------------------------
Soon after the Supreme Court passed on the case, the Forest Service
requested consultation with the Fish and Wildlife Service. That process
would take nearly a year, with several rounds of back-and-forth between
the two agencies.\51\ According to the Forest Service, this single
reconsultation cost the agency more than $250,000.\52\ And, ultimately,
it concluded that the forest plan was not likely to destroy or
adversely modify lynx critical habitat and, therefore, required no
change.\53\
---------------------------------------------------------------------------
\51\ See Fish and Wildlife Service, Biological Opinion on the
Effects of the Northern Rockies Lynx Management Direction on Designated
Critical Habitat for Canada Lynx (2017).
\52\ Deputy Chief French QFR, supra n. 12 at 1-2.
\53\ See Biological Opinion on the Effects of the Northern Rockies
Lynx Management Direction, supra n. 51 at 31.
---------------------------------------------------------------------------
In 2020, 16 years after the project was initiated, the federal
court lifted the injunction and allowed the project to finally proceed.
Notably, the extended delays and mountain of additional paperwork did
not result in any material change to the project or benefit to any
species. The project is being implemented today in exactly the way it
was proposed more than a decade ago. But the attorneys who brought the
case made $300,000 in attorney's fees paid by the government.\54\
---------------------------------------------------------------------------
\54\ See Stipulated Settlement Agreement, Cottonwood Envtl. Law
Ctr. v. Forest Service, 12-cv-45 (Apr. 27, 2017).
---------------------------------------------------------------------------
And, of course, the litigation group behind Cottonwood promptly
filed a new lawsuit challenging the project, arguing that all of the
analysis should be redone yet again because a new scientific study had
been published.\55\ That case, fortunately, didn't go very far and the
project is currently being implemented.\56\
---------------------------------------------------------------------------
\55\ See Helena Dore, Federal judge tosses lawsuit against three
southwest Montana timber projects, Bozeman Daily Chron. (Dec. 19,
2020).
\56\ See id.
---------------------------------------------------------------------------
The Need for a Cottonwood Fix
Soon after the Supreme Court declined to review Cottonwood,
Congress responded by passing a temporary fix. That fix provided that
neither the Forest Service nor the Bureau of Land Management needed to
reinitiate consultation over completed land management plans, with
certain qualifications, whenever a new species is listed or critical
habitat is designated.\57\ That decision staved off, even if only
temporarily, Cottonwood's full negative effects.
---------------------------------------------------------------------------
\57\ P.L. 115-141, Sec. 208, 132 Stat. 1065 (2018).
---------------------------------------------------------------------------
Even so, the exceptions to the temporary fix have given a preview
of what's to come without a permanent fix. According to the Forest
Service, 27 lawsuits had been filed and another 49 had been threatened
as of October 2021.\58\ Those cases resulted in five injunctions.\59\
Today, the temporary fix expires and, without further action from
Congress, we're about to see the full effect of the Ninth Circuit's
decision.
---------------------------------------------------------------------------
\58\ Deputy Chief French QFR, supra n. 12 at 2.
\59\ See id.
---------------------------------------------------------------------------
Congressman Rosendale's Forest Information Reform Act (H.R. 200)
would permanently fix Cottonwood by clarifying that perpetual
reconsultations over forest plans are not required. Notably, it would
not affect reconsultation over individual projects to implement these
plans and, therefore, would not sacrifice any species conservation.
A Cottonwood fix is necessary to reduce the forest-restoration backlog
and tackle the wildfire crisis
In 2022, the Biden administration released a 10-year strategy to
tackle the wildlife crisis, which calls for restoring 20 million acres
of national forest system land over and above the Forest Service's
usual workload.\60\ To meet that ambitious but essential goal, the
agency needs a reliable and efficient process for developing,
approving, and implementing forest restoration projects. Unfortunately,
the current process is slow and cumbersome. A recent study by PERC
found that on average it takes 3.6 years after the environmental review
process is initiated to begin on-the-ground work for a project
involving mechanical treatment and 4.7 years for a project involving a
prescribed burn.\61\ If an environmental impact statement is required,
these timelines shoot up to 5.3 and 7.2 years, respectively.\62\ For
litigated projects, tack on an additional 2 years.\63\ The Wildfire
Crisis Strategy's 10-year goals cannot be met if projects are tied up
for most of that time in paperwork.
---------------------------------------------------------------------------
\60\ See Confronting the Wildfire Crisis, supra n. 9.
\61\ See Does Environmental Review Worsen the Wildfire Crisis?,
supra n. 10 at 8.
\62\ See id.
\63\ See id. at 9-10.
---------------------------------------------------------------------------
Without a permanent fix, Cottonwood would add additional delays and
bureaucracy to forest restoration projects not captured in the above
figures. According to Forest Service estimates, the temporary fix's
expiration means that the agency must reinitiate consultation over 187
species across 36 national forests.\64\ This will take the agency 5-10
years to complete at a cost of several million dollars--money which,
otherwise, could fund on-the-ground restoration work.\65\ Vicki
Christiansen, the former Forest Service Chief, summed up the problem
well: ``the consequences are severe . . . [T]his Cottonwood decision is
duplicative . . . It takes numerous resources away from getting work
done on the ground.'' \66\
---------------------------------------------------------------------------
\64\ Deputy Chief French QFR, supra n. 12 at 2.
\65\ See id.
\66\ See Legal and Practical Implications, supra n. 11 at 10.
---------------------------------------------------------------------------
Endangered and threatened species and other wildlife may pay the
price for bureaucratic delays. In 2011, the Klamath National Forest
proposed a project to reduce wildfire risks in northern spotted owl
habitat.\67\ For 10 years, the project was held up due to objections
over impacts to the owl.\68\ Ultimately, 2021's Antelope Fire ``burned
through the site before a single chainsaw touched a tree, destroying
the owl habitat that the environmental groups were trying to save,''
according to the Sacramento Bee.\69\ And the negative impacts to
wildlife can continue long after the last flame is put out. In New
Mexico, Rio Grande cutthroat trout are still struggling a decade after
a catastrophic wildfire burned through Bandelier National Monument.\70\
---------------------------------------------------------------------------
\67\ See Ryan Sabelow & Dale Kasler, Wildfire scientists push back
against CA environmentalists, Sacramento Bee (Oct. 17, 2021).
\68\ See id.
\69\ See id.
\70\ See Susan Montoya Bryan, Post-wildfire conditions result in
poor recovery for fish, AP (Mar. 10, 2023).
---------------------------------------------------------------------------
Although Cottonwood is limited to the Ninth Circuit, its effects
will be felt far beyond. The Ninth Circuit covers Arizona, California,
Oregon, Washington, Idaho, Montana, Alaska, and Hawaii, states which
contain a disproportionate share of the national forest system.\71\
When forests in these states burn, they release smoke that travels
hundreds of miles, exposing countless communities to harmful
pollutants.\72\ They also threaten landscapes and species valued by
people around the country and, indeed, around the world.\73\
---------------------------------------------------------------------------
\71\ See Fix America's Forests, supra n. 2 at 16. 85% of cases
challenging forest restoration projects are filed in courts within the
Ninth Circuit. See id. at 38.
\72\ See Nadja Popovich & Josh Katz, See How Wildfire Smoke Spread
Across America, N.Y. Times (July 21, 2021). See also EPA, Why Wildfire
Smoke is a Health Concern (last accessed Mar. 2, 2023).
\73\ See Kyle Dickman, To Save Sequoias From Wildfire, We Must Save
Them From Ourselves, Outside (July 13, 2022).
---------------------------------------------------------------------------
Projects in neighboring states may also be affected if litigants
can find a way of filing cases challenging them in the Ninth Circuit.
Such stark differences in the law among circuits encourages forum
shopping. In 2019, an environmental litigation group filed a case in
Arizona seeking to block forest restoration projects throughout Region
3, which includes all of New Mexico.\74\ The Forest Service identified
the injunction from that case--and the region's foresters need to catch
up after missing a year of their work because of it--as a factor in the
prescribed burn that grew out of control and became the 340,000-acre
Hermit's Peak fire.\75\
---------------------------------------------------------------------------
\74\ See WildEarth Guardians v. Fish & Wildlife Service, 416 F.
Supp. 3d 909 (D. Ariz. 2019).
\75\ See Forest Service, Gallinas-Las Dispensas Prescribed Fire
Declared Wildfire Review (2022).
---------------------------------------------------------------------------
Reversing Cottonwood would not undermine the Endangered Species Act
While reversing Cottonwood would remove a significant obstacle to
forest restoration, it wouldn't sacrifice protections for species. As
the Tenth Circuit explained in Forest Guardians, forest plans and
similar land management plans are not self-implementing.\76\ They are,
the court explained, ``more akin to `road maps' . . . creating a
vision'' for future forest management decisions.\77\ These plans can
only affect listed species by being implemented through individual
projects. And all of these projects must already go through
consultation and address impacts to newly listed species, designated
critical habitat, or discovered information.
---------------------------------------------------------------------------
\76\ See 478 F.3d at 1154.
\77\ See id. at 1155.
---------------------------------------------------------------------------
Fixing Cottonwood would also not interfere with implementation of
the Endangered Species Act. The rule announced in the case did not
exist during the statute's first four decades. It has never applied in
most of the country. And even where and when it has applied, Congress
has sharply limited its application through the temporary fix. Thus,
allowing the decision to go fully into effect is likely to upset
settled implementation of the Endangered Species Act, rather than the
reverse, by significantly increasing the burden on the Fish and
Wildlife to do a significant number of duplicative consultations that
distract from its on-the-ground efforts to recover species.
Cottonwood's supporters claim that it is essential to species
conservation and imposes virtually no burdens on the Forest
Service.\78\ But their arguments are self-refuting. One claimed a
document ``debunked'' any argument that Cottonwood produces delays
because the Custer-Gallatin National Forests' reconsultation over the
lynx critical habitat took less than 4 months.\79\ But the document
actually shows that the consultation took nearly a year.\80\ The Forest
Service was only able to limit the delay t6his much by devoting 400
employee days to the work at a cost of $250,000.\81\ Another group
asserts that fixing Cottonwood would ``gut'' the consultation
process.\82\ The only example they cite for this hyperbolic assertion
is a reconsultation over several frog species in the Sierra
Nevadas.\83\
---------------------------------------------------------------------------
\78\ See Bart Johnsen-Harris & Lauren McCain, Cottonwood Overhaul
Threatens Strength of the ESA, Defenders of Wildlife (Dec. 22, 2022);
Press Release, Completion of Northern Rockies Lynx Analysis Discredits
Montana Senators' Rationale for Weakening Endangered Species Act,
Center for Biological Diversity (Dec. 4, 2017).
\79\ See Completion of Northern Rockies Lynx Analysis, supra n. 78.
\80\ See Biological Opinion on the Effects of the Northern Rockies
Lynx Management Direction, supra n. 51 at 1, 4 (stating that the
consultation was initiated on Nov. 2, 2016 and concluded on Oct. 18,
2017).
\81\ Deputy Chief French QFR, supra n. 12 at 2.
\82\ See Cottonwood Overhaul Threatens Strength of the ESA, supra
n. 78.
\83\ See Letter from Alaska Wilderness League, et al., to House and
Senate Leadership (Dec. 13, 2022).
---------------------------------------------------------------------------
But that reconsultation resulted in no change to the forest plan or
benefits to the species, it was simply duplicative.\84\ And, of course,
these examples do not reflect what would happen now that the temporary
fix is expiring and the Forest Service suddenly faces 5-10 years' worth
of reconsultations to complete all at once at a cost of time and money
the agency doesn't have to spare.\85\
---------------------------------------------------------------------------
\84\ See also Fish and Wildlife Service, Amendment of the
Programmatic Biological Opinion on Nine Forest Programs on Nine
National Forests in the Sierra Nevada of California for the Endangered
Sierra Nevada Yellow-legged Frog, Endangered Northern Distinct
Population Segment of the Mountain Yellow-legged Frog, and Threatened
Yosemite Toad 2, 58 (June 15, 2017) (deeming the Forest Service's
existing standards and best management practices were already
sufficient). These groups have also emphasized the remarkably short
amount of time spent on this consultation (10 days). But this amount of
time is misleading. In that case, the Forest Service had previously
consulted after the Service proposed critical habitat for the frogs and
toad and prospectively addressed and regulated the proposed areas as if
they had already been designated. See Programmatic Biological Opinion
on Nine Forest Programs on Nine National Forests in the Sierra Nevada
of California for the Endangered Sierra Nevada Yellow-legged Frog,
Endangered Northern Distinct Population Segment of the Mountain Yellow-
legged Frog, and Threatened Yosemite Toad (Dec. 19, 2014). See also
California Cattlemen's Assoc. v. Fish & Wildlife Service, 369 F.Supp.3d
141 (D.D.C. Mar. 27, 2019) (denying grazing permittees' standing to
challenge the critical habitat designation because the Forest Service
began regulating to conserve ``essential habitat'' more than a decade
earlier and the designation led to no new restrictions).
\85\ See Deputy Chief French QFR, supra n. 12 at 2.
---------------------------------------------------------------------------
Cottonwood was wrongly decided
Finally, Congress should fix Cottonwood because the Obama
administration's position in the case was correct and the Ninth
Circuit's decision was not. The Endangered Species Act does not impose
a free-floating consultation requirement for federal agencies. Instead,
it requires that they consult over any ``action'' they approve, fund,
or carry out that is likely to harm species or their critical
habitats.\86\ This limits consultation to proposed or ongoing agency
actions. Once a forest plan or other land-use plan is finalized, the
action is complete and the consultation requirement no longer
applies.\87\ This conclusion is compelled by the logic of a 2004
Supreme Court decision.\88\ And it is explicitly confirmed by the Tenth
Circuit.\89\
---------------------------------------------------------------------------
\86\ 16 U.S.C. 1536(a).
\87\ See Pet. for Cert., supra n. 12 at 28-32.
\88\ See Southern Utah Wilderness Alliance, 542 U.S. at 73.
\89\ See Forest Guardians, 478 F.3d at 1154-55.
---------------------------------------------------------------------------
The Ninth Circuit, on the other hand, essentially read the action
requirement out of the statute. According to it, so long as an agency
has the power to potentially take some future action that might affect
a species, it must perpetually reconsult over its past, completed
actions. As the Obama administration warned in urging Supreme Court
review of the case, there is no limiting principle to this theory.
Unless it is reversed, there's no reason to expect it to be limited to
forest plans and other land management plans. Instead, every agency
could have to repeatedly consult over every regulation they've ever
issued every time a new species is listed, critical habitat is
designated, or a new study comes out.\90\ And supporters of Cottonwood
have already indicated they want to stretch the decision to other
agencies.\91\ Neither the Fish and Wildlife Service nor other federal
agencies have the bandwidth for such an unlawful, unprecedented, and
unnecessary expansion of the consultation requirement.
---------------------------------------------------------------------------
\90\ See Pet. for Cert., supra n. 12 at 28-32.
\91\ See Letter from Alaska Wilderness League, supra n. 83 at *3
(suggesting Cottonwood be applied to the Environmental Protection
Agency, Army Corps of Engineers, Department of Transportation, Federal
Emergency Management Agency, and other agencies).
---------------------------------------------------------------------------
Conclusion
Shrinking the 80-million-acre restoration backlog that fuels the
wildfire crisis is an urgent conservation challenge. Cottonwood erects
unnecessary red tape and encourages special-interest litigation that
would hinder the Forest Service's ambitious 10-year goals in the
Wildfire Crisis Strategy. Allowing the temporary Cottonwood fix to
expire and the decision to fully go into effect would be a serious
setback to forest restoration. Congress should act now to fix the Ninth
Circuit's errant decision.
______
Mr. Tiffany. Thank you, Mr. Wood, for your testimony. The
Chair will now recognize Members for 5 minutes. We will start
with Representative Fulcher from Idaho.
Sir, you have 5 minutes.
Mr. Fulcher. Thank you, Mr. Chairman, and thank you to our
panelists for coming and speaking today. I appreciate your
input, expertise, and your work.
I have a few questions, but I would like to start with Mr.
French. I didn't get to hear all of your testimony, but I was
able to read it, and I wanted to touch base in regard to the
fire retardant issue. We have a piece of legislation on that,
obviously, coming up here. Share, if you will, to me and to the
Subcommittee here, on what would happen with the Forest
Service's ability to fight fires if that tool was not in the
toolbox?
Mr. French. So, the question is if we lost the ability to
use retardant?
Mr. Fulcher. Yes.
Mr. French. It would be a critical loss of an essential
tool we have to protect communities. In the last 12 years, we
have dropped more than 81,000 times retardant in order to
create critical space for our firefighters to go in and reduce
the intensity of fires before they come into communities.
It is an essential tool for us out West. And as a past
firefighter, I can't imagine sending ground folks in to fight
fires if you have not gone through and pre-treated or reduced
areas from their intensity with retardant. It would be
crippling.
Mr. Fulcher. Thank you for that, and for the perspective.
While you are on here, I want to do another question with you,
and this has to do with the FIR Act. I think that you had
mentioned in your testimony, at least in the written testimony,
that the Forest Service had some concerns with the FIR Act, and
that is the legislation Mr. Rosendale has. Is that the case,
and can you share what that might be?
Mr. French. Yes. I think, in terms of the FIR Act, there
are some specific call-outs to the role of project level
consultation that we would like to work with you on to be more
specific in the language, as an example. Those are some of the
spaces that we would like to focus on.
Mr. Fulcher. So, it is a language issue, or there is a
fundamental problem in the approach?
Mr. French. No, there is definitely a language issue that
requires some clarification on how it is applied.
Mr. Fulcher. OK. All right. Thank you for that.
Mr. Bronson, if I could talk to you just for a moment here.
You had an interesting comment with your testimony that
litigious special interests have weaponized the Endangered
Species Act. And beyond just fixing a major issue, the
Cottonwood decision, what other reforms would you recommend to
solve that problem?
Mr. Bronson. Well, Mr. Chairman, Representative Fulcher,
that is a big question.
I think, fundamentally, that the Endangered Species Act
lays out some very clear restoration goals and processes. The
problem with this specific issue with Cottonwood is the fact
that we have a loop that they keep returning back again any
time new information comes on. It makes it hard to manage,
going forward. So, that is specifically here.
But I think the other issues relating to the use of the
Equal Access to Justice Act, where folks are, frankly, making
money filing suits again and again over these issues, those are
probably our top concerns.
Mr. Fulcher. Thank you for that. I can't disagree.
I have about 1 minute left here. Mr. Wood, you also talked
about the Cottonwood decision. In 30 seconds or so, paint a
picture from your perspective what the West would look like if
every single forest plan or resource management plan had to be
redone every time a new endangered species challenge comes up.
Mr. Wood. Yes. So, I think the best example to look at is
what happened with the Mexican spotted owl litigation that
delayed forest restoration work in New Mexico and Arizona for
over a year, and ultimately led to a wildfire there.
If you have dozens of existing forest plans that have to go
through re-consultation all at the same time, the Forest
Service doesn't have the ability to do that. It is not going to
be a matter of weeks, like some of the cherry-picked examples
that supporters of Cottonwood cite. It is going to take years.
And in the meantime, projects are not going to be able to go
forward because you cannot invest resources or do on-the-ground
work while you are consulting at the forest plan level.
Mr. Fulcher. Great. Thank you, Mr. Wood, panelists.
Mr. Chairman, I yield back.
Mr. Tiffany. Thank you, Representative Fulcher. Next, I
would like to recognize the Ranking Member, Representative
Kamlager-Dove.
Ms. Kamlager-Dove. Thank you, Mr. Chair.
Ms. Brown, in your testimony, you noted how frequently the
Forest Service re-initiates these consultations at the
landscape level scale. There are approximately 154 national
forests. How many per year re-initiate consultations on their
plan, and what is the main reason that they do so?
Ms. Brown. Thank you, Congresswoman. I appreciate that
question.
Usually, the reason that the Forest Service re-initiates
consultation is because of an underlying change in the action,
meaning that the Forest Service is actually changing its forest
plan on its own, in response to either amending the plan to
incorporate, for example, new information or new provisions, or
is revising their plan. So, usually, the agency itself is re-
initiating consultation, as it should, under the law.
Ms. Kamlager-Dove. And how many, do you think?
Ms. Brown. I think the number is pretty low. It is around
seven per year, I believe.
Ms. Kamlager-Dove. OK, great. Now, on these rare occasions
where re-initiation occurs, it is my understanding that the
U.S. Fish and Wildlife Service has to complete a biological
opinion. And when this occurred in the national forests in the
Sierra Nevada for several species of endangered frogs, how long
did it take to complete?
Ms. Brown. I think it took 11 days.
Ms. Kamlager-Dove. OK. And under this legislation, if the
Forest Service or BLM learned that climate change, worse
droughts, or wildfires were occurring and harming endangered
salmon, or bull trout, or spotted owls, or amphibians, or any
species, could they re-initiate consultation at the landscape
scale to address the impacts of climate change?
Ms. Brown. Yes, they could, and they should do so.
Ms. Kamlager-Dove. OK. Mr. French, do you agree or disagree
with these answers?
Mr. French. I definitely disagree with the context of some
of the answers.
The example we use: Often, when you hear about the time
frames for consultation, they don't take into consideration
literally the months and sometimes years it takes of
negotiations to develop the analyses to support those. The last
one that we did, as an example here, that looked at the Lynx
Amendments that we did in Region I, that was over 400 personnel
days that took us to get there, and it was nearly a quarter of
$1 million, and it took well over a year. And that is more the
typical space that we find ourselves in.
More importantly, every project that was held up had gone
through specific consultation, and there was no change to all
those plans that we re-consulted on, because all the standards
and guides essentially were fine for what we were doing. So,
there was really no conservation benefit.
Ms. Kamlager-Dove. OK. So, when you say you disagree with
the context, it is really my questions, not necessarily her
answers.
Mr. French. Well, I disagree with the--I mean, you could--
--
Ms. Kamlager-Dove. I have a limited amount of time, so I am
going to reclaim my time and go on.
Ms. Brown, we are hearing arguments that the 9th Circuit's
Cottonwood decision was wrongly decided because forest plans
are not ongoing actions that require consultation. Do you agree
with this assessment?
Ms. Brown. No, I don't. The 9th Circuit Court of Appeals in
Pacific Rivers Council v. Thomas in 1994 held that forest plans
are ongoing actions and, therefore, because the agency retains
control over those plans, that re-initiation is required under
the Endangered Species Act. So, it has been the law of the 9th
Circuit since 1994. There have been several other cases that
have come to the same conclusion in addition to the Cottonwood
case, and yet we have been able to manage our lands just fine
since 1994.
So, I don't think that the Cottonwood case is really the
boogeyman that folks hold it out to be. And it is interesting
that we are now in this place when this has been the standard
case law for the vast majority of our national forests for many
years.
Ms. Kamlager-Dove. Thank you. And my last question to you
is, if you can just elaborate on why the FIR Act is not needed,
in your opinion.
Ms. Brown. Yes, I think that the Endangered Species Act
works the way that Congress intended it to act. There is a two-
phase approach. One, we are doing consultation on forest plans
to undertake that large-picture view to make sure that our
forest plans have the standards, and guidelines, and objectives
in them in order to conserve and recover listed species. And
then we need to take an individualized project-level look, as
well, so that you look at how that plan is playing out in a
particular place with additional information.
So, both levels of consultation provide information back to
the Forest Service to make sure that they are, in fact, meeting
their congressional obligations under the Endangered Species
Act.
Ms. Kamlager-Dove. Thank you for that.
Mr. Chair, I yield back.
Mr. Tiffany. The gentlewoman yields. Next, I would like to
recognize Mr. Bentz from Oregon.
Mr. Bentz. Thank you, Mr. Chair, and my first question--I
heard the statement that our forests are doing just fine, but
perhaps I misunderstood that.
Ms. Brown, was that what you meant to say, that our forests
are doing just fine under the current planning? I just heard
that phrase a few minutes ago.
Ms. Brown. Yes, I think that, legally, the forests are
doing as is required by Congress. If your question is, could we
do better in terms of our management of those lands, yes, I
would agree with you, as we are trying to do in eastern Oregon
with our collaborative work in your district.
Mr. Bentz. Right. And to that end, the folks here would
probably be interested in knowing that I think the reason it is
working is the collaboration effort is good. Of course, it
takes years, and it takes everybody around the table. But the
only reason that it finally ultimately works is because some of
that which is removed actually pays for the cost of removal.
And I have seen pictures of the log decks in that area, so
I know that is exactly what is happening. So, the real
challenge is to try to get people convinced, as you have tried
to do, and I applaud your efforts, to allow the removal of
actually merchantable timber in the process of cleaning up the
forests. And that, to me, is a key element of any activity.
Otherwise, you can't pay for it.
So, are you here willing to testify today that, indeed,
being able to take merchantable timber off the land when we are
trying to repair the forests, if you will, is an acceptable
element of any of these plans?
Ms. Brown. Yes, I am. I believe that there are areas of our
forests that can pay for their way out of the woods. There are
also probably more millions of acres that are going to require
and have required congressional investment in order to pay to
get that stuff off the land.
But yes, there can be a mix of activities, particularly as
long as we have multiple-use management laws on the books.
Mr. Bentz. Right, and thank you for that.
Mr. Ellis, there is a constant refrain about the climate
change. It is almost used, when we hear those two words, as an
excuse, or maybe even something that we Republicans are blamed
for. It is our fault almost that there is climate change.
And then there is a quick movement away from the actual
fact of hotter and drier, which it is, longer seasons--the need
to delay getting back into the forests and actually do
something about it. We call it adaptation, I think. Because we
know it is getting hotter, we know it is getting drier, and we
need to get into the woods and fix it. Yet, the type of
processes that apply to these absolutely essential activities
delay, and delay, and delay. And the Cottonwood decision will
delay things. There is no doubt of it.
But what is your thought? Is there a reason that justifies
doing yet another study, when we know millions of acres are
going to burn down? Is there something that is so much more
important that we study it while we watch it burn? Or shouldn't
we get in and do something about it to try to protect our
forests first?
I mean, I am just asking. Should we study this thing until
we all burn up, or should we get in the forests and do
something about it?
Mr. Ellis. Well, with regards to the current legislation,
our organization does support the bill. The Forest Service has
so much on their plate with the monies coming down through
infrastructure and their 10-year strategy, which is a good
strategy for addressing the restoration, especially in these
fire sheds, to have to go back on their already existing plans,
it is going to cost them money, it is going to take staff time.
But back on your question about climate change, climate
change is real. We are all feeling it, and it is affecting the
forests, our rangelands. And our organization thinks the Forest
Service has a good 10-year strategy in place. I think it is
important in implementing the strategy to work with the
communities. That is going to be very important for success----
Mr. Bentz. Mr. Ellis, I appreciate the work--and by the
way, don't get me wrong, it is getting hotter. It is getting
drier. There is no doubt of it, and none of us dispute it. The
real thing that I dispute is we don't seem to be adapting to it
quickly enough by getting in the forests and trying to save
them, particularly when it comes to the sequoias.
And one last question. I will go back to Ms. Brown for a
second, and it is kind of a blunt question. The temporary
Cottonwood fix will expire this month if Congress doesn't
provide a permanent fix. Do you or your clients plan to file
litigation against the Forest Service in Region 6 using
Cottonwood as a precedent?
And if so, where do you believe it will be triggered, on
what national forests and what current forest management plans?
If you are not, then that is good, too. That is better,
actually.
Ms. Brown. As an attorney yourself, you probably are aware
that if I did have such plans I couldn't disclose those for an
ethical breach.
Mr. Bentz. Well, I am glad you don't have any. That sounds
correct. I am happy to hear you are not going to be suing on
that kind of a basis.
With that, I yield back, Mr. Chair.
Mr. Tiffany. The gentleman from Oregon yields back. I would
like to recognize Representative Stauber for 5 minutes.
Mr. Stauber. Thank you very much, Mr. Chair. I would like
to welcome a very good friend of mine who is a logger and
trucker from Northern Minnesota. He and his family harvest the
wood that we produce in Northern Minnesota. Mr. Peter Wood, he
is part of the Associated Contract Loggers and Truckers of
Minnesota. I have been out with him, and it is something to
see, he, and his daughter, and son harvest those crops in
Northern Minnesota in such a professional way. Peter is sitting
to the right, he has his boots on if need be, if we need
something harvested, he is ready to go.
Peter, thank you for being here today.
Deputy Chief French, good to see you again. And I want to
thank you for joining us today.
First of all, thank you for your willingness to work with
my friend and colleague, Mr. Rosendale, on H.R. 200. Fixing
Cottonwood needs to be a high priority. As you mentioned in
your testimony, many forest plans are set to expire. Both of
the plans in my district, the Superior and Chippewa plans, are
in very late stages. And just a few months ago, the U.S. Fish
and Wildlife Service uplisted the northern long-eared bat to
endangered, despite no human cause whatsoever.
[Slide.]
Mr. Stauber. And as you can see behind me, the range of the
northern long-eared bat is massive. My district, along with all
of the Midwest, and most of the East are completely engulfed in
northern long-eared bat habitat.
Mr. French, under Cottonwood, will every new northern long-
eared bat roost discovered on forest system lands create the
possibility of a new ``information lawsuit'' at the project
level?
Mr. French. It certainly could.
Mr. Stauber. Repeat.
Mr. French. Yes, it could.
Mr. Stauber. OK. When safe harbor expires for plans such as
the Chippewa and Superior, will this set up a whole new level
of liability for consultation?
Mr. French. Yes, what will happen as of today is that we
have 87 plans that have one of those triggers, either a new
listing, new species, or new information that we would need to
start re-consultation on.
Mr. Stauber. So, some claim this re-consultation is not
onerous because it is limited to 135 days. In your experience,
does consultation actually occur within that time frame?
Mr. French. No. And I want to be thoughtful here, because
we have a very good working relationship with the Fish and
Wildlife Service and NOAA Fisheries.
When you start the official clock and you create that time
frame, there are literally usually months, and months, and
months, sometimes years, of work that goes into a particular
consultation. I did it for years. I mean, that was part of my
role in this agency. I think, across the board, if you talk to
any of our biologists, we routinely never meet that deadline.
I will say that the Fish and Wildlife Service and the
leadership there are working diligently to help change that.
Mr. Stauber. I agree, we do need to change that. Again,
thank you very much, Mr. French, for your willingness to work
on H.R. 200 with my good friend, Mr. Rosendale. We need to
solve this problem.
Mr. Ellis, in my minute and 32 seconds here, thank you for
joining us. I am a proud co-sponsor of Mr. LaMalfa's
legislation because we need to be doing all that we can to
suppress wildfires. I am worried about the Biden
administration's lack of seriousness here. If a nation-wide ban
takes effect, how much more danger should wildland firefighters
expect to face as they try to fight catastrophic wildfires?
Mr. Ellis. It is a problem. As a former firefighter, there
are many times where I ordered retardant, or been on fires that
had retardant. As I said in my testimony, it is a critical tool
to stay in the toolbox.
Mr. Stauber. It would put firefighters' lives in danger,
correct?
Mr. Ellis. Yes, firefighters and the public, not to mention
the public and people living in these communities.
Mr. Stauber. Thank you. I will just say that, first off,
thanks for your service. To allow this Administration to put a
blanket ban on--I think is derelict. As a witness here today,
you just supported Mr. LaMalfa's legislation in a way that many
people don't understand. They don't look at the human toll and
the concern for our firefighters out in our forests that are
fighting these forest fires to protect all of us, including the
forests, and our lives. And I want to thank you for that.
And I want to thank all the witnesses for your testimony,
taking the time to come here to be at this hearing.
And, Mr. Chair, I yield back.
Mr. Tiffany. The Representative yields. Now, I would like
to recognize the Representative from California.
Ms. Porter. Thank you so much.
Ms. Brown, we are told that because consultation occurs at
the project level, that it doesn't need to happen again at the
plan level. But it is my understanding that there are binding
decisions made in plan-level documents like the placement of
roads, or areas designated for off-road vehicle use that could,
in fact, have impacts on newly-listed species.
Is it your understanding that all we need is project-level
consultation to ensure land management decisions are not
jeopardizing endangered species?
Ms. Brown. No, Congresswoman, I do believe that we need to
do consultation at both levels for the reasons that you just
pointed to. For example, off-road vehicle use, including winter
off-road vehicle use, is something that is authorized in the
forest plan, and there are no subsequent project-level
decisions that deal with that once that decision is made that
we can go in certain areas off-roading, both winter and summer
recreation. There is no further authorization that is required.
So, it is important to take a look at that plan level to make
sure that that authorization doesn't jeopardize listed species
or their critical habitat.
So, this legislation would obviate that view when, in fact,
that might actually be the action that is pushing a listed
species toward extinction.
Ms. Porter. So, it is the plan level consultation currently
that helps us see the cumulative impacts across the landscape
or a given region.
Ms. Brown. That is right.
Ms. Porter. Are there other decisions included--can you
think of any--I mentioned the off-road vehicle use or the
creation of a road. Do you have any other examples, if you can
think of any, that are examples of things put in at the project
level that could end up being a problem down the road, and that
we need to see at the plan level?
Ms. Brown. Yes, I think there are some other types of
examples. One, are long-term authorization decisions that are
made once, and then we implement those decisions over long
periods of time that are authorized by the forest plan.
So, for example, mining is one such example. Grazing is
another type of example. We are very behind on our
environmental analysis and consultation on grazing decisions,
and yet those are authorized initially in the forest plan
itself. So, if we are not looking at the forest plan that
actually addresses some of those longer-term authorizations, we
are missing a big piece of the puzzle.
Ms. Porter. Thank you very much. I yield back.
Mr. Tiffany. Thank you. Next, I would like to acknowledge
Representative Moylan for 5 minutes.
Mr. Moylan. Thank you, Mr. Chairman. Just a question for
Mr. Steve Ellis.
Sir, I thank you for your 38 years of firefighting service
there, and I understand, with your experience with these
fires--you are here today, at least. You knew exactly how to
take care of our forests and other people that you helped out
throughout that service. So, thank you, sir.
And in your testimony, you mentioned that you are aware of
instances where these retardant drops, at the right time and
place, make all the difference in life and property protection
for the final outcomes. And sir, with all your experience, I
would just like you to continue to express to us the importance
of what this is with your frontline examples when it comes down
to it.
Explain more if these retardant drops can make such a
difference in these types of wildfire situations.
Mr. Ellis. Well, Congressman, I mean, there are many
examples out there you could come up with in 38 years. I think
one that comes to mind for those of you familiar with Blaine
County, Idaho, Sun Valley and Ketchum, Idaho. Back in the
1980s, I had a call one night. An aircraft had come out of the
Sun Valley Airport and gone into the mountainside. It was
tragic. All lives were lost. I think a Boise News reporter was
on that flight, as I recall.
So, my people and I went up there, and we were working
direct. That means we were working a line burning out between
the fire and--the mountainside was on fire between the fire and
the community down above Hailey. Obviously, we don't use
retardant at night. In daytime, we would have put it down, but
in the morning we had the airtankers going, and we put some
down on top to keep it from looping around toward Ketchum.
Everybody knows about Ketchum, Idaho, if you head north that
way. And then also, to assure it wouldn't move down into the
community where the houses were, and we caught it. And a tragic
loss of life, a small aircraft. I could give you a lot of them.
But that is one that comes to mind.
Mr. Moylan. I appreciate you stressing the point, and I
thank you once again for what you have done and appreciate all
the work you continue to do to educate us on the right thing to
do here, as the Committee. So, thank you very much.
Mr. Chairman, I yield back. Thank you, sir.
Mr. Tiffany. The Representative yields. Next, I would like
to recognize Mr. Rosendale for 5 minutes.
Mr. Rosendale. Thank you, Mr. Chairman. First, I request
the unanimous consent to enter into the record a letter of
support from Senator Daines, who has the companion bill in the
Senate for my FIR Act.
Mr. Tiffany. So moved.
[The information follows:]
UNITED STATES SENATE
March 23, 2023
Chairman Bruce Westerman Ranking Member Raul Grijalva
Committee on Natural
Resources Committee on Natural Resources
1324 Longworth House Office
Bldg 1332 Longworth House Office Bldg
Washington, DC 20515 Washington, DC 20515
Dear Chairman Westerman, Ranking Member Grijalva, and Members of
the Committee:
I write in support of the legislative hearing the Subcommittee on
Federal Lands will hold on Congressman Rosendale's Forest Information
Reform (FIR) Act, which takes up the important question of fixing the
disastrous consequences that came from the 2015 Cottonwood
Environmental Law Center v. U.S. Forest Service (Cottonwood) decision.
The Cottonwood decision has caused significant damage by delaying
necessary forest management work, which has hampered wildfire
mitigation efforts and wildfire restoration projects on our public
lands and National Forests leading to a higher risk of wildfire. For
example, a proposed forest management project in the Lewis and Clark
National Forest of Helena, Montana, was delayed by Cottonwood
litigation. Soon after, the Park Creek and Arrastra Wildfires burned
over half of the proposed treatment area damaging forest health and
valuable wildlife habitat. Unfortunately, this cycle of ligation delays
and wildfire is not a unique occurrence. Cottonwood litigation can
involve multiple states and multiple forests in the same delays. This
happened to five national forests in New Mexico and one in Arizona that
were embroiled in Cottonwood litigation, which delayed forest
management work and put at risk millions of acres of national forest.
In the wake of these delays, the Hermits Peak Fire became the largest
wildfire in New Mexico's history. A permanent fix is urgently needed to
stop the frivolous attacks against responsible forest management.
In 2018, Congress included a partial Cottonwood fix in the
Consolidated Appropriations Act, which amended consultation
requirements for the Forest Service and BLM. National Forest System
lands and BLM lands were exempted from re-initiation of consultation,
under certain circumstances, but this fix expires today. This hearing
on the FIR Act is timely as the Committee will hear updates from the
Forest Service on the expected result of this expiration. In 2021, at a
Senate Energy and Natural Resources hearing, Deputy Chief of the
National Forest System, Chris French testified that approximately one
hundred forest plans will have to immediately initiate a re-
consultation as a result of the expiration, which would cost millions
of dollars over several years, not to mention the possibility of even
more litigation that would slow or stop forest management projects.
This would be devastating for forested communities as we enter the 2023
fire season.
A Cottonwood fix is critical for forest and ecological health and
has enjoyed bipartisan support in the Senate. Last Congress, the Senate
Energy and Natural Resources Committee passed my bill that would fix
the 9th Circuit's Cottonwood decision, S. 2562, by voice vote. It is
time we get this permanent fix signed into law and I thank the
Committee for the persistent work in this shared goal.
I look forward to working with you, the House of Representatives in
its entirety, and my colleagues in the Senate to send a Cottonwood fix
to President Biden's desk.
Sincerely,
STEVE DAINES,
United States Senator
______
Mr. Rosendale. Thank you so much. Very good. I am going to
start with Mr. French.
Mr. French, I am trying to set a historical perspective
here on exactly what has been going on in the Forest Service.
It seems to me that, basically, you used to be an enterprise
unit, and that the Forest Service used to generate revenue back
into the Federal Government.
[Chart.]
Mr. Rosendale. If we look at the chart right behind me
here--it is a little bit crooked--but you can see that at one
time, going back into 1989, the Forest Service, adjusted by
inflation, was generating $2.9 billion a year, $2.9 billion a
year of revenue, which certainly was going to take care of
covering the costs for the Forest Service, and then generate
revenue for the people across this nation.
And in Fiscal Year 2021, that value has been reduced to
about $152 million, one-twentieth of the actual revenue that
they used to generate back in 1989. Does that seem like it is
accurate to you? I mean, do I have something that is wrong,
or----
Mr. French. I mean, the total volume--if you are referring
to timber harvest from that time to this time has declined,
significantly declined, especially in terms of the amount of
merchantable sawlogs that we offer, which is where that revenue
and market base would be from.
Mr. Rosendale. Sure. So, how long, on average, do the
consultations take between the Forest Service and the U.S. Fish
and Wildlife Service? Because we continue to get conflicting
information here.
Mr. French. Well, again, I will talk on my own experience.
Like I said, it used to be under consultation approaches,
even in the 9th Circuit, before the Cottonwood decision, if we
did see an issue that we thought we needed to re-initiate and
do at a longer, larger scale, we could do that within our own
time frames if we saw something that we thought that made sense
for it. But we could continue on with our project-level
consultations, and those would look at both what the effects of
that project were, and also we have to disclose our foreseeable
actions, our past actions, look at that cumulatively. And when
we get issued a biological opinion from the Fish and Wildlife
Service, they look at the effects within the range of the
species. These take a long time.
I mean, they have 135 days. I will tell you, just as an
example, the one I gave you before took over a year for us to
accomplish. The ones in New Mexico that were referred to before
took us well over a year to accomplish. I just met with all the
regional foresters across the agency last Monday, and their No.
1 concern that they brought up to me was the length of time it
was taking for us to do consultation.
Mr. Rosendale. Exactly. I appreciate that. I am going to go
to Mr. Wood.
Mr. Wood, it is so good to have you here from Bozeman. I
have gone up on the watershed for Bozeman, and recognized that
80 percent of the city's water comes from that area. And to
think that it took 15 years to sign off on a plan that did not
deviate at all from what was proposed 15 years ago to me is
frightening, because there could have been an absolute tragedy
there if there had been a fire and that watershed had been
damaged.
So, my question is, what are the impacts of the delays for
the broader Forest Service management? What are the impacts and
risks involved in not taking care of those management practices
when they are first proposed?
Mr. Wood. Yes. So, the risk is we currently have an 80-
million-acre forest restoration backlog. That will grow if we
don't start doing work at much larger scale and reducing it.
And as long as that restoration backlog remains, we will have
wildfire risks, we will have degraded habitat, we will have
worse watersheds.
It is not just people that pay the cost, but towns like
Bozeman certainly would. We got very lucky that we didn't have
a fire in those 15 years, but our endangered and threatened
species are also paying the price for past management
decisions.
Mr. Rosendale. Thank you.
And we have heard testimony from Ms. Brown that we really
don't have that much of a delay when we are doing this
additional investigation. But I can tell you we have 28 sales
that are being held up in Montana right now, covering 30,000
acres.
If we could have the next slide brought up.
[Slide.]
Mr. Rosendale. For the 10 years between 1983 and 1993,
harvested timber acres outpaced wildfires. It outpaced
wildfires. So, we have the timber down below, and we have the
wildfire acres up above here. And as you can see, from 1983 to
1993, timber being harvested outpaced the acreage that was
being burned. And you can see what happens.
Thank you, Mr. Chair, for giving me just one more moment.
You can see what happens as the timber being harvested has
gone down. It is amazing that the total acres that are being
destroyed by wildfires has increased dramatically in those time
periods.
Thank you very much, Mr. Chair. I yield back.
Mr. Tiffany. The gentleman yields. I would like to
recognize the gentleman from California, Mr. LaMalfa.
Mr. LaMalfa. Thank you, Mr. Chairman, once again, and I
appreciate my colleague from Montana bringing those charts
there, and pointing out in graphic detail what we are looking
at with the load of inventory we have in our forests. And it
seems to make perfect sense, the correlation there between fire
and the overloaded inventory.
Let me consult here with our witness on--I would like to--
for Ms. Brown here real quick--by the way, my staff assistant
you may have seen here a little while ago wants to send ``Go
Pios'' to you. You are a Pioneer, Lewis and Clark? Yes, OK.
Ms. Brown. Yes.
Mr. LaMalfa. No one else will probably get that, but----
Ms. Brown. No, Mr. Bentz is gone.
Mr. LaMalfa. Did you ever get to go see the train museum up
there?
Ms. Brown. I have not.
Mr. LaMalfa. Oh, it is excellent. Go look up 4449, the
locomotive. Anyway----
[Laughter.]
Ms. Brown. Thank you for the tip.
Mr. LaMalfa. So, as several of my colleagues have mentioned
here in the situation we have seen ourselves getting in, the
forest condition, 40 or 50 years now, there is a lot of
frustration on this panel, as well.
The consultations were just talked about. What do you see
as the win in the length of time the consultations are taking,
versus getting out and doing the type of thinning, and
managing, and harvesting that would, I think, by Mr.
Rosendale's chart, show that there is a direct relation in
over-population in the forests and the intensity of fire?
Ms. Brown. Well, I do think that, through the consultation
process, both at the project level and at the plan level, we
are gaining information about how our land management actions
are affecting listed species, and through that process are also
able to take mitigation actions to ensure that those actions
don't unnecessarily harm listed species or their critical
habitat.
And I do agree that in many cases and in many places we
should be doing more science-based, active restoration.
I think what would be a fruitful area of conversation is to
actually dig a little deeper in terms of why is it taking the
Forest Service as long as it is to consult, along with Fish and
Wildlife Service and National Marine Fisheries Service. Is this
a staffing concern? Is it a funding concern? And I think those
questions could use a deep dive.
Mr. LaMalfa. Could it be that if, when they do the work,
that someone finds it to be incomplete and it turns into a
lawsuit because, oh, you forgot to do this, you didn't do that,
on a particular species that they somehow left off the list, or
what have you?
And it seems that those are tools used by those that don't
want us to be out in the woods to stop and stall, even post-
fire. What do you think of that?
Ms. Brown. Sometimes that is true. That is the nature of
the judicial system, that we have tools to hold the Federal
Government and agencies accountable, and oftentimes we use
those tools.
But I also do believe that there are ways to get ahead of
these issues through collaboration, for example, through
thoughtful forest planning, through thoughtful, large landscape
planning like the collaborative Forest Landscape Restoration
Program. There are ways to address those issues.
Mr. LaMalfa. Yes, it seems that one was, you might say,
more aggressive forest management harvest 50 years ago versus
what Mr. Rosendale's charts are showing is that the bogging
down is what is causing us to lose. Wildfires used to be more
commonly thought of as a big fire, maybe 5,000 acres. Now,
commonly, it is 100,000 acres any more. So, it seems the
process we are talking about is actually going backward toward
fire safety.
And with longer drought periods, we are just getting into
more trouble.
Ms. Brown. Well, if I might, Congressman, I do believe--and
it is actually a fact--that we used to harvest far more timber
than we do today. And as a result of that kind of management,
we are also facing an extinction crisis in a lot of ways. We
have also degraded water quality in a lot of ways. Now, I think
we have learned a lot in those past 50 years, and our science
has advanced in terms of how we can more sensitively manage our
lands and reduce wildfire risk.
We also used to put out fires consistently, and what the
best available science tells us today is that that was actually
a mistake, and we need to find a way to reintroduce fire in a
thoughtful and safe way.
Mr. LaMalfa. Yes, and we are so far behind, though, now it
is really hard to introduce the fire, so we have to do a lot
more mechanical harvest and find a narrow window of time in the
winter or whatever that you can actually burn things, which I
support. We probably were over-aggressive on putting out
everything instantly.
Anyway, I thank you. Mr. Chairman, I will yield back.
Mr. Tiffany. The gentleman yields. I think we have gotten
through all of our panel, and I am going to take 5 minutes here
to ask a few questions.
Mr. Bronson, what we heard earlier is that re-initiation of
the process just takes a few days, that there isn't that much
that is involved with it. Could you comment about the effect in
the Cottonwood-related injunction that helped lead to the
Hermits Peak Fire? Did those delays not affect that?
Mr. Bronson. Mr. Chairman, I think clearly, the fact that
we had overgrown habitats not necessarily in the burn area, but
adjacent to it, but also in the prescribed fire area that had
not been mechanically thinned prior to that, and the fact that
management had been held up for a long time, and there was an
urgency that was felt by the agency that led to the eventual
prescribed fire getting out of control and becoming a wildfire.
So, clearly, those delays in the prevention of that
mechanical thinning for over a year were contributing factors.
Mr. Tiffany. Yes, because I show those delays as being,
like, 13 months. Is that correct?
Mr. Bronson. Correct.
Mr. Tiffany. Yes. Deputy Chief French, why should Wisconsin
firefighters come to the West if you are not going to use that
retardant?
I have friends, I know many DNR personnel that work in fire
in the Wisconsin Department of Natural Resources. They
regularly go out West. If fire retardant is not going to be
used, why should they go out West and risk their lives?
Mr. French. Thank you, Chairman. We will continue to use
retardant as long as we are allowed to, and when retardant is
necessary in order to reduce wildfire severity, in order to
bring in ground crews. If we cannot use it, we will not put
ground crews in that position.
Mr. Tiffany. So, if you can't put ground crews in, what
happens?
Mr. French. We have to try to manage that fire in a
different way, maybe from a much further place. I mean, I want
to be clear. For us, retardant is an essential needed tool for
us to suppress fires.
Mr. Tiffany. Mr. Ellis, what is this going to look like if
they can't use retardant?
Mr. Ellis. Well, it is a problem. If you can't use
retardant, you are going to put more public at risk, you are
going to put more firefighters at risk, infrastructure, you are
going to have higher cost in property loss. It is just such a
key tool.
As far as your firefighter strategy, if you get big fires
and what you end up is going back into what we call a point
protection type of situation, where in those large fires we
just figure out key areas we want to try to defend, defend them
the best you can. But you are going to have more fires, bigger
fires. You are going to have more fires that are small, that
you would normally catch small, get larger.
Mr. Tiffany. Mr. French, is your agency going to
aggressively defend your ability to use this fire retardant?
Mr. French. Absolutely.
Mr. Tiffany. Mr. Wood, tell me about the 9th Circuit. We
are saying that the law is simply being used as being written,
and stuff like that. Is the 9th Circuit viewed as mainstream
amongst the various circuits in the United States?
Mr. Wood. No. Historically, it has been overturned by the
Supreme Court at a much higher rate than other circuits,
especially on forest management.
As I mentioned, two districts are responsible for a vast
majority of litigation. I believe the overall number is
something like 80 percent of cases are filed in the 9th
Circuit, and that is true even for forest regions that span
both the 9th and 10th. Litigants have an incentive, and do,
file cases in the 9th Circuit instead of the 10th, take
advantage of their law.
Mr. Tiffany. So, if you want to shut down natural resources
production in America, the 9th Circuit is the place to go.
Mr. Wood. Based on the current law over injunctions and
Cottonwood and other--yes, you would have the easiest time,
because there you could just prove the procedural violation.
You wouldn't have to deal with the substance.
Mr. Tiffany. So, we see significantly different decision-
making that comes out of the 9th Circuit versus some of the
others around the country?
Mr. Wood. Absolutely. The 10th Circuit has explicitly
rejected the 9th Circuit's approach on Cottonwood, and the
Supreme Court's decision in Southern Utah Wilderness Alliance
casts serious doubt on it.
Mr. Tiffany. So, my time has expired here.
We are going to move to a second round of questions here.
Any objection?
No, then I would like to recognize Mr. Rosendale for 5
minutes.
Mr. Rosendale. Thank you, Mr. Chair, I appreciate that. I
do have a couple more questions.
I want to go to a specific project. We have been talking
pretty broad about the general condition of forests and forest
health here, but we have the Stonewall Project in the Helena-
Lewis and Clark National Forest, and that would have managed--
specifically managed--vegetation to benefit wildlife,
specifically. But Cottonwood-inspired litigation delayed the
project. So, I am going to divide this into two separate
questions.
How would this project have benefited? I want to get the
environment from you, Mr. Wood, and then following, if you
could tell me how would it have benefited wildlife, Mr.
Bronson, in Montana. So, if you could, please.
Mr. Wood. So, the question is how would it benefit the
environment different than wildlife? So, I shouldn't address--
--
Mr. Rosendale. Yes, let him adjust the wildlife. We are
going to have you address the environment. How would that have
benefited the environment?
Mr. Wood. So, wildfire risk is a huge problem for water
quality and air quality. We, in Montana, breathe the trees that
burn in California and Oregon. So, when we don't address these
projects quickly, the environmental consequences are not
limited to the area, they spread wherever the smoke goes.
Mr. Rosendale. Mr. Bronson? Wildlife.
Mr. Bronson. The Stonewall Project in Montana involved elk
management objectives that were trying to increase the quality
of grazing, opening up some areas and reducing canopy cover, so
that there was improved grass and forb production, which is
what elk eat. It was specifically aimed at improving the
habitat to benefit the elk in the area.
One of the things that we have seen in Montana and in other
places is that in 1984, when the Elk Foundation started, elk
spent most of their time on Federal national forest land. And
we are seeing more and more that elk are not spending as much
time on that public land, because the improved habitat on
private land, industrial forests and places, that is where the
elk are spending more of their time, and that is creating
additional problems.
One of the problems in Montana is that elk sometimes are
impacting agriculture on private lands. Well, those elk didn't
used to do that, because they were on the national forests. And
it is because of declining habitat quality on the national
forests.
Mr. Rosendale. Thank you very much, Mr. Bronson.
[Chart.]
Mr. Rosendale. And I would say that probably the declining
condition of the forests has a lot to do with this graph that
we see here, where we used to have probably 20 times more
forests being harvested, which created that understorage that
they would actually be able to consume, instead of having the
old-growth forests, which wildlife does not--I am not a
biologist.
What wildlife would we find in these old forests that are
choked out with dead----
Mr. Bronson. Not very much, especially the older filled-in
conifer forests. Red squirrels are one of the mammalian species
that are present, but a lot of the species that many of us are
focused on and care about, they do require openings, they
require edge habitat. They require a more diverse mix of
forests. Large stands and large tracts of old growth are not as
productive for most wildlife species.
Mr. Rosendale. Thank you so much. And, again, what we see
is this broad range between what used to be harvested out of
the forests, where the wildfires were, the acreage that they
consumed, and where it has grown to today.
Now, I am not a scientist, but it doesn't take a rocket
scientist to figure out that when you decrease the amount of
timber that you are taking out of the forests, is it safe to
say, Mr. Wood, that it is going to come out of the forests in
the form of smoke instead of logs?
Mr. Wood. Yes, absolutely. And I agree with Ms. Brown's
comment earlier that commercial timber harvesting is what funds
the non-commercial harvesting that has to happen. A lot of the
greatest fire risk comes from small-diameter trees and brush,
but we can't afford to get that out if we are not doing
commercial timber harvesting.
Mr. Rosendale. And finally, Mr. Bronson, if I could, I have
seen the land after a wildfire has gone through it. And because
of the excessive fuel supply that is there, typically those
lands are sterile for quite some time. They have ruined the air
quality, as we have had other witnesses state before, that we
end up breathing the timber that is burning in California in my
home state of Montana. But we also see a deteriorating land
quality, we see water quality, we see fisheries, and they are
destroyed for many, many years.
Would you say that we are putting other animals at risk of
being listed on the Endangered Species Act by the destruction
of so much habitat?
Mr. Bronson. We certainly are reducing the quality of
habitat, which is diminishing species and populations. Yes.
Mr. Rosendale. Thank you very much. Mr. Chair, I would
yield back.
Mr. Tiffany. The gentleman yields. I would like to
recognize Representative LaMalfa for another 5 minutes.
Mr. LaMalfa. Thank you again.
In the Forest Service testimony, it was expressed that the
Biden administration opposes touching the Clean Water Act. So,
Mr. French, based on your understanding of our bill, does this
amend the Clean Water Act?
Mr. French. My understanding of the bill is it wouldn't
require us to have a permit under the Clean Water Act.
Mr. LaMalfa. Pardon?
Mr. French. My understanding of the way the bill is
constructed, the way I read it, it wouldn't require us to have
a permit for discharge under the Clean Water Act.
Mr. LaMalfa. But it doesn't change the Clean Water Act.
Mr. French. It doesn't change the underlying fundamental
law, no.
Mr. LaMalfa. All right. OK. Because what we are talking
about with this material, its typical application is about 85
percent. It is a mix, 85 percent water, 10 percent the ammonium
phosphate fertilizer, and then about the other 5 percent would
be clay and other materials that make it stick, a sticker like
we refer to in agriculture. So, the vast majority of this
material is basically inert to any environmental issue.
So, I don't understand what is being expressed here, other
than another ploy to prevent the normal operations of putting
out fire. I don't understand that. So, it is water, fertilizer,
and a little bit of a sticker material to make it stick to the
foliage. So, the problem here is one that I don't understand.
And as we have heard plenty today is that, without this
material, we are in big trouble. And one of the reasons we
named it as we did is that it is also going to be helpful for
firefighters who we put in the line of fire, so to speak, and
the safety of them being involved is critical, as well.
So, when you mentioned a minute ago it might require the
Forest Service to take a retreat position and have a fire be
much farther and much wider to find a way to defend it if we
don't have these tools, is that what I heard you say?
Mr. French. It can be, depending on the tactics of that
particular fire. We have gone through environmental disclosures
on the use of retardant, and we use low toxicity and materials,
and we have not found significant effects.
Now, having said that--or I should say we have disclosed
the effects, and they were determined to be acceptable in the
space we are in. And as was mentioned earlier, we have done a
lot to create best management practices, training, buffers in
order to reduce any potential risk.
Mr. LaMalfa. And this is done at the Forest Service
guidelines.
Mr. French. Yes.
Mr. LaMalfa. It isn't by some private party. So, they are
following your guidelines.
Mr. French. Correct.
Mr. LaMalfa. And what we have expressed over and over again
is that, using this material, you have a buffer zone. So, the
plane, the helicopter drops it. There is maybe a 300-foot zone.
None of it can hardly even get from the drop zone--maybe a
little bit into the buffer, that is what buffers are for, and
in the rare instances where there has been a water issue, my
understanding anecdotally is that that water space was
monitored, and no harm came to any wildlife or fish.
So, we are talking about a pretty safe material here. And
those folks that are trying to thwart that are really putting a
lot of land, a lot of acres, a lot of wildlife, and a lot of
people and communities in great harm.
Let me touch on the other bill that I am working with Mr.
Peters on, and I appreciate his help and being in partnership
with him on that, on a good bipartisan bill. So, Mr. French,
when we are talking about these horrendous chemicals that--me,
as a farmer in my real life, we had a hard time keeping the
ones we use, the label current and the ability to use them. And
these folks are getting to use things that have been illegal in
this country or were never legal in this country.
What are you really seeing on these sites?
I have been to the sites up in Siskiyou County, Northern
California. What are we doing here when we can hardly keep the
retardant available to us, yet so little is being done on these
illegal grow sites for marijuana and such?
Mr. French. It is a mess. I mean, we have to go in, and we
are spending millions of dollars because often we don't know
what materials were used. And then, when we do find containers,
you can see that they are very dangerous to humans. So, we have
to go in and treat it as a contaminated site.
Mr. LaMalfa. Quickly, do you find the environmental groups
are as worried about these chemicals as they are the retardant
and other measures to go fight fire?
Mr. French. I can't speak to that, Congressman.
Mr. LaMalfa. OK. All right.
Thank you, Mr. Chairman.
Mr. Tiffany. The gentleman yields. I am going to take
another 5 minutes here for a second round of questioning.
Ms. Brown, have you ever sued one of the cartels for the
damage they are doing in the national forests?
Ms. Brown. No.
Mr. Tiffany. When you have litigated, have you ever
measured the emissions from fires to incorporate into your
lawsuits?
In other words, the additional emissions that are going to
happen as a result of a lawsuit that delays a project, have you
ever incorporated that in as one of the balancing factors that
the judges should take into account?
Ms. Brown. Congressman, as far as I know, none of my
litigation has actually caused or resulted in a wildfire. So,
no.
Mr. Tiffany. As far as you know. How many sawmills have
closed in the Western United States?
You saw that chart where we went from the harvest that we
were at, and where we are at now. How many sawmills across the
West have closed?
Ms. Brown. I couldn't answer that, but I would say a
substantial number.
Mr. Tiffany. Do you know how many people are unemployed as
a result of those sawmills being closed?
Ms. Brown. I could not answer that.
Mr. Tiffany. Yes, I had a very good friend who was actually
my college roommate at the University of Wisconsin River Falls,
who went out West and went up to the glacier area, and he used
to write poignant letters to me in the early 1990s, telling
about how they are shutting us down, and we are losing so many
employees. We are losing mills, one after another. It was a
terrible story, and all due to this litigation.
Have you ever served on a fire line like Mr. Ellis is
referring to?
Ms. Brown. No, I have not, but through my collaborative
work I have kept a mill open.
Mr. Tiffany. Mr. French, so if Cottonwood expires and that
spreads throughout the country, how many forest plans across
the country will be vulnerable to re-consultation if there is
not action by Congress?
Mr. French. Our estimate as of yesterday on the expiration
today, is that there are 87 plans currently in need of re-
consultation when the safe harbor expired today.
Mr. Tiffany. How long would you guess--I mean, how long is
typical that it will take for that re-consultation? How many
days, months, years?
Mr. French. It is different. Every single plan is
different. Our earliest estimation, which we have been working
on for, actually, well over a couple of years, is likely
somewhere between 5 and 10 years and tens of millions of
dollars.
Mr. Tiffany. Five to 10 years to get through those projects
that have to go back through re-consultation?
Mr. French. For us to do consultation on the plans right
now that are subject to re-consultation with the expiration of
the safe harbor, that is our best estimate right now.
And, again, that is different, forest by forest.
Mr. Tiffany. So, it is not 13 days, it is 5 to 10 years.
Mr. French. Well, in totality of what I just gave, and we
are adding more as we don't get plans revised.
Mr. Tiffany. How is that going to affect the ability to
execute your 10-year wildfire strategy?
Mr. French. It diverts a lot of natural resource biologists
and others that would be surveying projects and doing
consultation on fuel reduction projects.
And that is one of our biggest challenges, is that our non-
fire workforce in the last 15 years has declined so much that
every little extra thing we put in the system just causes our
ability to do things to decline.
Mr. Tiffany. How are you doing hiring people?
Mr. French. We are doing better than we did a year ago. It
is still unacceptable. We have----
Mr. Tiffany. So, it is like--if I may interject--it is like
the rest of America. You talk to any employer, public or
private, they are having a hell of a time finding people.
Mr. French. Our biggest issue is housing, the salaries we
pay, the availability. We did increase last year, but not at a
rate we need to.
Mr. Tiffany. And that, folks, is why you can't say,
``Congress, throw more money at the problem. Hey, and we will
fix it,'' because there are not enough bodies to do the work
unless you can get the cartels to come and help you. Maybe you
could do it that way.
Mr. Wood, do you believe that the current method of
reporting hazardous fuels treatments will be adequate to
measure whether the target of 20 million acres is achieved, if
we continue to do things as we are?
Mr. Wood. No, based on the current reporting process, the
public won't know whether you actually reduce the backlog by 20
million acres or 5. It is incredibly difficult to tell right
now.
Mr. Tiffany. So, it is important to pass the ACRES Act.
Mr. Wood. Yes.
Mr. Tiffany. OK. Well, I am going to close things up here.
First of all, I want to recognize two constituents of mine,
the gentleman Henry Schienebeck, who serves as the Executive
Director for the Great Lakes Timber Professionals, an
organization that covers both Michigan and Wisconsin, widely
respected, and the president of the association, Matt Jensen. I
am so glad that you are here and visiting us in Washington, DC.
I hope your visit has been productive.
And then I would like to ask unanimous consent to enter
into the record these letters urging Congress to protect the
continued use of fire retardant as a tool against wildfires
from the following: California Farm Bureau; the Public Lands
Foundation; National Association of Forest Service Retirees.
[The information follows:]
Public Lands Foundation (PLF)
Arlington, Virginia
March 17, 2023
Hon. Deb Haaland, Secretary of the Interior
1849 C Street NW
Washington, DC 20036
Dear Secretary Haaland:
On behalf of the Public Lands Foundation (PLF), I am writing you
about a potentially serious issue facing the public lands and the
wildland fire management agencies this coming fire season. This past
fall the Forest Service Employees for Environmental Ethics (FSEEE)
filed a lawsuit in the Montana District Court under the ``citizen
suit'' provisions of the Clean Water Act (CWA) alleging violations of
the CWA for past discharges of aerial fire retardant into navigable
waters without a National Pollutant Discharge Elimination System
(NPDES) permit. The FSEEE is requesting that the U.S. Forest Service,
and by extension other Federal fire management agencies, not use aerial
applications of fire retardant until a permit is secured. This could
potentially result in aerially applied retardant not being available
for use in 2023, putting the public natural resources, infrastructure,
and people at risk.
As you are aware, aerial fire retardant use is a big part of the
Federal wildland fire response. It has been safely and responsibly used
for decades under the assumption that a NPDES permit was not required
because the regulations for administering the NPDES system (40 CFR 122)
specifically state that fire control is a ``non-point source
silvicultural activity'' (40 CFR 122.27). Communications from EPA
dating back to 1993 also indicated that a permit was not required. The
loss of this important tool through court order would have a nationwide
effect on Department of the Interior agencies, the U.S. Forest Service,
Department of Defense, and state fire agencies.
The National Association of Forest Service Retirees (NAFSR)
recently sent a letter to Secretary Tom Vilsack on this issue (see
attached). The letter lays out the issue in detail as well as
suggesting some solutions. The PLF is in total agreement with the
letter and encourages the Department to help find a solution to this
important issue.
Thank you for your consideration.
Sincerely,
Mary Jo Rugwell,
President
______
National Association of Forest Service Retirees (NAFSR)
Ft. Collins, CO
March 7, 2023
Hon. Tom Vilsack
Secretary, U.S. Department of Agriculture
1400 Independence Avenue, SW
Washington, DC 20250
Dear Secretary Vilsack:
This past fall, Forest Service Employees for Environmental Ethics
(FSEEE) filed a lawsuit in Montana District Court under the ``citizen
suit'' provision of the Clean Water Act (CWA) alleging violations of
the CWA for past discharges of aerial fire retardant into navigable
waters without a National Pollutant Discharge Elimination System
(NPDES) permit.
The 2011 Aerial Application of Fire Retardant EIS delineated more
than 30% of USFS land area as retardant avoidance areas and developed a
tracking process to monitor inadvertent drops into water. The 2011
decision prohibits delivery of fire retardant directly into
waterbodies, or into buffers surrounding waterbodies, with an allowed
exception to protect life and safety.
In the draft 2022 Aerial Fire Retardant SEIS, the Forest Service
disclosed that 376 out of 56,868 total fire retardant drops (less than
one percent) made between 2012 and 2019 were directly into water,
because of intrusions or the exception allowed to protect life and
safety. FSEEE is alleging these direct drops into waterbodies violate
the CWA because the Forest Service did not have a NPDES permit.
The CWA requires NPDES permits for any addition of a pollutant from
a point source to navigable waters/waters of the United States. The
Forest Service has been operating under the assumption that a NPDES
permit was not required because the regulations for administering the
NPDES system (40 CFR 122) specifically state that fire control is a
``non-point source silvicultural activity'' (40 CFR 122.27) and
communications from EPA dating back to 1993 indicated a permit was not
required. Overturning this 30-year-old exemption would set a bad
precedent, opening a Pandora's box, and likely putting other
agricultural or silvicultural exemptions at risk.
Currently there is no NPDES permit established for aerial
application of fire retardant. A rulemaking to establish a general
permit would take several years and cost millions of dollars that could
better be spent elsewhere. Even if EPA develops a national permit,
states are not required to adopt it, but can modify or create their
own. This would further complicate firefighting across state lines. A
NPDES permit would add a large and wasteful administrative burden to
Forest Service operations and would likely not change aerial
application requirements, nor actual resource effects on the ground.
FSEEE is requesting the Forest Service not to use fire retardant
until the permit is secured. This could result in fire retardant not
being available for use starting this 2023 fire year and would
needlessly put billions of dollars of infrastructure/assets/natural
resources and millions of people at risk.
More importantly, it would remove a key tool used to safely fight
wildfires and put at risk local, county, state, and federal
firefighters at a time where wildfire is increasing in scale and scope
across the western United States. Any court ruling has the potential to
be nation-wide and affect the Department of the Interior (DOI), state
fire agencies, and the Department of Defense (DOD), essentially all
those who fight wildfires on federal, state and private lands.
In our view, Congress will need to pass legislation, either to give
agencies time to develop a national permit or to codify the existing
firefighting exemption. At a minimum, a potential solution would be to
pursue a legislative fix that would allow the agency time to work
through the permitting process while continuing to use fire retardant.
A much better and permanent solution would be to legislate that a
permit not be required under this section, nor should any State require
a permit, for application of fire retardant from aircraft in connection
with fire suppression activities. We support the latter.
Many members of NAFSR are former wildland firefighters and
understand the need and use of fire retardant as a critical tool, as
well as the need to ensure its careful use. We feel that to not allow
the use of fire retardant in fire suppression would be unconscionable.
The Congress would also find it unacceptable to stand by in the
middle of this summer as a wildfire threatens life, property, and
valuable natural resources without the use of fire retardant.
Legislating during such an emergency is certainly less desirable than
acting now.
Sincerely,
Steve Ellis,
Chair
______
Mr. Tiffany. In their letter, the National Association of
Forest Service Retirees writes correctly that to not allow the
use of fire retardant in fire suppression would be
unconscionable.
So, I would really like to thank all the witnesses for
taking the time and treasure to come here to Washington, DC to
testify. I am hoping that our Committee and our Subcommittee is
going to be out and around America, not just Washington, DC
here, as we go forward. I know the Chairman of the Full
Committee has expressed that, and we really look forward to
getting out to visit America as we go through this session of
Congress.
Members of the Subcommittee may have some additional
questions for the witnesses, and we will ask you to respond to
those in writing. Under Committee Rule 3, members of the
Subcommittee must submit questions to the Committee Clerk by 5
p.m. on Tuesday, March 28, 2023. The hearing record will be
held open for 10 business days for these responses.
If there is no further business, without objection, the
Subcommittee is adjourned.
[Whereupon, at 4:33 p.m., the Subcommittee was adjourned.]
[ADDITIONAL MATERIALS SUBMITTED FOR THE RECORD]
Submissions for the Record by Rep. Tiffany
WESTERN GOVERNORS' ASSOCIATION
Denver, CO
April 28, 2022
Hon. Deb Haaland, Secretary Hon. Tom Vilsack, Secretary
U.S. Department of the
Interior U.S. Department of Agriculture
1849 C Street NW 1400 Independence Avenue SW
Washington, DC 20240 Washington, DC 20250
Dear Secretaries Haaland and Vilsack:
As we collectively begin the work to responsibly implement
provisions of the Infrastructure Investment and Jobs Act (IIJA, Pub. L.
117-58), Western Governors are concerned about the effect some
procedural rules may have on the ability to expedite project
implementation on public lands. A specific example is the requirement
to reinitiate endangered species consultations of existing management
plans following any new information.
This requirement has the potential to block or delay essential land
management activities, wildlife habitat enhancement, and wildfire fuel
reduction projects on federal lands. If new information triggers re-
initiation of consultation at the project level, the U.S. Forest
Service and Bureau of Land Management should not be required to have
new consultation at the plan level. Forest Plans and Resource
Management Plans should incorporate new information according to the
timelines already established in statute.
Because species considerations are already incorporated at the
project level, this change would neither affect how species are managed
nor how habitat concerns are addressed. It would simply ensure that an
entire Forest Plan or Resource Management Plan is not reopened due to
the site-specific considerations of a local project. Modifying this
requirement would avoid unnecessary and duplicative administrative
processes and expedite other management activities already approved
under Forest Plans and Resource Management Plans.
Western states are eager to increase the pace and scale of
restoration activities on western forests and rangelands, mitigate the
potential effects of uncharacteristic wildfire, and to support fire-
adapted communities in the West. Western Governors stand ready to
assist you in these important endeavors.
Sincerely,
Brad Little Jared Polis
Governor of Idaho Governor of Colorado
Chair, WGA Vice Chair, WGA
______
July 20, 2022
Hon. Joe Manchin Hon. John Barrasso
Chairman Ranking Member
Senate Committee on Energy
& Natural Resources Senate Committee on Energy &
Natural Resources
306 Hart Senate Office
Building 307 Dirksen Senate Office
Building
Washington, DC 20210 Washington, DC 20210
Re: Support for the Bipartisan, Manchin/Daines Substitute Amendment to
S. 2561--``Cottonwood Fix''
Dear Chairman Manchin and Ranking Member Barrasso:
The undersigned conservation organizations, representing millions
of natural resource professionals, sportsmen, and sportswomen are
writing today to request the Senate Committee on Energy and Natural
Resources favorably report the Bipartisan Manchin/Daines, Amendment in
the Nature of a Substitute to S. 2561, the ``Cottonwood Fix''.
Since the Ninth Circuit Court issued the 2015 Cottonwood
Environmental Law Center v. United States Forest Service (Cottonwood)
decision, the Forest Service (USFS) and Bureau of Land Management (BLM)
have been required to reinitiate consultation with the Fish and
Wildlife Service (USFWS) and the National Oceanic and Atmospheric
Administration on Land Management and Forest Management Plans at the
programmatic level when new Endangered Species Act (ESA) information
came to light. This continues to block and slow many essential USFS
forest management, wildlife habitat enhancement and wildfire fuel
reduction projects.
On October 21, 2021, the U.S. Forest Service (USFS) testified
before the Committee that unless action is taken to resolve challenges
stemming from the 2015 Cottonwood decision, the agency will have to go
through re-consultation, regardless of the merit, on over one-hundred
forest plans that ``will take years and cost millions of dollars,''
threatening to undermine the Administration's 10 Year Wildfire Crisis
Strategy.
There has been bipartisan and widespread support for a ``Cottonwood
Fix.'' In May 2016 the Obama Administration petitioned the Supreme
Court to review and overturn the case, and in January 2021 the Trump
Administration initiated a rule to amend Section 7 of the ESA to
address the issue. The Supreme Court rejected the original petition,
and no final rule has been issued.
Congress recognized the critical need to address the Cottonwood
decision when it included a provision in the Consolidated
Appropriations Act of 2018 that adjusted consultation requirements for
the USFS and BLM, but with different instructions to each agency. The
2018 provision was only a partial ``fix'' providing the USFS an
exemption from re-initiation of consultation only for critical habitat
designations and species listings. Regarding BLM, Section 209 of the
2018 Act also provided a partial ``fix'' by exempting only grant lands
under the Coos Bay Wagon Road Reconveyed Lands Act and Oregon and
California Revested Lands Act from re-initiation of reconsultation for
new species listings and critical habitat designations.
When this provision sunsets in March 2023, all forests, including
those outside of the Ninth Circuit, will be subject to this
unjustified, ambiguous procedural requirement. The USFS made clear to
Congress, in testimony before this Committee, the adverse impact this
will have on their ability to manage our forests and make significant
strides to improve forest health.
Delays in forest management projects caused by ``Cottonwood''
litigation are costly and hinder critical forest management activities.
Species listed under ESA are already considered when assessing each
land management project implemented by the USFS. Agencies undergo
review and consultation at the project level where the potential
impacts can be best evaluated. Court rulings requiring reconsultation
at the plan level are duplicative and unnecessary, and injunctions
delay good projects from being implemented in a timely manner.
According to the National Interagency Fire Center, wildfires have
burned nearly 5.5 million acres throughout the U.S. in 2022 and 52
million acres since 2016, with over 65% of the wildfires impacting
federal lands. There is precedent for Congress to address
``Cottonwood'' and action is urgently needed end harmful and
unnecessary delays in federal forest management activities, including
the management work funded by the Bipartisan Infrastructure Investment
and Jobs Act.
Our organizations would like to express our gratitude to Senators
Daines and Manchin for their leadership in addressing this critical
issue and it is with a sense of urgency to adequately manage our
federal forests, that we support and urge the Committee to favorably
report the bipartisan, Senator Manchin/Daines Substitute Amendment to
S. 2561, the ``Cottonwood Fix''.
Sincerely,
American Woodcock Society National Rifle Association
Archery Trade Association National Shooting Sports
Foundation
Association of Fish and
Wildlife Agencies National Wild Turkey Federation
Backcountry Hunters &
Anglers North American Grouse Partnership
Boone & Crockett Club Orion: The Hunter's Institute
California Waterfowl
Association Pheasants Forever
Camp Fire Club of America Pope & Young Club
Congressional Sportsmen's
Foundation Public Lands Foundation
Conservation Force Quail Forever
Council to Advance Hunting
and Shooting Sports Rocky Mountain Elk Foundation
Dallas Safari Club Ruffed Grouse Society
Delta Waterfowl Safari Club International
Ducks Unlimited Sportsmen's Alliance
Houston Safari Club The Wildlife Society
Izaak Walton League of
America Theodore Roosevelt Conservation
Partnership
Mule Deer Foundation Whitetails Unlimited
National Assoc. of Forest
Service Retirees Wild Sheep Foundation
National Bobwhite
Conservation Initiative Wildlife Management Institute
National Deer Association Wildlife Mississippi
______
Hon. Joe Manchin Hon. John Barrasso
Chairman Ranking Member
Senate Committee on Energy
& Natural Resources Senate Committee on Energy &
Natural Resources
306 Hart Senate Office
Building 307 Dirksen Senate Office
Building
Washington, DC 20210 Washington, DC 20210
Re: ``Cottonwood Fix''
Dear Chairman Manchin and Ranking Member Barrasso:
The undersigned conservation organizations, representing millions
of natural resource professionals, sportsmen, and sportswomen are
writing today to request that Congress take immediate action to address
harmful and unnecessary delays in federal forest management activities
caused by the Cottonwood Environmental Law Center v. United States
Forest Service (Cottonwood) decision.
Since 2015 when the Ninth Circuit Court issued the Cottonwood
ruling, the Forest Service (USFS) has been required to reinitiate
consultation with the Fish and Wildlife Service (USFWS), Bureau of Land
Management (BLM), and the National Oceanic and Atmospheric
Administration on Land Management and Forest Management Plans at the
programmatic level when new Endangered Species Act (ESA) information
came to light. This has blocked and slowed many essential USFS forest
management, wildlife habitat enhancement and wildfire fuel reduction
projects.
There has been bipartisan and widespread support for a ``Cottonwood
Fix.'' In May 2016 the Obama administration petitioned the Supreme
Court to review and overturn the case, and in January 2021 the Trump
administration initiated a rule to amend Section 7 of the ESA to
address the issue. The Supreme court rejected the original petition,
and no final rule has been forthcoming from USFWS.
Congress also recognized the critical need to address the
Cottonwood decision when it included a provision in the Consolidated
Appropriations Act of 2018 which adjusted consultation requirements for
the USFS and BLM, but with different instructions to each agency. The
2018 provision was only a partial fix providing the USFS an exemption
from reinitiation of consultation only for critical habitat
designations and species listings and only through March 23, 2023.
Regarding BLM, Section 209 of the 2018 Act also provided a partial
``fix'' by exempting only grant lands under the Coos Bay Wagon Road
Reconveyed Lands Act and Oregon and California Revested Lands Act from
re-initiation of reconsultation for new species listings and critical
habitat designations.
Delays in forest management projects caused by ``Cottonwood''
litigation are costly, duplicative and hinder critical forest
management activities. Species listed under ESA are already considered
when assessing each land management project implemented by the USFS.
Agencies undergo review and consultation at the project level where the
potential impacts can be best evaluated. Court rulings requiring
reconsultation at the plan level are duplicative and unnecessary and
injunctions delay good projects from being implemented in a timely
manner. Current consultation regulations must be clarified to prevent
frivolous lawsuits that seek to block projects that improve habitat for
big game and other wildlife and reduces vulnerability of forests to
catastrophic wildfire, insects and disease.
According to the National Interagency Fire Center, since 2016
wildfires have burned over 46 million acres throughout the United
States, with over 65% of the wildfires impacting federal lands. While a
regulatory ``fix'' may be possible, the federal regulatory process is
cumbersome, time consuming and will lead to additional litigation.
There is precedent for Congress to address ``Cottonwood'' and action is
urgently needed lest the important management work that will
potentially be funded by the Bipartisan Infrastructure Funding bill
will be tied up in courts. It is with a sense of urgency to get this
important work done on the ground that we support and urge
congressional action to provide a ``Cottonwood Fix''.
Sincerely,
American Woodcock Society Orion: The Hunter's Institute
Archery Trade Association Pheasants Forever
Backcountry Hunters and
Anglers Pope & Young Club
Boone & Crockett Club Professional Outfitters and
Guides of America
California Waterfowl
Association Public Lands Foundation
Camp Fire Club of America Quail Forever
Congressional Sportsmen's
Foundation Rocky Mountain Elk Foundation
Conservation Force Ruffed Grouse Society
Delta Waterfowl Safari Club International
Houston Safari Club Sportsmen's Alliance
Mule Deer Foundation The Wildlife Society
National Bobwhite
Conservation Initiative Theodore Roosevelt Conservation
Partnership
National Deer Association Whitetails Unlimited
National Forest Service
Retiree Assoc. Wild Sheep Foundation
National Rifle Association Wildlife Management Institute
National Shooting Sports
Foundation Wildlife Mississippi
National Wild Turkey
Federation
[all]