[House Hearing, 118 Congress]
[From the U.S. Government Publishing Office]
DISCUSSION DRAFT OF H.R. ____, TO EXPEDITE
UNDER THE NATIONAL ENVIRONMENTAL POLICY
ACT OF 1969 AND IMPROVE FOREST MANAGE-
MENT ACTIVITIES ON NATIONAL FOREST SYSTEM
LANDS, ON PUBLIC LANDS UNDER THE JURISDIC-
TION OF THE BUREAU OF LAND MANAGEMENT,
AND ON TRIBAL LANDS TO RETURN RESILIENCE
TO OVERGROWN, FIRE-PRONE FORESTED LANDS,
AND FOR OTHER PURPOSES
=======================================================================
LEGISLATIVE HEARING
BEFORE THE
SUBCOMMITTEE ON FEDERAL LANDS
OF THE
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTEENTH CONGRESS
SECOND SESSION
__________
Wednesday, April 17, 2024
__________
Serial No. 118-111
__________
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
55-446 PDF WASHINGTON : 2025
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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 Wednesday, April 17, 2024........................ 1
Statement of Members:
Tiffany, Hon. Tom, a Representative in Congress from the
State of Wisconsin......................................... 1
Neguse, Hon. Joe, a Representative in Congress from the State
of Colorado................................................ 12
Panel I:
Westerman, Hon. Bruce, a Representative in Congress from the
State of Arkansas.......................................... 3
Peters, Hon. Scott H., a Representative in Congress from the
State of California........................................ 5
Statement of Witnesses:
Panel II:
French, Chris, Deputy Chief, National Forest System, U.S.
Forest Service, Washington, DC............................. 7
Prepared statement of.................................... 9
Panel III:
Downey, Hannah, Policy Director, Property and Environment
Research Center, Bozeman, Montana.......................... 44
Prepared statement of.................................... 45
Parma, Jim, Eastern Fiber Manager, Bell Lumber & Pole,
President, Federal Forest Resource Coalition, New Brighton,
Minnesota.................................................. 53
Prepared statement of.................................... 55
Barrett, Kimiko, Wildfire Research and Policy Lead,
Headwaters Economics, Bozeman, Montana..................... 57
Prepared statement of.................................... 59
Desautel, Cody, President, Intertribal Timber Council,
Executive Director, Confederated Tribes of the Colville
Reservation, Nespelem, Washington.......................... 62
Prepared statement of.................................... 63
Additional Materials Submitted for the Record:
U.S. Department of the Interior, Statement for the Record.... 76
Submissions for the Record by Representative Neguse
The Wilderness Society, Letter to the Committee.......... 14
Multiple Civil Justice Groups, Letter to the Committee... 18
Multiple Environmental Groups, Letter to the Committee... 20
Defenders of Wildlife and Center for Biological
Diversity, Letter to the Committee..................... 24
Submissions for the Record by Representative Peters
Scripps Institution of Oceanography, ``Fine Particulate
Matter from Wildfire Smoke More Harmful than Pollution
from Other Sources,'' March 5, 2021.................... 6
LEGISLATIVE HEARING ON DISCUSSION DRAFT OF H.R. ____, TO EXPEDITE UNDER
THE NATIONAL ENVIRONMENTAL POLICY ACT OF 1969 AND IMPROVE FOREST
MANAGEMENT ACTIVITIES ON NATIONAL FOREST SYSTEM LANDS, ON PUBLIC LANDS
UNDER THE JURISDICTION OF THE BUREAU OF LAND MANAGEMENT, AND ON TRIBAL
LANDS TO RETURN RESILIENCE TO OVERGROWN, FIRE-PRONE FORESTED LANDS, AND
FOR OTHER PURPOSES
----------
Wednesday, April 17, 2024
U.S. House of Representatives
Subcommittee on Federal Lands
Committee on Natural Resources
Washington, DC
----------
The Subcommittee met, pursuant to notice, at 10:01 a.m. in
Room 1324, Longworth House Office Building, Hon. Tom Tiffany
[Chairman of the Subcommittee] presiding.
Present: Representatives Tiffany, Stauber, Curtis, Bentz,
Westerman; Neguse, and Leger Fernandez.
Also present: Representative Peters.
Mr. Tiffany. The Subcommittee on 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 a discussion
draft of forest management legislation brought forward by the
Chairman of the Full Committee, Mr. Westerman.
I ask unanimous consent that the gentleman from California,
Mr. Peters, be allowed to participate in today's hearing from
the dais.
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. Today's draft legislation is the culmination
of the House Committee on Natural Resources efforts this
Congress to advance innovative solutions to increase the pace
and scale of forest management, protect vulnerable communities
from catastrophic wildfire, and restore health and resiliency
to our nation's ailing forests and Federal lands.
Our Committee has dedicated considerable time this Congress
to examining this historical crisis, which has torched millions
of acres, destroyed lives and communities, charred wildlife
habitat beyond repair, and degraded our air and water quality.
We have heard from experts and stakeholders, both here in DC
and at home, and have considered many individual pieces of
legislation that form the basis of the comprehensive solution
before us today.
The overwhelming message that we have heard is that the
removal of active forest management from our forests has caused
this mess, and our present efforts to reverse the awful
trajectory are not working. Despite historic levels of spending
to try to address this crisis, the simple fact remains that not
enough work is being done on the ground at the pace or scale
that is truly needed. We know what needs to be done to fix this
problem, and the important tools provided by this discussion
draft would enable the Forest Service to immediately begin
treatment work on millions of acres of fire-prone Federal
lands.
This legislation will empower streamlined forest management
projects to take place on a landscape scale in the areas at the
highest risk for catastrophic wildfire. Across the country,
over 1 billion acres of land--billion with a B--are at risk of
wildfire. We need to prioritize forest management projects in
the areas with the highest risk to communities and watersheds,
or where the risk of severe fire is so great that there may be
forest conversion. That is exactly what this legislation does.
We have heard time and time again that the Forest Service
doesn't need any new streamlined authorities, and simply needs
to use the tools the agency already has. Again, this bill does
exactly that by mandating the use of streamlined authorities
such as existing categorical exclusions.
The bill also further incentivizes collaboration with state
and tribal governments by removing inflexible requirements that
limit categorical exclusions to a paltry 3,000 acres when those
authorities are used in collaboration with a state governor or
Indian tribe. With more than 117 million acres of Federal lands
at high risk of catastrophic wildfire, we cannot afford to only
be taking 3,000-acre bites of the apple at a time.
I would like to highlight several of my priorities that are
included in this discussion draft.
First, in recognition that the size and scope of this
crisis cannot be tackled alone, this discussion draft includes
several provisions that will encourage coordination and empower
cross-boundary forest management with states, tribes, counties,
and other stakeholders. This includes providing full
partnership to tribes and counties under Good Neighbor
Authority, a very successful forest management tool used in
Wisconsin.
Second, the bill supports the forest products industry by
codifying the 20-year stewardship contracting, and raising the
minimum threshold for advertising competitive timber sales.
Since 2000, over 1,500 sawmills have closed or significantly
curtailed operations across the country. In western states with
large footprints of Federal land, the lack of reliable timber
coming from Federal forests is consistently cited as a reason
for these closures and curtailments.
Just a few days ago, another sawmill operating in South
Dakota announced 50 workers would be laid off as a direct
result of reductions to the Black Hills National Forest timber
sale program. We know from experience that once we lose a mill,
that infrastructure is gone. That locks us into a vicious cycle
where Federal forests go unmanaged and catastrophic wildfires
are allowed to wreak absolute havoc on these landscapes.
Don't take my word for it. Just last week, Forest Service
Chief Randy Moore told the Senate Appropriations Committee
during a budget hearing that, ``I can tell you with certainty
if we do not have a vibrant timber industry we are not going to
be able to manage our forests and make them healthy and
resilient.''
Third, this bill also addresses obstructionist litigation
which remains a major hindrance to active forest management
efforts. In the last decade, lawsuits seeking to block forest
management projects have tied up roughly 1.8 billion board feet
of timber. This proposal includes a permanent fix to the
disastrous Cottonwood Decision, which has been one of the most
common sources of litigation blocking forest management.
Finally, this discussion draft will foster greater
transparency and accountability from our Federal land managers.
I am pleased that my legislation, the ACRES Act, is included in
this bill. This provision will require land managers to produce
yearly hazardous fuels reduction reports based on the actual
number of acres that they treated over the past year, without
double counting any acreage.
I want to thank all the witnesses for being here.
And I am now going to recognize the Chairman of the Full
Committee, Mr. Westerman, for his opening statement.
STATEMENT OF THE HON. BRUCE WESTERMAN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ARKANSAS
Mr. Westerman. Thank you, Chairman Tiffany, and thank you,
Mr. French, for being here today. We look forward to the
testimony.
This is obviously a very important issue to me when we
consider this discussion draft of a comprehensive forest
management bill. And I will tell you, this is not just
something that came up recently. It is a product of years of
work that included site visits, working with Members across the
aisle, Members on and off this Committee and even utilizing
recommendations from the bipartisan Wildland Fire Commission
report.
For some reason, forests over time have become a divisive
issue in our country. And I have always said that forests
should be the least divisive thing that we talk about.
Everybody benefits from a healthy forest. We know that we get
clean air, we get clean water, we get wildlife habitat, we get
places to recreate. And there are so many positive things about
a forest that it is almost a bit heartbreaking that it has
become a divisive issue in Congress. It is something we should
all work towards.
Last year, we took a little bipartisan trip up to New
Haven, Connecticut. Republicans, Democrats, folks from the
Forest Service got on a train here in DC and went to
Connecticut, and we visited the Yale School Forest, which I
would contend is the oldest managed forest with records on it
in the country. Gifford Pinchot founded the Yale School of
Forestry, and this, I think, 8,000 to 10,000-acre forest up in
northeast Connecticut is a model for what good forest
management looks like.
And some of the feedback I got after the trip was how
complicated it was for the Yale folks to manage this forest,
and the only thing they had to worry about was the science. How
do we do the management? And it was still a challenge to keep
invasive species out, to restore forest health, and all they
were dealing with was employing the basic best science
practices.
So, you take those challenges and you put them on public
lands, and you cover that with a lot of bureaucracy and a lot
of outside influences, and it becomes a very difficult job to
take care of these Federal lands that I think we all cherish.
And I want to say how much I appreciate folks in the Forest
Service who just want to do their work, they want to be able to
go out and manage, they want to have healthy forests. And I
have had a great relationship with the Forest Service on the
two national forests in my district, the Ouachita and the
Ozark, and they have done some very innovative things.
On the trip to Connecticut last year, we had Homer Wilkes,
we had Troy Heithecker, who came off of the Ouachita National
Forest, and I think it was great for us just to get out and see
the forest. And that is what happens when you do that, people
realize this shouldn't be a divisive issue. We have had other
trips across the country.
I am glad that my friend, Scott Peters, is here today. He
has been a strong voice and a leader on the Save Our Sequoias
Act, which came about by taking a trip out to Sequoia National
Park and seeing the devastation that happened in just a 2- or
3-year period where we lost about 20 percent of the only giant
sequoias on the planet that grow in the western slopes of the
Sierra Nevadas.
And because of catastrophic wildfire, we lost about 20
percent of those trees, and a tree that we should never lose to
wildfire. These trees were built for fire. But if you suppress
fire long enough, and the white fir and the pines grow up in
the tips of them, get up into the lower canopy of the sequoias
and the fire comes through, that is classic ladder fuel, and it
actually wiped out groves of sequoias that had survived
hundreds, if not thousands of fires in their lifetime.
We can do better than that, and that is the purpose of this
legislation. It is simply to give the Forest Service and
Federal land managers the tools to go out and do the work
without all the impediments that they face as they try to do
the work under the current conditions. It is about developing
new markets. We have a biochar demonstration project language
in here.
If we don't manage, if we don't have markets to put this
material into, if they could go out and manage, the first thing
they would ask us is, what do we do with all this low-value
material that is coming off the forest? You know, pre-European
settlement, the West had about 64 trees per acre and now there
are over 300 trees per acre. You can't get to 64 trees per acre
overnight, and these are obviously bigger trees, but we can do
a lot better than the overstock stands that we have.
I could say a lot more, and I will throughout the hearing,
but I want to yield time to the gentleman from California, Mr.
Peters, for any opening statement he may have.
STATEMENT OF THE HON. SCOTT H. PETERS, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Peters. Thank you so much, Chairman Tiffany and
Chairman Westerman, for allowing me to participate today, and
my colleagues for not objecting. Thank you.
[Laughter.]
Mr. Peters. I am here because catastrophic wildfires driven
by decades of poor land management and a warming planet are now
the single largest source of particulate pollution in the
United States, creating more than 40 percent of the nation's
fine particulate matter air pollution.
And in the year 2020, California wildfires released more
CO2 than the state's entire power sector. Wildfire
smoke is more harmful to human health, compared to other
pollution sources, and tens of millions of Americans are at
risk of experiencing high levels of exposure. Vulnerable
populations like infants, the elderly, and people with pre-
existing health conditions, such as respiratory or
cardiovascular disease, are at higher risk of negative health
effects from wildfire smoke, and extreme smoke events are
already increasing emergency room visits at hospitals.
While my home state of California had a relatively quiet
2023 fire season, it follows the worst 2 years of wildfire on
record, where 19,000 square kilometers of forest burned. That
is 10 times the historical average because we don't have
natural fires anymore, we have catastrophes. Fires have become
more intense, frequent, and widespread. They are endangering
communities, watersheds, and ecosystems across the West.
We have to do better. We have to do something different.
So, I just am so thankful that Mr. Westerman has presented this
discussion draft as an encouraging way to start to tackle the
problem, and I appreciate the Chairman's interest in taking
feedback, hearing from those that have concerns, and working to
craft the best product possible.
But I encourage all those listening today to tell us how we
can make the bill better. It doesn't help to just say you don't
like it but we are not going to do anything, because current
conditions are intolerable. I am not on this Committee, but I
made my way down here, I made some time on this because this is
an environmental catastrophe, and we can't just do the same
thing.
So, this discussion that we are starting off today is
absolutely essential. If you don't like what is in the bill, if
you could help us make it better, let's do that. We have to
preserve American ecosystems. We all have a responsibility to
work together in a constructive way. There is nothing
inherently about forests that has to be partisan, and that is
why I like working with Bruce Westerman, as we did on sequoias.
Mr. Chair, before I yield I would like to enter into the
record, without objection, a 2021 study from the Scripps
Institution of Oceanography in my district, entitled, ``Fine
Particulate Matter from Wildfire Smoke More Harmful than
Pollution from Other Sources.''
And with that I look forward to working with my colleagues
on both sides of the aisle across all the Committees of
jurisdiction. But again, to see if we can't make some progress
on this, save our ecosystems, and save some lives.
I yield back.
Mr. Tiffany. Without objection, so ordered.
[The information follows:]
FINE PARTICULATE MATTER FROM WILDFIRE SMOKE MORE HARMFUL THAN POLLUTION
FROM OTHER SOURCES
Researchers call for revisions to air-quality monitoring guidelines to
consider the sources of emissions
Scripps Institution of Oceanography, March 5, 2021 by Robert Monroe
https://scripps.ucsd.edu/news/fine-particulate-matter-wildfire-smoke-
more-harmful-pollution-other-sources
*****
Researchers at Scripps Institution of Oceanography at UC San Diego
examining 14 years of hospital admissions data conclude that the fine
particles in wildfire smoke can be several times more harmful to human
respiratory health than particulate matter from other sources such as
car exhaust. While this distinction has been previously identified in
laboratory experiments, the new study confirms it at the population
level.
This new research work, focused on Southern California, reveals the
risks of tiny airborne particles with diameters of up to 2.5 microns,
about one-twentieth that of a human hair. These particles--termed
PM2.5--are the main component of wildfire smoke and can
penetrate the human respiratory tract, enter the bloodstream and impair
vital organs.
The study appears March 5 in the journal Nature Communications by
researchers from Scripps Institution of Oceanography and the Herbert
Wertheim School of Public Health and Human Longevity Science at UC San
Diego. It was funded by the University of California Office of the
President, the National Oceanic and Atmospheric Administration (NOAA),
the Alzheimer's Disease Resource Center for Advancing Minority Aging
Research at UC San Diego and the Office of Environmental Health Hazard
Assessment.
To isolate wildfire-produced PM2.5 from other sources of
particulate pollution, the researchers defined exposure to wildfire
PM2.5 as exposure to strong Santa Ana winds with fire
upwind. A second measure of exposure involved smoke plume data from
NOAA's Hazard Mapping System.
A 10 microgram-per-cubic meter increase in PM2.5 attributed
to sources other than wildfire smoke was estimated to increase
respiratory hospital admissions by 1 percent. The same increase, when
attributed to wildfire smoke, caused between a 1.3 to 10 percent
increase in respiratory admissions.
Corresponding author Rosana Aguilera said the research suggests that
assuming all particles of a certain size are equally toxic may be
inaccurate and that the effects of wildfires--even at a distance--
represent a pressing human health concern.
``There is a daily threshold for the amount of PM2.5 in the
air that is considered acceptable by the county and the Environmental
Protection Agency (EPA),'' said Aguilera, a postdoctoral scholar at
Scripps Institution of Oceanography. ``The problem with this standard
is that it doesn't account for different sources of emission of
PM2.5.''
As of now, there is not a consensus as to why wildfire PM2.5
is more harmful to humans than other sources of particulate pollution.
If PM2.5 from wildfires is more dangerous to human lungs
than that of ambient air pollution, the threshold for what are
considered safe levels of PM2.5 should reflect the source of
the particles, especially during the expanding wildfire season. This is
especially relevant in California and other regions where most
PM2.5 is expected to come from wildfires.
In Southern California, the Santa Ana winds drive the most severe
wildfires and tend to blow wildfire smoke towards populated coastal
regions. Climate change delays the start of the region's rainy season,
which pushes wildfire season closer to the peak of the Santa Ana winds
in early winter. Additionally, as populations grow in wildland urban
interface areas, the risks of ignitions and impacts of wildfire and
smoke increase for those who live inland and downwind.
Coauthor Tom Corringham points to the implications for climate change:
``As conditions in Southern California become hotter and drier, we
expect to see increased wildfire activity. This study demonstrates that
the harm due to wildfire smoke may be greater than previously thought,
bolstering the argument for early wildfire detection systems and
efforts to mitigate climate change.''
______
Mr. Westerman. Thank you, Mr. Chairman. I yield back the
balance of my time.
Mr. Tiffany. Thank you for your opening comments, Mr.
Chairman, and we are going to move on to our second panel.
Let me remind our witness that per Committee Rules, you
must limit your oral statement to 5 minutes, but your entire
statement will appear in the hearing record.
To begin your testimony, please press the ``on'' button on
the microphone.
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 would like to introduce Mr. Chris French, Deputy Chief of
the National Forest System at the U.S. Forest Service.
Deputy Chief French, it is good to have you back before the
Committee. You have 5 minutes.
STATEMENT OF CHRIS FRENCH, DEPUTY CHIEF, NATIONAL FOREST
SYSTEM, U.S. FOREST SERVICE, WASHINGTON, DC
Mr. French. Thank you, Chairman and Chairman. I appreciate
the time to be here today. My name is Chris French. I am the
Deputy Chief of the National Forest System at the U.S. Forest
Service.
I really appreciate the space to have to talk on this
discussion draft today because these issues, the long-term
sustainability of our forests and reducing the risk that those
forests create through wildfire to our communities, is our
central focus right now. These are at the front and center of
all of our leadership, our foresters, our biologists, our other
resource management professionals as they focus on how do you
create long-term sustainability of our forests that are
resilient and that are not as susceptible to wildfire, insects,
disease, and the other stressors we are seeing being brought on
by climate change right now.
In my 32 years of working for the Forest Service in
multiple disciplines, I have not seen us at such an important
inflection point in terms of the health and the long-term
sustainability of these forests and the communities that depend
on them, whether it is for water, for jobs, or just having a
place where they don't feel threatened by the very forests that
surround them.
Our national forests and grasslands span 193 million acres
in 42 states and Puerto Rico. They are lands where people
recreate, fish, hunt, and hike. They provide clean water,
support livestock grazing, mineral and energy development, and
forest products. They are an important touchstone for
Indigenous people, and our multiple use management supports
local economies throughout the country.
All told, our work creates hundreds of thousands of jobs
and contributes nearly $44 billion to our nation's gross
domestic product. This includes uses from livestock grazing,
forest products, mineral and energy development, and probably
most significantly through recreation. However, as we all know,
the forests that provide all of these benefits are at risk from
the wildfire crisis we now face. Fueled by our changing
climate, fire exclusion, insect and disease outbreaks, and
expanding urbanization we are experiencing rapidly shifting
environmental conditions and longer, hotter, and drier wildfire
seasons.
To address these challenges, the Forest Service is
implementing our wildfire crisis strategy to reduce the risk of
catastrophic fire threatening our communities and forests. We
are seeing real results. And as the Chief testified earlier
this week, we are seeing decreases in risk to communities and
large returns on our investments. We are focused on forest
restoration and resilience of those forests and communities.
In short, we know that we must do the right work where it
matters the most with our partners in the industries that we
work with.
The draft bill that we are going to discuss here today
represents a good opportunity for Congress to advance the
dialog on supporting sound forest management and wildfire risk
reduction, and to build on support previously provided through
efforts such as the Bipartisan Infrastructure Law, the
Inflation Reduction Act, the Healthy Forest Restoration Act,
and several farm bills.
With certain exceptions, the United States Department of
Agriculture has previously testified before this Subcommittee
and its counterpart in the Senate in support of the goals and
intent of several provisions that are in this draft bill. There
are certain provisions, especially those related to
environmental compliance, where the Administration looks
forward to the opportunity to work with the Committee to
understand the intent and the implications of the language. And
USDA does not support the provision that would require the
Forest Service to attempt to extinguish all fires within 24
hours of detection.
We appreciate the Committee's engagement in these important
issues affecting the long-term health and sustainability of our
nation's forests and communities. It is worth us working
together. It is worth us coming to agreement, problem-solving,
because we have common goals. We look forward to that
discussion, and we look forward to this Committee's continued
support for our forests and the communities in the long run.
I would be happy to take questions. Thank you.
[The prepared statement of Mr. French follows:]
Prepared Statement of Chris French, Deputy Chief, National Forest
System, U.S. Department of Agriculture--Forest Service
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), Forest Service, regarding
various Federal land management bills.
USDA has previously testified on several bills with language
similar or identical to the provisions in this discussion draft. While
we are continuing to analyze the discussion draft for additional
feedback, we welcome the opportunity to engage with the Committee on
these issues of mutual interest and to share our appreciation for your
continued support of the mission of the Forest Service.
The Forest Service cares for the nation's forests and grasslands
for the benefit of all people. The agency manages 154 national forests,
20 national grasslands, and 1 tallgrass prairie to sustain both healthy
landscapes and prosperous rural communities. The agency's top priority
is to maintain and improve the health, diversity, and productivity of
the nation's forests and grasslands to meet the needs of current and
future generations.
The agency's forest management focuses on restoring ecosystems,
reducing wildland fire risk, maintaining forest health, and supplying
sustainable forest products. Our management ensures that our national
forests and grasslands are conserved, restored, and made more resilient
to climate change. Healthy, resilient forests are crucial to ensure
that the American public continues to have clean water and air,
wildlife habitat, and recreational opportunities.
Several of the provisions in this bill relate directly to the
Forest Service's approach to wildland fire response. Our priority is to
protect the health, safety and well-being of the fire management
community and the public we serve. Federal agencies, Tribal nations,
State and local partners, private industry, and volunteers stand
together, ready to respond to wildfires again this year.
Where wildfires threaten lives, communities, and homes, we will
actively use all available strategies and tools to suppress those fires
and their growth. Our focus is on making sound, science-based, risk-
informed decisions.
Providing critical wildfire response is essential to protect
communities from exceedingly large fires that display extreme fire
behavior. We are witnessing unprecedented wildfire behavior, fueled by
overly dense forests and disrupted fire regimes, amplified by severe
drought, climate change and extreme weather. Risk from these conditions
is increased by continued development in and around forests. Fighting
fire in these conditions means we need to make strategic, risk-based,
and often difficult decisions about where and how to deploy
firefighters and aviation assets safely.
The Forest Service's Wildfire Crisis Strategy, launched in 2022,
combines an historic investment of Congressional funding in fire
science research with community wildfire risk planning in an
unprecedented effort to confront the nation's growing wildfire crisis.
Leveraging contributions from States, Tribes, local governments, and
partners, the Strategy dramatically increases the scale and pace of
forest health treatments focused on the highest risk areas in the
country. As part of this effort, 21 priority landscapes within high-
risk firesheds have been identified; our work in these areas is
mitigating wildfire risk for around 550 communities in the western
United States.
We offer the views below on behalf of USDA regarding the fire- and
forest management-related legislation being considered before the
Subcommittee today, and we defer to DOI on those provisions that relate
to DOI-administered lands.
Discussion Draft Summary
The discussion draft of H.R. ____ aims to ``improve forest
management activities on National Forest System lands, on public lands
under the jurisdiction of the Bureau of Land Management, and on Tribal
lands'' through a variety of new programs and amendments to existing
authorities. The draft bill compiles several separate bills related to
wildfire risks, forest health, collaborative forest management, and
other provisions included in the following titles.
TITLE I--LANDSCAPE-SCALE RESTORATION
Subtitle A--Addressing Emergency Wildfire Risks in High Priority
Firesheds
Subtitle A would provide for the designation of certain areas as
fireshed management areas, provide for a publicly accessible Fireshed
Registry including interactive geospatial data, and establish an
interagency Fireshed Center. This subtitle would also direct the
Secretary of Agriculture and the Secretary of the Interior
(``Secretaries'') to carry out fireshed management projects in
designated fireshed management areas and enter into a shared
stewardship agreement with a Governor within 90 days of receiving a
request from the Governor.
Subtitle B--Expanding Collaborative Tools to Reduce Wildfire Risk and
Improve Forest Health
Subtitle B would require that Tribes and counties (in addition to
States) retain receipts under a good neighbor agreement and would allow
the retained receipts to be used for restoration services on Federal or
non-Federal land. Subtitle B would also extend the maximum term for
agreements and contracts executed under the Stewardship End Result
Contracting Projects authority from 10 years to 20 years and would
direct the Chief to pay a 10 percent cancellation or termination cost
for any long-term agreements or contracts that are canceled or
terminated. Further, this subtitle would direct the Secretaries to
jointly establish intra-agency strike teams to address NEPA reviews,
consultations under the National Historic Preservation Act and under
the Endangered Species Act, site preparation work, and implementation
of fireshed management projects. This subtitle would raise the
threshold at which timber sales must be advertised from a sale value of
$10,000 to $55,000. The subtitle would also direct the Secretary of
Agriculture to increase this threshold annually based on the Consumer
Price Index of All Urban Consumers published by the Department of
Labor.
Subtitle C--Addressing Frivolous Litigation
Subtitle C would prohibit a court from enjoining fireshed
management projects under this bill if the court determines that the
plaintiff's claim is unlikely to succeed on the merits. This subtitle
also pertains to Endangered Species Act (ESA) consultation, stating
that the agency is not required to reinitiate consultation under the
ESA on a land management plan when a new species is listed, critical
habitat is designated, or new information becomes available. Further,
Subtitle C would establish a discretionary arbitration pilot program as
an alternative dispute resolution process for objections to forest
management activities undertaken pursuant to the Act.
Title II: Protecting Communities in the Wildland-Urban Interface
The second title of the draft bill would establish an interagency
program to support coordination in reducing the risk of fires in the
wildland-urban interface. This title would also require the Forest
Service to use all available resources to extinguish wildfires within
24 hours of detection on National Forest System lands. This title would
also establish a program for the purpose of testing and advancing
innovative designs to create wildfire resistant structures and
communities. Additionally, this title would amend the Federal Lands
Policy and Management Act of 1976 by increasing the required right-of-
way for certain electric transmission and distribution facilities.
Further, this title would establish a statutory categorical exclusion
for certain electric utility line rights-of-way and related matters
under the National Environmental Policy Act, as well as declaring these
activities exempt from ESA and the National Historic Preservation Act
consultation requirements and any other applicable law. Finally, this
title would require the development of an interagency strategy to
enhance the domestic supply chain of seeds.
Title III: Transparency and Technology
The third title of the draft bill would establish a program for
certain Federal agencies to enter into partnerships to carry out
demonstration projects to support the development and commercialization
of biochar. The title would also require Federal agencies to publish an
annual report on the number of acres on which hazardous fuels
activities were carried out in the previous year. Additionally, this
title would establish a testbed pilot program for new and innovative
wildfire prevention, detection, communication, and mitigation
technologies. Further, this title would require the Government
Accountability Office to conduct a study evaluating the effectiveness
of Forest Service wildland firefighting operations and the suitability
and feasibility of establishing a new Federal agency with
responsibility for responding to and suppressing wildland fire on
Federal lands. Finally, this title would require the Forest Service to
study potential locations for a western headquarters for the agency.
Views
USDA has previously testified before this Subcommittee and the
Senate Energy and Natural Resources Committee on several of the
provisions of the discussion draft of H.R. ____ and appreciates the
interest from the Committee in working with the Forest Service to
address concerns previously identified in testimony, as well as areas
identified in new provisions of the draft bill that would benefit from
further analysis and discussion.
While we would appreciate the opportunity to continue working with
the Committee to analyze this discussion draft and provide feedback, we
would like to take the opportunity to note some of the positions and
feedback that we have provided in previous testimony or technical
assistance.
USDA supports expanding the authority to retain receipts to Tribes
and counties as proposed in Section 111. This authority would
significantly increase county and Tribal participation in agreements
executed under the Good Neighbor Authority, which would help us carry
out needed forest management activities. The ability to use this
revenue on non-Federal land would facilitate important cross-boundary
restoration treatments.
On a number of provisions, USDA supports the intent of the language
but would appreciate the opportunity to continue working with the
committee to ensure workable implementation of the bill language. USDA
supports the extension of a maximum term of agreements and contracts
executed under the Stewardship End Results Contracting Projects
authority as proposed in Section 112. USDA also supports raising the
threshold at which timber sales must be advertised from a sale value of
$10,000 to $55,000 as proposed in Section 114. USDA supports the intent
of establishing interagency strike teams as proposed in section 113.
For all these sections, however, we would like to continue to work with
the Committee to address concerns and provide technical assistance to
ensure workable implementation of the bill language.
USDA would like to work with the Committee to better understand the
intent of several provisions related to implementing the National
Environmental Policy Act, judicial review, and a pilot arbitration
program to help the Committee meet its intent and ensure any agency
concerns are addressed.
Section 122 exempts the Forest Service from reinitiating ESA
consultation with the U.S. Fish and Wildlife Service and National
Marine Fisheries Service (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.
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 towards 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.
Section 302 would establish a requirement for Federal agencies to
publish an annual report on the number of acres on which hazardous
fuels activities were carried out. The agency strives to improve its
metrics in order to provide transparency and accountability for each
dollar the agency receives to reduce wildfire risk and to accurately
describe the outcomes from program implementation. The agency has a
complex set of metrics for the work performed in the hazardous fuels
program to reduce wildfire risk, restore and maintain fire adaptive
ecosystems, and improve forest health. Currently the agency reports the
number of acres invested in for treatment, the number of acres where
treated has been implemented and the number of acres treated to
maintain a desired condition. We continue to learn the best ways to
incorporate outcome-based performance metrics into our programs using
the best available science. We are working hard to prototype new
outcome-based metrics. The agency currently has sufficient data, and we
are working to incorporate those data into our science-based models.
USDA would like to work with the Committee to better understand the
intent of section 302.
Section 202 would require the Forest Service to use all available
resources to carry out wildfire suppression with the purpose of
extinguishing wildfires detected on National Forest System lands no
later than 24 hours after they are detected. The agency has serious
concerns that this language would remove critical resource management
and firefighting tools and tactics from interagency responders who have
to make life and death decisions. In addition, the agency has a history
associated with a policy that required all fires be suppressed by 10am
the next morning following detection. This policy had a direct result
in the removal of fire from ecosystems which increased the number of
trees and fuels in those ecosystems. The increase in fuels increased
fire intensity and severity which increased fire risk to communities.
Therefore, we cannot support this section.
The agency must continue to use every tool available, including the
use of managed fire in certain circumstances, to reduce current and
future adverse impacts from wildfire, consistent with agency policy and
interagency response. Under Forest Service policy, every fire receives
a strategic, risk-based response that is appropriate for the
circumstances and the associated threats and opportunities. Each
strategy uses the full spectrum of management actions that are tailored
to fire and fuel conditions, weather, values at risk, and resource
availability.
USDA looks forward to further reviewing the draft bill to better
understand how these issues have been addressed, as well as to analyze
the full implications of new provisions. As we continue this review, we
would appreciate the opportunity to provide additional recommendations
and comments, including technical amendments, before the Committee
moves forward with this legislation.
Conclusion
Thank you for the opportunity to testify on the draft bill. USDA
looks forward to continued work with the Committee and bill sponsors as
they further develop the legislation.
______
Mr. Westerman [presiding]. Thank you, Deputy Chief French.
Before we go to questions I want to give the Ranking Member
of the Subcommittee, Mr. Neguse, an opportunity for an opening
statement.
STATEMENT OF THE HON. JOE NEGUSE, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF COLORADO
Mr. Neguse. Thank you, Mr. Chairman, for your indulgence.
Today's hearing gives our Subcommittee another opportunity
to continue the critical discussion about our national response
to the wildfire crisis.
As we know well, back in my district, just by way of
example, in Colorado, climate change is leading to longer and
more severe fire seasons, and we must respond accordingly. That
is exactly why House Democrats took significant steps in the
117th Congress to secure historic investments for the Forest
Service and the Department of the Interior through the
Bipartisan Infrastructure Law. And I thank the Deputy Secretary
for his testimony and for being here today.
Specifically, we provided $28 billion to the Department of
the Interior and $5.5 billion to the Forest Service to address
drought, fire management, forest and landscape resilience, and
preservation for increasing extreme weather events.
We delivered further with the Inflation Reduction Act,
which provided $2.5 billion for ecosystem resilience and
restoration, as well as a $500 million allocation for wildfire
management and workforce needs. These historic investments
allowed the Biden administration to develop and implement the
National Cohesive Wildland Fire Management Strategy, leading to
record-high restoration treatments designed to promote
resilient landscapes and safe communities.
Another key accomplishment was the establishment of the
Wildland Fire Mitigation and Management Commission, which at
the end of the last year released their final report that
includes a whopping 148 consensus recommendations. I want to
thank the Commission for appearing before the bipartisan
Wildfire Caucus, of which I serve as a co-Chair. We are lucky
enough, I understand, to have two members of the Commission who
are testifying today, and I certainly want to thank all of the
members of the Commission for their time and their continued
efforts to advance and advocate for comprehensive wildland fire
response and pre-fire preparedness.
We have a lot of work to do, as we are now challenged to
translate those recommendations from the Commission into
action. Fortunately, several bills that have been sponsored by
members of this body align with the recommendations advanced by
the Commission. I introduced with a number of my colleagues a
bipartisan, bicameral Joint Chiefs Reauthorization Act, as well
as the Collaborative Forest Landscape Restoration Program
Reauthorization Act, both of which I think are important steps
forward for restoration efforts.
I hope the Chairman will consider including those bills
among many others within the discussion draft that he has
released and that we are considering today. There are a number
of other consensus-driven bills that I think merit some
consideration by this Committee, both as stand-alone measures
and, of course, with respect to the bill that we are
considering from the Chairman.
Before getting into the details of the discussion draft, I
do just want to say I appreciate the Chairman's interest and
his lifetime focus on forestry and wildfire. I know it is an
issue that is near and dear to the Chairman, as the only
registered forester in the U.S. Congress. And while we may not
see eye to eye on every provision of his discussion draft, it
is encouraging, I think, to see some new and revamped pieces of
the bill that sync up with several of the recommendations made
by the Wildfire Commission. Just by way of example, the
establishment of a fire environment center, or Fireshed Center,
as it is called in the Chairman's bill, is in line with several
consensus recommendations of the report. The focus on community
wildfire risk reduction has the potential to build on the
Community Wildfire Risk Reduction Grant program that we
established last Congress.
Now, we do have concerns, and there have been a variety of
concerns articulated by different organizations. I will ask
unanimous consent at the conclusion of my remarks to enter
their letters into the record, and I look forward to the robust
discussion that we are going to have today.
I think that this issue has to be approached in a
bipartisan way because it is a bipartisan priority. So,
certainly the Chairman has my commitment, as the Ranking
Member, to work in good faith, and I know that he shares that
same commitment.
The last thing I will say, I mentioned at the top of my
remarks, but I am grateful to the Forest Service. You all are
doing tremendous work. Because of the investments that House
Democrats made in the last several Congresses, I should say
with the leadership of my colleague, Mr. Peters, who has waived
on to the Committee today and who has been a national leader in
this space, the Forest Service has achieved annual records for
hazardous fuels reduction and prescribed burning. And, again,
that is because of the investments that were made in the
Inflation Reduction Act.
I see that I am at the conclusion of my time. Again, I
thank the Chairman for holding this important hearing, and I
look forward to the testimony and the questions.
I yield back.
Mr. Westerman. I thank the Ranking Member and, without
objection, we will accept your submission to the record.
[The information follows:]
THE WILDERNESS SOCIETY
April 17, 2024
Hon. Tom Tiffany, Chairman
Hon. Joe Neguse, Ranking Member
House Committee on Natural Resources
Subcommittee on Federal Lands
1324 Longworth House Office Building
Washington, DC 20515
Dear Chairman Tiffany, Ranking Member Neguse, and Members of the
Federal Lands Subcommittee:
On behalf of our more than one million members and supporters, The
Wilderness Society (TWS) writes to express views on Chairman
Westerman's discussion draft, ``A bill to expedite under the National
Environmental Policy Act of 1969 and improve forest management
activities on National Forest System lands, on public lands under the
jurisdiction of the Bureau of Land Management, and on Tribal lands to
return resilience to overgrown, fire-prone forested lands, and for
other purposes,'' being heard before the Subcommittee on April 17,
2024. We respectfully request that this letter be included in the
hearing record.
TWS supports many of the goals of Chairman Westerman's discussion
draft. We recognize the enormous amount of work necessary to restore
our forests to a healthy and resilient state, and we welcome the chance
to be part of these discussions. TWS also has significant concerns
about some of the bill's provisions, such as ones that weaken bedrock
environmental laws and limit judicial review. Below are suggestions for
specific sections of the bill.
Section 2 defines ``hazardous fuels management'' as ``any
vegetation management activities that reduce the risk of wildfire,
including mechanical thinning, mastication, prescribed burning,
cultural burning, timber harvest, and grazing.'' TWS suggests changing
the phrase ``reduce the risk of wildfire'' to ``reduce the risk of
uncharacteristically severe wildfire.'' This change will make it clear
that Congress recognizes wildfire as an essential, beneficial, and
natural part of the landscape, which is supported by both western fire
science and long-held Indigenous Knowledge. We also recommend adding
wildland fire use to the list of included vegetation management
activities.
Title 1
Section 101 establishes the designation of fireshed management
areas. As written in the draft bill, the designation of firesheds may
cover more than 350 million acres (the Wildfire Crisis Strategy
identified 250 high risk firesheds, and the 2019 Rocky Mountain
Research Station identified 7,688 firesheds. 20 percent of these 7,688
firesheds comes to 1,538 firesheds, and with an average size of 250,380
acres per fireshed, the total acres encompassed by Section 101(a)(1)(A-
B) equals 385 million acres). We are concerned that legislatively
designating an area of that magnitude will hamper the agencies' ability
to prioritize. Additionally, one criterion for identifying firesheds in
the top 20 percent for wildfire exposure is ``wildfire exposure to
municipal watersheds.'' In this instance, TWS recommends quantifying
the risk to watersheds, as opposed to just using exposure as the sole
metric. For example, it is possible for an area to have high exposure,
but that exposure is low risk. This is an issue we recommend addressing
throughout the bill.
Section 103 of the discussion draft calls for the creation of a
publicly available Fireshed Registry, which will include data on
wildfire exposure, past forest management treatments, planned forest
management treatments, status of permits and authorizations, project
costs, and more. We believe increasing transparency in the project
development and permitting processes and creating a one-stop-shop for
information on individual firesheds will be beneficial to the many
stakeholders who are involved in or impacted by wildfire and management
activities designed to mitigate risk.
Section 104 directs the Administration to enter into shared
stewardship agreements with state Governors who request it. The main
concern we have with the wording in this section is the use of
``shall,'' which mandates that the Secretary concerned enter into a
shared stewardship agreement. The use of a mandate in this instance
will allow state governments to unilaterally dictate all terms of such
an agreement. To avoid this imbalance, we recommend changing ``shall''
in Section 104(a) to ``shall seek to.''
Section 105 establishes Fireshed Assessments, which are to be
jointly created by the relevant federal agency and Governor of each
respective state. These Assessments will identify within each fireshed
management area wildfire exposure risks, at-risk communities, and
potential management projects to mitigate risks. The legislation
further prioritizes potential management projects based on their
ability to reduce exposure to communities, reduce exposure to municipal
watersheds, reduce risk of forest type conversion, and protect critical
infrastructure and wildlife habitat.
TWS supports the creation of Fireshed Assessments and corresponding
prioritization of management projects. The type of coordination between
federal, Tribal, state, and local governments called for in this
section is necessary to create comprehensive plans that can tackle the
large task of improving the health and resilience of our forests.
As currently written, the Fireshed Assessments are heavily weighted
towards hazardous fuels management. One area of improvement we see is
to rework the prioritization to place more emphasis and prioritization
on mitigation in the built environment because this will have the
greatest impact on protecting and reducing risk for communities and
critical infrastructure. Given the important role state Governors will
play in the development of Fireshed Assessments, it seems increasingly
appropriate to focus resources and attention on the built environment,
as opposed to wildlands, where the risk is lower. As the recent
Wildfire Commission report stated, ``it is important to note that focus
on the natural environment alone is unlikely to fully reduce wildfire-
related loss (Calkin et al., 2013; Cohen, 2008; Mortiz et al., 2014.)
There is a critical need to also focus actions within the built
environment.'' \1\
---------------------------------------------------------------------------
\1\ ON FIRE: The Report of the Wildland Fire Mitigation and
Management Commission, Sept 2023, Page 33. https://www.usda.gov/sites/
default/files/documents/wfmmc-final-report-09-2023.pdf
---------------------------------------------------------------------------
TWS has several concerns with Section 106, which states, among
other provisions, that agencies shall carry out fireshed management
projects, that these projects are categorically excluded from the
National Environmental Policy Act (NEPA) environmental assessment and
environmental impact statement requirements, and that acreage
limitations contained in the Healthy Forests Restoration Act (HFRA) and
Infrastructure Investment and Jobs Act (IIJA) do not apply to fireshed
management projects.
While we agree with the desire to expedite the necessary work that
must be done on our national forests, these management projects have
the potential to be very large, with significant impacts on the
landscape. A thorough NEPA analysis will ensure that any impacts to the
ecosystem and local communities are considered and that community
involvement and buy-in are prioritized. We know NEPA is not the cause
of permitting delays, and while certain lawsuits may gather press and
attention, very few NEPA decisions are litigated. To be exact, only one
in 450 NEPA decisions is litigated,\2\ and as we have heard from agency
officials, the best way to achieve an efficient review process is to
ensure agencies are adequately funded and staffed.\3\ A more effective
way to ensure timely project approval and implementation is to properly
invest in agency capacity, resources, and retention of staff to aid in
expedited reviews. Additionally, as stated by U.S. Forest Service Chief
Randy Moore, 85 percent of all work done by the Forest Service is
currently implemented under CEs (categorical exclusions).\4\ This is a
startling figure that suggests, at minimum, that additional CEs are
unwarranted. Additionally, a CE is defined as ``a class of actions that
a federal agency has determined . . . do not individually or
cumulatively have a significant effect on the human environment.'' \5\
It would be inappropriate to claim that land management projects in
excess of 3,000 acres have no significant impact; therefore, the
acreage limits contained in HFRA Sec. Sec. 603(c)(1), 605(c)(1), and
606(g) and IIJA Sec. 40806(d) should not be expanded.
---------------------------------------------------------------------------
\2\ Ruple, John C. and Race, Kayla M., ``Measuring the NEPA
Litigation Burden: A Review of 1,499 Federal Court Cases,'' SJ Quinney
College of Law, University of Utah. https://dc.law.utah.edu/cgi/
viewcontent.cgi?article=1008&context=stegner_pubs
\3\ Oversight Hearing, Modernizing NEPA for the 21st Century,
https://www.congress.gov/115/chrg/CHRG-115hhrg27722/CHRG-
115hhrg27722.pdf
\4\ Legislative Hearing, H.R. 2989, ``Save Our Sequoias Act,''
Committee on Natural Resources U.S. House of Representatives,
Wednesday, May 10, 2023, Serial No. 118-22, Page 31. https://
www.congress.gov/118/meeting/house/115639/documents/HHRG-118-II00-
Transcript-20230510.pdf
\5\ Categorical Exclusions, https://ceq.doe.gov/nepa-practice/
categorical-exclusions.html
---------------------------------------------------------------------------
One aspect included in Section 111 is to extend the retention of
revenues under good neighbor agreements to Tribes, giving them parity
with states. We support this provision because, at minimum, Tribes
should be extended the same authority as states. TWS also recommends
that Congress evaluate the success of good neighbor authority before
extending the authority permanently. Specifically, we recommend an
analysis to determine whether revenues are being spent in accordance
with the law and making sure revenue retention is not creating a
perverse incentive to increase timber harvests when doing so may not be
in the best interest of the health of the forests or the safety of
communities.
Section 113 calls for the creation of intra-agency strike teams to
assist with implementation of the fireshed management projects, reviews
of NEPA, the Endangered Species Act (ESA), and the National Historic
Preservation Act (NHPA), and more. We believe encouraging agencies to
coordinate in this way will have a positive impact on the review
processes; however, we ask the Committee to evaluate the requirements
of the makeup of these strike teams. The bill currently states that
strike teams cannot exceed 10 members, and these members can be
representatives of the federal government, private contractors, and
volunteers. We believe the legislative text should include a minimum
number of federal employees and language that ensures a balance of
volunteer members so that no one sector is given outsized influence.
Section 121 places strict limits on a court's ability to issue
injunctive relief and places mandates on what factors a court must
weigh when making these decisions. This section also prevents judicial
review of fireshed management projects unless certain factors are met.
Although the provisions in this section are meant to prevent, or at
least reduce, legal challenges that result in project implementation
delays, the judicial branch represents a critical check on the agency's
power that should not be eroded, one that is oftentimes the only resort
to stakeholders who have been wrongly ignored or excluded from project
development. Additionally, further restricting when legal challenges
can be brought before a court could have the opposite effect--we could
see an increase in legal challenges, particularly those that have a low
likelihood of success, because parties opposed to the agency's decision
are rushed to file. These types of unnecessary delays would be better
prevented by ensuring an inclusive and transparent project development
process, rather than placing restrictions on legal challenges.
Section 122 would weaken the ESA by broadly exempting the U.S.
Forest Service and the Bureau of Land Management from the regulatory
requirement under Section 7 of the ESA to re-initiate consultation when
new information indicates that implementation of land management plans
may be harming threatened or endangered species in a manner that was
not previously anticipated. The ESA's Section 7 consultation process is
a vitally important safeguard for more than 400 ESA-listed species that
occur in the National Forest System and 300 listed species that inhabit
BLM (Bureau of Land Management) lands. The wildfire crisis poses a risk
to many listed species but so can ill-informed, poorly conducted forest
treatments, especially large-scale treatments that can span large
swaths of a species' habitat, which could certainly be the case here.
Proper planning and management of these federal public lands offer the
best opportunity for recovery of many of these imperiled species whose
unique requirements for survival occur on federal lands.
Section 123 of the bill allows the agency to force many management
challenges through an internal and binding agency arbitration process
that eliminates the possibility of judicial review in federal courts.
This section of the bill usurps the Constitution's Article III power
given to the courts and vests it instead with the executive branch,
thus shielding the agency from the checks and balances of an
independent judiciary. While agencies frequently conduct quasi-judicial
proceedings, all of those decisions are ultimately ``final agency
actions,'' appealable to federal courts and judicial oversight as the
Constitution intended. Instead, section 123 improperly cuts Article III
courts out.
Title II
TWS supports Section 201, which creates a program to support
interagency coordination around community wildfire risk reduction. As
this Committee knows, wildfire risks are relevant to several
administrative agencies, and increasing intergovernmental coordination
and simplifying processes for communities to access information and
assistance is vital.
Section 202 requires the government to extinguish fires on the
National Forest System within 24 hours after the fire is detected. This
misguided approach has been tried and tested before in the form of the
``10 a.m. policy'' implemented in the first half of the 20th century,
in which the Forest Service was tasked with extinguishing any ignited
wildfire by 10 a.m. the following day. Both western fire science and
long-held Indigenous Knowledge have taught us that fire has always
played a critical role in our country's landscapes. Fire exclusion and
suppression have led to larger, more frequent, and more dangerous
wildfires, which have strained resources, damaged property, and in some
cases, destroyed communities. The answer to solving the wildfire crisis
is not to continue this pattern, but to break it. Research shows that
managed wildfire, which is the use of natural ignitions, such as
lightning, to allow fire to fulfill its natural role on the landscape,
rarely results in destructive outcomes to people and property.\6\ In
fact, the Southwest Ecological Restoration Institutes state that
``expanding managed wildfire use has long-term health, safety, and risk
reduction benefits.'' \7\ Section 202 would make this impossible by
eliminating the government's discretion in managing wildfire on the
National Forest System and would return us to an era of total fire
suppression that is partially to blame for the current untenable
situation.
---------------------------------------------------------------------------
\6\ Independent Analysis of Managed Wildfire by the Southwest
Ecological Restoration Institutes, July 2023
\7\ Independent Analysis of Managed Wildfire by the Southwest
Ecological Restoration Institutes, July 2023
---------------------------------------------------------------------------
Section 205 creates a new CE for the development and approval of
vegetation management, facility inspection, and operation and
maintenance plans for electric utility line rights-of-way. In addition
to falling under a CE, all forest management activities conducted under
this section would also not be subject to ESA consultation or section
106 of the NHPA. As stated above in the discussion of Section 106, the
vast majority of activities conducted by the Forest Service are
accomplished using a CE, and additional CEs or expansions of existing
CEs are unwarranted.
TWS supports the goals of Section 302. Many different stakeholders,
from Native Tribes to state and local governments to industry and
nongovernmental organizations, all have an interest in where and how
forest management activities take place. The language in Section 302
will require a clear reporting of where treatments are happening, the
level of wildfire risk to specific areas, the cost and effectiveness of
treatments, and much more. We greatly appreciate the level of
transparency this will provide, and we believe it will lead to smarter
decisions and increased accountability. We encourage the Committee to
review and incorporate the performance measure recommendations included
in the Wildfire Commission Report.
Thank you for considering our views.
Sincerely,
Lydia Weiss,
Senior Director, Government Relations
______
American Association for Justice Center for Biological
Diversity Center for Justice & Democracy Earthjustice
People's Parity Project Public
Citizen Impact Fund Texas Watch National
Association of
Consumer Advocates
April 16, 2024
Hon. Tom Tiffany, Chairman
Hon. Joe Neguse, Ranking Member
House Committee on Natural Resources
Subcommittee on Federal Lands
1324 Longworth House Office Building
Washington, DC 20515
Re: Please Defend Access to Justice and the Rule of Law--Oppose Rep.
Westerman's draft so-called ``Forest Health'' bill
Dear Federal Lands Sub-Committee Chairman Tom Tiffany and Ranking
Member Joe Neguse:
The undersigned nine civil justice groups write today to express
our strong opposition to Congressman Westerman's draft bill, the poorly
named ``Forest Health'' bill. We understand this bill will be the
subject of the sub-committee's hearing scheduled for April 17th, 2024.
While this bill would likely do nothing to promote ``healthier
forests,'' and would likely promote potentially harmful and destructive
extractive projects under final rules of the Forest Service and the
Bureau of Land Management, the comments of our groups in this letter
focus specifically on the attacks to access to justice through access
to our federal judiciary in sections 121, 122, and 123 of the bill.
These provisions would interfere with the power of federal courts to
say what the law ``is'' and provide appropriate redress to litigants,
and should therefore be rejected.
Section 121 & 122--Section 121 of the bill contains several
provisions that severely limit long-standing judicial review standards
for certain Forest Service and Bureau of Land Management actions.
Specifically, it would interfere with the judiciary's application of
Rule 65 of the Federal Rules of Civil Procedure by significantly
altering a federal court's balancing test for issuing a preliminary
injunction. It also inappropriately applies a severe 30-day limit on
any court-ordered preliminary injunction which will strain limited
judicial resources by requiring re-application of these limited
injunctions. This is simply not how the federal courts work. Section
121 also dramatically limits the time to seek judicial review to 120
days after final agency action, (from as much as 6 years under the
National Environmental Policy Act, or ``NEPA''). This abbreviated time
frame places an undue burden on interested parties and communities with
limited resources and would likely have the unintended consequence of
leading to more litigation, not less, as interested parties may be
forced to file suit to protect their legal rights. Section 121 also
prohibits any judicial review of claims challenging the inappropriate
use of a categorical exclusion by an agency under NEPA. Finally,
Section 122 simply waives the federal Endangered Species Act law in
certain circumstances, and with it, judicial review over agency actions
that could violate one of our nation's bedrock environmental laws.
Section 123--We focus the rest of our comments on Section 123 of
the bill. Importantly, this section would trample on access to justice
principles in our democracy by stifling citizens' ability to seek
redress through our courts, instead channeling many agency final
actions into secretive forced binding arbitration proceedings.
Eliminates judicial review--Judicial review is a central tenet of
the rule of law in our democracy. Congress has long recognized the
critical role the public plays in going to court to hold the government
and private actors accountable to our most fundamental federal
protections, including those protecting civil rights, consumers, the
environment, government transparency, people with disabilities, private
property, public resources, public health, and workers. Yet, this bill
would give the Forest Service and the Bureau of Land Management the
power to eliminate this judicial review. Specifically, Section 123
would force certain public challenges to final agency actions through
an unprecedented internal and ``binding'' agency arbitration process
with final decisions ``not . . . subject to judicial review.''
Dangerously privatizes agency actions--The arbitration process
created by this bill specifically anticipates outsourcing management
decisions on public lands to private entities, including resource
extraction industries, which will create a high likelihood of abuse and
mismanagement. Under this bill, an extractive entity could challenge a
forest management plan, and through a binding arbitration process would
be free to write their own regulatory ``alternative proposal'' for
consideration. The arbitrator cannot ``modify any proposal'' offered by
non-federal entities, but could select such a plan despite being
written by private parties. This is not how our democracy works. Final
agency regulatory actions must be actions of the agency, not third
parties. Had the legal challenge gone to an independent court, a
legally inadequate plan would be remanded to an agency to ``try again''
rather than allowing arbitration to illegally privatize that action.
Violates due process--The binding arbitration process also
effectively obliterates the due process and public notice and comment
protections of the Administrative Procedure Act, since there is no
requirement that a privately selected plan get any public review. Such
review is critical, especially given that--shockingly--the bill does
not require the arbitrator to select a plan that in any way complies
with the statutes governing these management plans.
Not a ``pilot'' program--The bill's language implies it is
creating a limited and discretionary arbitration ``pilot program''
limited to ``no more than 15'' legal challenges a year for each
``Forest Service Region'' and each ``State Region of the Bureau of Land
Management,'' which is incredibly misleading. First, there are a total
of 21 regions between the two agencies, which could mean that up to 315
legal challenges a year could be forced into arbitration. Given that
there were only 264 total environmental/public land cases against all
of the federal government in 2023 (out of over 60,000 civil cases),
this could eliminate all judicial review of these agencies actions.\1\
Second, the public, in fact, has no discretion on whether to have their
concerns heard by a federal court or submit to binding arbitration. The
agency would have ``sole discretion'' to decide which challenges are
forced into this binding arbitration process (if not all of them), and
that decision would also not be judicially reviewable. This broad one-
sided discretion would imbue the agency with the power to shield itself
from federal judiciary oversight for whichever legal challenges it
finds most problematic, which to our knowledge would be an
unprecedented government agency power. Again, our democracy simply
doesn't work this way.
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\1\ See U.S. Department of Justice civil litigation statistics
here--https://www.justice.gov/usao/media/1343726/dl?inline at pg. 20
(visited 4-9-24).
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In sum, this draft legislation is a dangerous and reckless attack
on every day citizens' ability to enforce the law. On behalf of our
members and supporters, we ask that you defend access to justice
through access to independent federal courts, protect our public lands,
and uphold the rule of law by opposing this ``Forest Health'' bill,
should it be filed.
Sincerely,
American Association for
Justice Public Citizen
Center for Biological
Diversity Impact Fund
Center for Justice &
Democracy Texas Watch
Earthjustice National Association of Consumer
Advocates
People's Parity Project
______
Hon. Tom Tiffany, Chairman
Hon. Joe Neguse, Ranking Member
House Committee on Natural Resources
Subcommittee on Federal Lands
1324 Longworth House Office Building
Washington, DC 20515
Dear Chairman Tiffany, Ranking Member Neguse, and Members of the
Federal Lands Subcommittee:
On behalf of our millions of members and supporters, our
organizations write to express our opposition to Chairman Westerman's
discussion draft, ``A bill to expedite under the National Environmental
Policy Act of 1969 and improve forest management activities on National
Forest System lands, on public lands under the jurisdiction of the
Bureau of Land Management, and on Tribal lands to return resilience to
overgrown, fire-prone forested lands, and for other purposes,'' being
heard before the Subcommittee on April 17, 2024. We respectfully
request that this letter be included in the hearing record. Although we
recognize that a few small components of this legislation are positive,
the vast majority of this bill would harm communities, the climate,
lands, water and biodiversity, and we are fully opposed to this draft
legislation as a whole.
Our organizations recognize the challenge in addressing threats
posed by climate change as well as unsustainable forest management. We
oppose several provisions and support some provisions of the proposed
legislation. We caution, however, that active management, especially
where checks and balances embodied in federal environmental laws are
exempted, is not a panacea for climate change-induced effects on our
federal forests. Active management takes many forms including damaging
logging and road building projects that can increase risk of
uncharacteristic fire, such as increasing road density and removing
large old trees that confer fire resilience. Additionally, we object to
the bill provisions that limit judicial review. Our organizations
welcome the chance to be part of this critical discussion, and we
recommend the following actions based on each section of the bill.
Title I: Landscape Scale Restoration
Subtitle A--Addressing Emergency Wildfire Risks in High Priority
Firesheds
This section of the legislation amends the Healthy Forests
Restoration Act (HFRA) by adding ``Emergency Fireshed Management,''
which establishes fireshed management areas and allows governors to
enter into Shared Stewardship agreements with USDA to conduct
management projects in identified firesheds. Fireshed management areas
must be landscape-scale, in the top 20% of firesheds at risk of
wildfire exposure, and may contain federal and nonfederal lands. Once
identified, USDA and the respective governor will conduct a fireshed
assessment that identifies wildfire risk and at-risk communities in the
fireshed and potential fireshed management projects, and then
prioritizes projects based on risk reduction.
Although fireshed projects must comply with forest plans, plans are
often decades old, and this provision creates a Categorical Exclusion
(CE) without an acreage limitation to implement fireshed projects, and
exempts projects from administrative review. Injunctions against
unlawful projects in the Wildland Urban Interface are prohibited.
We ask you to oppose this subtitle, which allows for unlimited
logging and other activities within designated fireshed management
areas to be categorically excluded from necessary NEPA review with
emergency exemptions. A fireshed, as delineated by the Forest Service,
is typically 250,000 acres, and fireshed management areas comprise
multiple firesheds. Along with unlimited logging, this section calls
for fuel breaks, removal of dead and dying trees (trees which are
essential for forest health and regeneration), chemical treatments,
mechanical thinning, and grazing to be used as fireshed management
projects on federal and non-federal lands on 20% (of 7,688) firesheds
at higher wildfire exposure. While no one argues against the importance
of protecting communities from wildfires, this subtitle promotes
logging and other ecologically damaging activities on an unprecedented
scale under the guise of wildfire risk reduction. Authorizing massive
forest management projects without objective and detailed environmental
and administrative review, which limits public engagement and the use
of best available science, is unacceptable.
Subtitle B--Expanding Collaborative Tools to Reduce Wildfire Risk and
Improve Forest Health
One aspect included in Section 111 is to extend the retention of
revenues under good neighbor agreements to Tribes, giving them parity
with states. We support this provision because, at minimum, Tribes
should be extended the same authority as states, as sovereigns.
However, our organizations recommend that Congress evaluate the success
of good neighbor authority before extending the authority permanently.
Specifically, we recommend an analysis to determine whether revenues
are being spent in accordance with the law and making sure revenue
retention is not creating a perverse incentive to increase timber
harvests when doing so may not be in the best interest of the health of
the forests or the safety of communities.
Subtitle C--Addressing Frivolous Litigation
Section 121 of the bill contains several provisions that severely
limit long standing judicial review standards for certain Forest
Service and Bureau of Land Management actions. It inappropriately
applies a severe 30-day limit on any court-ordered preliminary
injunction, and also dramatically limits the time to seek judicial
review to 120 days after final agency action. This abbreviated time
frame places an undue burden on interested parties and communities with
limited resources and would likely have the unintended consequence of
leading to more litigation, not less, as interested parties may be
forced to file suit to protect their legal rights. Section 121 also
prohibits any judicial review of claims challenging the inappropriate
use of a categorical exclusion by an agency under NEPA. We therefore
ask you to oppose this provision of the bill.
Section 122 of this bill would weaken the ESA by broadly exempting
the U.S. Forest Service and the Bureau of Land Management from the
regulatory requirement under Section 7 of the ESA to reinitiate
consultation when new information indicates that implementation of land
management plans may be harming threatened or endangered species in a
manner that was not previously anticipated. Reinitiation of
consultation at the forest plan level is imperative because it provides
the only mechanism to change management practices and apply them
uniformly at the landscape scale, thereby avoiding extinction-by-a-
thousand-cuts from consultation that occurs solely at the project
level. Exempting the Forest Service from the requirement to reinitiate
consultation would codify climate denial. Even as national forests
suffer more and more effects from the worsening climate crisis, this
provision would permanently exempt the Forest Service from ever
modifying any forest plans to protect listed species from changing
climate conditions. The result of this legislation could send countless
species on an inevitable path towards extinction. We therefore ask you
to oppose this provision of the bill.
Section 123 would trample on access to justice principles in our
democracy by stifling citizens' ability to seek redress through our
courts, instead channeling many agency final actions into secretive
binding arbitration proceedings. This provision would force certain
public challenges to final agency actions through an unprecedented
internal and ``binding'' agency arbitration process with final
decisions ``not . . . subject to judicial review.'' The arbitration
process created by this bill specifically anticipates outsourcing
management decisions on public lands to private entities, including
resource extraction industries, which will create a high likelihood of
abuse and mismanagement. The binding arbitration process also
effectively eliminates due process and public notice and comment
protections, as well as environmental analysis and interagency and
Tribal consultation requirements, because there is no requirement that
an alternative selected by the arbitrator receive public, interagency,
or Tribal review. For more information about why this provision is so
harmful, please see Senate Report 115-429.\1\ We therefore ask you to
oppose this provision of the bill.
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\1\ https://www.congress.gov/congressional-report/115th-congress/
senate-report/429/1
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Title II: Protecting Communities in the Wildland Urban Interface
Our organizations support Section 201, which creates a Community
Wildfire Risk Reduction Program to promote interagency coordination and
reduce the risk of wildfires in the Wildland Urban Interface (WUI).
This includes coordination on advancing research and science, and also
supporting fire resistant building codes and standards, which are
proven to be the most effective means of keeping communities safe in
the event of a wildfire. This section also streamlines the grant
process for federal technical and financial assistance, making it
easier for communities to get the help they need to prepare for and
respond to a wildfire crisis.
Our organizations oppose Section 202, which requires the Secretary
of Agriculture to suppress all wildfires not later than 24 hours after
the fire is detected and to suppress all prescribed fires that exceed
prescriptions to burn. The bill also prevents the Secretary from using
fire for resource benefit unless the fire is prescribed, and limits the
use of backburns to control wildfires. This approach has been tried and
tested before in the form of the ``10 a.m. policy'' implemented in the
first half of the 20th century, in which the Forest Service was tasked
with extinguishing any ignited wildfire by 10 a.m. the following day.
This policy of fire suppression and exclusion, combined with worsening
effects of climate change, is what has led to larger and more frequent
wildfires. These extreme events have strained resources, damaged
property, and in some cases, destroyed communities.
Both western fire science and Indigenous Knowledge tell us that
fire has always played a critical role in our country's landscapes, and
that we must work to restore fire regimes to our landscapes.
Ecologically based thinning and fire--prescribed burning, Indigenous-
led cultural burning, and managed wildfire--should play a key role in
accomplishing this goal. Research shows that managed wildfire rarely
results in destructive outcomes to people and property. In fact, the
Southwest Ecological Restoration Institutes state that ``expanding
managed wildfire use has long-term health, safety, and risk reduction
benefits.'' \2\ Unfortunately, this provision would eliminate the
government's discretion in managing wildfire on the National Forest
System and would steer us back towards an era of fire suppression.
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\2\ Independent Analysis of Managed Wildfire by the Southwest
Ecological Restoration Institutes, July 2023
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Section 203 is another provision which our organizations support.
This section expands the Joint Fire Science Program to include a
Community Wildfire Defense Research Program. This program will test and
advance innovative designs to improve the wildfire resistance of
structures and communities, including home hardening, building
materials, subdivision design, and landscape architecture. The
innovations promoted by this program will help save communities and
lives in the event of a wildfire.
Section 205 creates a new categorical exclusion (CE) for the
development and approval of vegetation management, facility inspection,
and operation and maintenance plans for electric utility line rights-
of-way. The forest management activities conducted under this section
would not be subject to ESA consultation or section 106 of the NHPA,
exemptions that our organizations oppose. There is no evidence that
this authority is necessary, given that the Forest Service in
particular has dozens of existing CEs that could be used for this
purpose; and we note that the Regulatory Flexibility Act authorized
federal agencies to utilize the CEs of all other federal agencies,
extending the Forest Service's CEs to the BLM for that agency's use. We
oppose this section and legislative proposals that seek to expand the
use of CEs further. Thank you for your consideration of these comments
and suggestions.
Sincerely,
Alaska Wilderness League Los Angeles Audubon Society
Alaska Wilderness League
Action National Wolfwatcher Coalition
Alta Peak Chapter,
California Native Plant
Society Natural Resources Defense Council
American Bird Conservancy North Central Washington Audubon
Society
Bark Northcoast Environmental Center
Buffalo Field Campaign Northeastern Minnesotans for
Wilderness
Californians for Western
Wilderness Greater Hells Canyon Coalition,
Endangered Species Coalition
Cascade Forest Conservancy Primate Conservation Inc
Center for Biological
Diversity Resource Renewal Institute
Central Sierra
Environmental Resource
Center SAFE Alternatives for Our Forest
Environment
Conservation Northwest Save Our Wild Salmon Coalition
Earthjustice Sierra Club
Endangered Habitats League Sierra Forest Legacy
Endangered Species
Coalition Silvix Resources
Environment America Soda Mountain Wilderness Council
Environmental Law & Policy
Center Southern Environmental Law Center
Environmental Protection
Information Center Southern Utah Wilderness Alliance
FOUR PAWS USA Standing Trees
Friends of Merrymeeting Bay The Urban Wildlands Group
Friends of the Inyo United Plant Savers
Great Lakes Wildlife
Alliance WE ACT for Environmental Justice
GreenLatinos Western Environmental Law Center
Heartwood Western Nebraska Resources
Council
Howling For Wolves WildEarth Guardians
Kettle Range Conservation
Group Winter Wildlands Alliance
Klamath Forest Alliance Zoo New England: Franklin Park
Zoo & Stone Zoo
Klamath Siskiyou Wildlands
Center
______
April 16, 2024
Hon. Tom Tiffany, Chairman
Hon. Joe Neguse, Ranking Member
House Committee on Natural Resources
Subcommittee on Federal Lands
1324 Longworth House Office Building
Washington, DC 20515
Re: OPPOSITION TO WESTERMAN HARMFUL FOREST ``DISCUSSION DRAFT''
Dear Chairman Tiffany and Ranking Member Neguse:
On behalf of Defenders of Wildlife and the Center for Biological
Diversity, we write to express our opposition to Chairman Westerman's
``Discussion Draft'' bill, To expedite under the National Environmental
Policy Act of 1969 and improve forest management activities on National
Forest System lands, on public lands under the jurisdiction of the
Bureau of Land Management, and on Tribal lands to return resilience to
overgrown, fire-prone forested lands, and for other purposes. The bill
will be the subject of the Subcommittee's hearing on April 17, 2024. We
request this letter be included in the hearing record.
Chairman Westerman's bill proposes a large-scale rollback of the
Endangered Species Act (ESA) and National Environmental Policy Act
(NEPA) on millions of acres of federal lands. Its sweeping provisions
would also pave the way for unlimited logging and remove accountability
from federal land managers.
At a time when our planet is facing an extinction crisis of epic
proportions, Congress should not undermine the Endangered Species Act--
our most effective tool for preventing extinctions. Nor should it
remove the informed decision-making and public disclosure requirements
of NEPA, or citizens' rights to judicial review. This is especially
true for a bill that both threatens widespread harms to ecosystems and
imperiled species and imposes no obligation that fire-management
actions (or the other land uses swept in by the bill) serve either the
long-term health or fire-resilience of federal lands.
A. Widespread Rollback of Bedrock Environmental Laws and Opening of
Lands to Unlimited Logging
This bill proposes broad rollbacks of environmental laws. It
removes the obligation to reinitiate consultation under Section 7 of
the ESA for Forest Service land management plans and BLM resource
management plans if: (1) a new species is listed or critical habitat
designated under the ESA, or (2) new information reveals effects of the
plan may affect listed species in a manner or to an extent not
previously considered. See Section 122. Section 7 consultation at this
stage plays a crucial role in providing a landscape-scale evaluation.
The language of this bill resembles that of another Chairman Westerman
separately proposed, H.R. 7408. Here, it is suggested as part of a
Subtitle named ``Addressing Frivolous Litigation,'' which is discussed
further below and effectively characterizes all litigation under the
statutes whose protections the bill would remove as frivolous, however
meritorious the claims would be. See TOC; Section 122 (the only part of
the bill that addresses these plans).
Forest Service and BLM management plans are the blueprints that
govern agency actions. And, the requirement to reinitiate consultation
reflects the continuing obligation of federal agencies under Section 7
of the ESA to insure that their actions, including the implementation
of management plans, are not likely to jeopardize the continued
existence of any listed species or result in the destruction of their
critical habitat. Allowing exemptions for Forest Service and BLM plans
blatantly disregards the agencies' Section 7 obligation and could
potentially threaten the existence of imperiled species in plan areas.
In a similar vein, Section 106(a)(3)(A) would deem ``emergency''
provisions in regulations implementing the ESA and NEPA applicable
``[f]or any fireshed management area designated under section 101'' of
the bill.\1\ In so doing, it requires no finding of actual emergency.
Nor does it contain any limiting language confining the application of
these provisions to fire-related activities. Instead, it would extend
these emergency provisions, across-the-board, to areas comprising
hundreds of thousands of acres each. A single fireshed is ``about
250,000 acres.'' \2\ And Section 101 indicates fireshed management
areas will span multiple firesheds. See Section 101(a).\3\ In Section
101(a)(1), the bill also would remove any obligation to comply with
NEPA in undertaking the designation process, see Section 101(b).\4\
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\1\ These provisions include 50 C.F.R. Sec. 402.05, which allows
informal consultation under alternative procedures, with formal
consultation deferred until after the emergency is under control. Under
this bill, consultation appears intended to be deferred as long as the
bill is in force.
\2\ Confronting the Wildfire Crisis (usda.gov) at 3.
\3\ Strangely, the bill calls for updated fireshed maps at five-
year intervals, but also purports to sunset this process, along with
other provisions, after seven years. See Sections 101 & 107.
\4\ Meanwhile, according to the Forest Service's Wildfire Crisis
Strategy document, Confronting the Wildfire Crisis: A Strategy for
Protecting Communities and Improving Resilience in America's Forests,
``scientists have already located the communities at highest wildfire
risk and the firesheds that are the source of highest community
exposure to wildfire.'' Confronting the Wildfire Crisis (usda.gov) at
28.
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ESA and NEPA compliance provide a framework for agencies to
carefully consider the environmental consequences of wildfire
management, as well as to make informed decisions that balance the need
for effective fire management with the protection of natural resources
and ecosystems. The ESA, as discussed above, also provides substantive
protections crucial in a time in which biodiversity is in crisis.
Without a requirement to follow these laws, agencies could potentially
harm listed species and the ecosystems they rely on.
Turning back to the text, Section 2 of the bill defines ``hazardous
fuels management'' in a way that does not require that the activity be
intended for the purpose of reducing hazardous fuels. Instead, it
encompasses ``any vegetation management activities that reduce the risk
of wildfire. . . .'' This leaves room to argue any ``mechanical
thinning'' or other vegetation management activity would provide such
risk reduction and should be deemed to fall within the definition.
Section 106 uses the definition set forth in Section 2 in requiring
that the Forest Service and BLM ``shall'' carry out, as ``fireshed
management projects,'' ``hazardous fuels management'' actions, which
Section 106(a)(2)(A) frames as ``including'' timber harvest, grazing,
and others activities. See Section 106(a)(2)(A) (also referencing
mechanical thinning, prescribed burning, cultural burning, and
mastication). Read together, these provisions could be interpreted to
provide a vehicle for the agencies to carry out a number of activities
already occurring on federal lands, including for reasons unrelated to
fire management, but without the standards, responsibility, and
accountability that would otherwise exist.
B. Reduction of Federal Agency Accountability and Citizen's Rights to
Judicial Review
1. Lacks Protective Standards and Expands NEPA Exclusions
In mandating that the Forest Service and BLM ``shall'' undertake
certain actions in Section 106, the bill directs no consideration for
long-term forest health, including the need to protect of old growth
forests, and the role of public lands in sequestering carbon,
mitigating the effects of climate change.\5\
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\5\ Apart from this lack of standards, it also bears noting that
the bill expressly vests a responsible official with discretion, for
example, to decide an ``appropriate basal area'' for the removal of
trees to address overstock and crowding, without providing or
referencing any guideposts. See Section 106(a)(2)(e).
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Additionally, Section 106(a)(3)(B) calls for broad categorical
exclusions (CEs) from NEPA obligations, accomplished by adopting CEs
from other, existing laws. Going still further, it removes acreage
limitations set forth in those CEs for projects located in areas in
which an agency and a state have ``completed a fireshed assessment
under Section 105'' of the bill. See Section 106(a)(3)(B)(ii) (removing
3,000-acre limit for categorical exclusions under Sections 603(c)(1) &
605(c)(1) of the Healthy Forests Restoration Act (HFRA) and Section
40806(d) of the Infrastructure Investment and Jobs Act, as well as the
4,500-acre limit in Section 606(g) of the HFRA, along with other
provisions of law described in the bill). The Section 105 ``fireshed
assessment'' itself would be also exempted from NEPA. See Section
105(b).
2. Removes Rights to Judicial Review
i. Section 121
The bill also proposes to remove accountability from the agencies
by foreclosing and frustrating judicial review in multiple ways, set
forth in Subtitle C. Though titled ``commonsense litigation reform,''
Section 121 of the bill is anything but. First, it purports to devise a
different test than the one courts typically use for injunctive relief.
The existing equitable evaluation already addresses likelihood of
success on the merits and any public interest in pursuing, or not
pursuing an activity. Compare Section 121(a)-(b). The bill needlessly
proposes to alter traditional equitable principles.
Second, the bill would limit preliminary injunctions and stays
pending appeal to thirty days. Any additional time requires re-briefing
and re-deciding within successive, additional 30-day windows. See
Section 201(c). Thirty days is quite short, particularly given that the
default time frame simply to brief, let along decide, a motion may take
as much as twenty-eight or thirty-five days.\6\ And, such a requirement
would serve only to waste resources of the parties and courts alike. If
there were reason to believe changed circumstances altered the need for
a preliminary injunction or stay, an agency could move to lift it.
There is no reason to presume, however, that the reasons which led to
the court's decision have changed in thirty days.
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\6\ See, e.g., D.C.Colo. L.Civ.R 7.1(d) (35-day period); DUCiv.R 7-
1(a)(4)(D) (28-day period).
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Third, the bill imposes unreasonable and potentially impossible
time limits. See Section 201(d). Any suit must be: (1) filed within 120
days of the publication in the Federal Register of a notice of agency
intent to carry out a proposed action; but (2) also cannot be filed
until after a record of decision (ROD) or other final agency action
occurs. This forecloses any claim for which the agency takes final
action or issues a ROD more than 120 days after publishing a notice of
intent. See Section 201(d)(1)-(2). Further, 120 days is very short,
undermining the ability of those with fewer resources to sue. It also
would make it difficult for anyone to do so by effectively shortening
the time frame still further if the law under which a claim is
contemplated requires a 60-day pre-suit notice letter, as the ESA does.
Fourth, the bill would prohibit any judicial challenge to the
applicability of a categorical exclusion. See Section 201(d)(3). Even
if an agency flagrantly violated the limits set forth on such
exclusions, citizens would have no means to challenge this conduct.
ii. Section 123
Further insulating agencies from accountability, Section 123
creates a heavily-slanted and vaguely-articulated arbitration pilot
program that would keep citizens out of court altogether, at the
agencies' discretion. Thereunder, the Forest Service and BLM would
select a group of at least 20 arbitrators of their choice. See Section
123(e)(1). Although these individuals must not be registered lobbyists
at the time, any other potential conflicts of interest, such as
industry ties, are not disqualifying. See Section 123(e)(2). If parties
to an individual arbitration cannot agree upon an arbitrator, the
agency's choice prevails. See Section 123(e)(3). Thereafter, the
arbitrator, who need not have any expertise in the subject matter, will
make a decision. See Section 123(d)-(e). That decision will be based
not on the merits of the legal claims, but the perceived superiority of
competing proposals. See Section 123(d). The agency would choose which
challenges to its actions it wants to arbitrate, up to 15 per fiscal
year. See Section 123(a)(2)-(3). Any such challenges would not be
subject to judicial review. See id. The fundamental flaws in, and
unfairness of, such a program are obvious.
Moreover, vague language in the bill would create confusion. It is
unclear what an ``objection or protest'' subject to arbitration is. See
Section 123(a). Will the agency pull cases out of court? Or will it
attempt to preemptively guess which out-of-court comments concerning
its actions would otherwise have led to a lawsuit? If multiple parties
or suits seek to challenge the same action, can the agency attempt to
force them all into arbitration and count that as only one of its 15
potential annual selections?
Setting aside the specific issues presented by Section 123, the
U.S. Supreme Court has described arbitration as ``well suited to the
resolution of contractual disputes,'' but a ``comparatively
inappropriate'' forum for statutory rights created by Title VII.
Alexander v. Gardner-Denver Co., 415 U.S. 36 at 56-57 (1974)
(discussing, among other things, differences in the fact-finding
process and the lack of an obligation for an arbitrator to provide the
reasons for an award). This reasoning applies equally to the types of
claims at issue here.
3. Cedes Control of and Responsibility for Federal Lands
The bill cedes control of and responsibility for federal land
management to state and local governments (but not tribes) in two
respects.\7\ First, Section 106 provides that federal agencies ``shall
carry out,'' as ``fireshed management projects,'' any activities
recommended in a state-specific fireshed assessment under Section 105
of the bill. See Section 106(a)(2)(G). Sections 104-105, in turn, would
provide for state-federal agreements, pursuant to which the referenced
assessments are made. Those provisions do not, however, address how to
resolve any fundamental differences or disagreements if state and
federal regulators do not agree about recommendations for federal
lands. Additionally, Section 106(a)(2)(H) would mandate any activities
recommended in applicable community wildlife protection plans. Federal
agencies' role with respect to such plans, however, is one of
consultation, not control.
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\7\ Because fireshed management areas could include non-federal
land, see Section 101(a)(1)(D), the bill may also make federal agencies
responsible for activities on non-federal lands. If that is the case,
it does so without additional funding to carry out this responsibility.
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4. Additional Issues
Apart from the more overarching provisions, Section 205 grants
broad exemptions from following the law for utility rights of way. Both
``the development and approval of a vegetation management, facility
inspection, and operation and maintenance plan'' under Section
512(c)(1) of the Federal Land Policy and Management Act of 1976 and the
implementation of routine activities under such a plan are subject to
exemptions from NEPA, ESA Section 7 consultation, Section 106 of the
National Historic Preservation Act, and ``[a]ny other applicable law.''
See Section 205. Although there are two exceptions to the NEPA
categorical exclusion for: (1) designated (but not proposed) wilderness
areas under the National Wilderness Preservation System; and (2)
National Forest System lands on which another statute restricts removal
of vegetation, it is unclear if the restrictions on judicial review
extend to this section (or if the catchall eliminates Administrative
Procedure Act review), limiting the enforceability of these exceptions.
Further, the bill lacks any similar caveat for the ESA and other laws
whose protections it removes. It also appears to expressly allow
unlimited temporary road construction--with no exception for wilderness
areas. See Section 205(e). Our nation's environmental laws exist for a
reason, as discussed above with respect to ESA Section 7 and NEPA. And,
the broad catchall exemption to any applicable law seems likely to lead
to unintended consequences.
In contrast to the license granted in this area, Section 202 of the
bill would tie the Forest Services' hands in certain respects in using
fire as a management tool. This provision would require the Forest
Service to suppress all wildfires within 24 hours, limit the use of
backfire, and restrict the use of fire as a management tool to
prescribed fires within the bounds of the prescription. The 24-hour
requirement parallels the ``10 a.m. policy'' implemented in the first
half of the 20th century, in which the Forest Service was tasked with
extinguishing any ignited wildfire by 10 a.m. the following day. Fire
is essential to forest ecosystems. Returning natural fire to fire-
adapted areas in a way that protects communities is an important way to
reduce uncharacteristically large fires that can threaten people, their
homes and pets and livestock. The limitation to prescribed fire in this
provision also appears in tension with the inclusion of both prescribed
burning and cultural burning as activities the agency must undertake
pursuant to Section 106 of the bill.
Finally, Section 305 of the bill proposes a study of potentially
moving the Forest Service headquarters. This is not the place to divert
resources amidst the challenges confronting the agency. Further, many
high-level staffers presently live (and work) outside the existing
headquarters. And, both Forest Service regions and individual forest
supervisors have significant decision-making power under the status
quo. Any such move would come at considerable cost to taxpayers without
adding value. It also risks the loss of institutional knowledge if
individuals leave the agency, as occurred when BLM moved its
headquarters.
***
In short, this bill provides neither additional funds to confront
the wildfire crisis nor the tools to do so. Instead, it proposes to
rollback environmental (and other) laws and divert resources to deprive
the affected public of judicial review and engage in needless study of
moving an agency office.
Thank you for your consideration.
Sincerely,
Desiree Sorenson-Groves, Randi Spivak,
Vice President of Public Lands Policy Director
Land and Habitat
Conservation Center for Biological Diversity
Defenders of Wildlife
______
Mr. Neguse. Thank you.
Mr. Westerman. It is now time for questions, and we will
start with the gentleman from Utah.
Mr. Curtis, you are recognized for 5 minutes.
Mr. Curtis. Thank you, Mr. Chairman. I would like to echo
the thoughts and appreciation to you for bringing this forward
and for being such a leader on this.
I would like to just quickly nod to the Ranking Member,
Congressman Neguse, and your comments about bipartisanship. You
know, you and I are interesting. We share a boundary. And while
the politics might be very different on each side of this
boundary, the geography is very similar. And we both deal with
these forest fires in our district of great magnitude. And it
has been an honor to serve as your co-Chair on the Wildfire
Caucus, and I appreciate your leadership there.
And I think one thing in particular I would like to point
out is your leadership in making sure that those who fight our
fires are appropriately compensated. And just a moment of a
shout-out to these good men and women who oftentimes sacrifice
their health and safety to protect us, to protect our property,
and our lives. And we have seen that in Utah firsthand. So, a
big shout out to all of them.
It has been said, and we all know, that we don't have fire
seasons anymore. We have fire years. And it is just a reality
that we are facing. And this is particularly acute in the West
and in my district. And clearly, we all know this, but let me
point out that what we are talking about impacts water supply,
air quality, recreation, ranching, grazing and, for many
people, their way of life. And just in many, many ways this is
important.
I would also like to point out that oftentimes we overlook
the wisdom of people who live in these areas, and I think
sometimes they can give us a lot of insight on how to fight
these. I am proud to support the Chairman with this
legislation.
Mr. French, just a couple of questions. I don't know, it
does come down sometimes to partisanship and being proactive
versus reactive in these fires. Can you just talk for a minute
about where the sweet spot is on being proactive, and what you
would like to see us consider?
Mr. French. It is so much more efficient to the American
taxpayer to reduce wildland fire risk in the forests and
grasslands. Look at what happened in Texas this year. To do
that preventatively, when you look at the rate of return versus
the impacts that happen to a community from a wildfire and,
honestly, to our resources, it is a no-brainer to me.
And I think sometimes we forget the broader consequences of
getting our forests back into healthier conditions, the
downstream effects of water. The number of users that depend on
water from LA all the way up through most of California, like
50 percent of the groundwater that goes into municipal water
supplies in the West originates from national forests.
So, I think we often think about just the impacts at a
local community, but it is so much broader. It is the food we
eat, it is the communities that depend on the water. And every
time we lose the ability to deliver one of those, the costs are
enormous compared to the investment of reducing that risk up
front.
So, the sweet spot to me is our ability to recognize we
have to continue our suppression work. We have to. But to make
the right investments at the right scales, at the right pace,
up front to actually make sure that these forests are surviving
for generations to come. And right now they are at risk.
Mr. Curtis. Yes. Thank you. You mentioned water. And I have
to think, one of the biggest problems in my community after a
devastating fire would be the floods and mud debris that comes
down and the erosion when that growth is taken away.
If I can compel all of my residents to listen to this
testimony today, and you have a moment to say to them what you
would like them to do as residents in places that run up
against these lands, what advice would you give?
What proactive steps can residents take in prohibiting
these fires?
Mr. French. Well, I am going to answer it this way. I am
going to repeat to you what I told my own mother who lived for
years in Heber, Arizona, some very large fires, who, as I
walked her property, loved the environment around her. But the
reality was that very environment on her property and the
adjoining property would cause her to lose her house. So, my
advice to homeowners is look at your own property, make sure
that we are reducing the fire risks that you have right around
your house. Do simple things if you can, or take advantage of
what our fire safe councils and others are offering to harden
your property. And then, when you look at the surrounding
lands, whether it is state, Federal, county, or even private
landowners, be a part of understanding what a healthy forest
is.
And most of our forests and fire-adapted areas right now,
because we have excluded fires, and this is what I have told
her, I am like, that beautiful forest that you are looking at
that you love is unhealthy.
Mr. Curtis. Yes.
Mr. French. It is unnatural.
Mr. Curtis. I wish I could let you go on a little bit more,
but I am out of time.
So, I am going to yield, Mr. Chairman.
Mr. Westerman. The gentleman's time has expired. I
recognize the Ranking Member, the gentleman from Colorado, Mr.
Neguse, for 5 minutes.
Mr. Neguse. I thank the Chairman.
Again, thank you for being here, Deputy Chief French. And I
certainly want to echo the remarks of my colleague from Utah.
We will miss him here in the House, but I know he will no doubt
continue his efforts that have been so successful here in our
body in partnering on a bipartisan basis to address wildfire
risk. And it has certainly been a pleasure and a privilege for
me, as the co-founders of the bipartisan Wildfire Caucus, to
work with him in that regard, although our ski resorts are
still better than his.
[Laughter.]
Mr. Neguse. But anyway, not to offend the sensibilities of
the crowd, apparently.
Mr. French, I want to say I deeply appreciate the work that
your agency does, deeply appreciate the work that Chief Moore
does, and have certainly appreciated the partnership of the
Forest Service. So, I want to preface my remarks with that
statement.
I have been frustrated by the inability to receive an
answer from the Forest Service regarding some basic questions
that myself and several other Members of Congress have
propounded to the agency in regards to wildland firefighter
pay. As you know, we have worked with the agency for years, and
we appreciate your partnership. And, of course, we understand
that it takes Congress to act with respect to making permanent
some of the pay protections that the Forest Service has been so
passionate about.
But one issue in particular that has percolated to our
office and to others is housing, and a number of anecdotal
reports of exorbitant housing increases for wildland
firefighters that are barely making enough to get by. I
previously had another witness from the Forest Service who
testified in a hearing in March whom I questioned on this
issue. We sent a letter in February.
I don't know if you are aware of that letter. If you are,
perhaps you can opine on that. And if not, I would love your
commitment to go back to the agency to perhaps convey to them
that one of their biggest advocates on Capitol Hill, someone
who has worked very hard to try to increase funding for the
Forest Service, is deeply disappointed in their inability to
answer what were basic questions, essentially, about the
housing rent increases for wildland firefighters that we have
heard over the course of the last 6 months.
Mr. French. Fair enough. I do commit to that. I will go
back and talk with the Deputy Chief area that oversees that,
and I apologize to you that we haven't given you a timely
response.
The rates that we have to charge for our housing are,
essentially, set through policy that comes from the Office of
Personnel Management. I will tell you that, as a leader in this
agency, it is very hard for me to understand why we have to
charge certain rental rates that are not commensurate with the
communities that we are a part of, but may be set on a
community that is 100 miles away, like Bend, Oregon, where
rental rates are going to be much higher, versus a rural space
that we would be in.
It is our central focus, and we have started to move some
Great American Outdoors funds to address it. But the actual
issue in terms of the rates that we are charging has been a
central focus for Chief Moore and our leadership. And we will
get you your answers.
Mr. Neguse. I thank you, Deputy Chief. And I know this
isn't your particular bailiwick in terms of your subject area,
and I also know it is not the exact nature of the subject that
we are discussing today.
But I appreciate your commitment, and that is exactly why
we are hoping for an answer from the agency, and one of the
questions was actually specifically around OMB's policies,
because we think we can be a resource in perhaps advocating for
changing some of those, either on the regulatory basis or
perhaps via changes in statute. So, I thank you.
And I thank the Chairman. I yield back.
Mr. Westerman. The gentleman yields back. The Chair
recognizes the gentleman from Oregon, Mr. Bentz, for 5 minutes.
Mr. Bentz. Thank you, Mr. Chair. And I also want to
compliment you on this bill. I read through it this morning. It
is an extremely focused and, I think, excellent approach to the
challenges we face in our forests.
To that end, I am curious about how much progress the
Forest Service has actually made over the past, let's just say,
5 years in trying to reduce the danger of wildfire. Can you
share with us what you think the progress has actually been on
perhaps a percentage basis?
Because you have millions of acres you are dealing with,
can you share with us how many thousands of acres the Forest
Service has successfully reduced the level of fuel upon?
Mr. French. Yes. I think there are actually two ways to
look at this. Last year, we reduced wildland fire risk on, I
think, 4.3 million acres, which was a significant increase from
where we were the year before.
Mr. Bentz. And how many total acres are you dealing with in
millions?
Mr. French. How many total, say that again.
Mr. Bentz. How many total acres does the Forest Service
manage?
Mr. French. There are 193 million acres.
Mr. Bentz. Right. And how many did you take care of?
Mr. French. Last year, I think it was--let me give you the
exact number. I think it was 4.35 million acres.
Mr. Bentz. So, we have a ways to go.
Mr. French. We do.
Mr. Bentz. Let's hop to the amount that wildland
firefighters are paid. I had some contractors come in 2 weeks
ago, 3 maybe, from Oregon that contract with the Forest Service
and the BLM. And they had been told that they had to increase
the pay of those that they hire when they are doing these kinds
of contracts by something like $9 an hour, taking up the pay to
around $35. Does that ring true to you?
Mr. French. I am not aware of that, but I can get back with
you.
Mr. Bentz. So, it is true. And the amount that is being
paid now is somewhere in that mid $30-per-hour range.
Now, I have actually fought fire and, frankly, $35 an hour,
I am not sure I would want to fight for $35 an hour, but the
truth of it is that is a pretty good wage. Are you aware of
people being paid more than that to fight fire, $35 an hour?
Mr. French. OK, I also fought fire for the Forest Service.
I am aware of other state agencies that are paying more, and I
don't know what contractors are paying.
Mr. Bentz. I don't think the Forest Service had much to do
with the establishment of these rates. I think it was somebody
else, and we will probably hear about that later. But that
amount, that dramatic of an increase in that which has to be
paid to those who are hired to try to help us, makes it
extremely difficult for many of these companies to stay in
business because it was done abruptly, and the amount of the
increase was around 20 percent, maybe even 25 or 30 percent of
what was normal.
And I will just point that out because it is going to be
difficult for many of them to stay in business.
Mr. French. OK.
Mr. Bentz. And they are absolutely essential, these
independent contracting groups, to controlling fire in and
across the United States. They are absolutely essential. So,
you might want to look into that.
And we had better be talking to whoever is in charge of
raising these rates. And I had it in my notes, the office of
somebody, and you might want to reach out and say, what are you
doing? You are putting the nation at risk because these
companies can't afford it. I mean, that is just the way it is.
Let me hop to NEPA for a moment, and the lawsuits. Are you
aware of lawsuits that have delayed the Forest Service in
trying to take care of dangerous situations, fire-related?
Mr. French. Am I aware of, did you say ESA?
Mr. Bentz. Sure. Under the NEPA or----
Mr. French. Delaying when we are actually suppressing
fires?
Mr. Bentz. No, no. In anticipation of cleaning up the
forest so you could perhaps not have as many fires to fight.
Mr. French. OK, yes. So, we have to consult on ESA with two
agencies. And I would say historically we have had projects
that have been delayed in the last year or so. We have been
working very collaboratively.
Mr. Bentz. I am going to run out of time here. What I am
getting at, there is a provision in this bill, and it is an
excellent one that is doing its best to try to head off that
kind of litigation, so that you can do your job and try to
protect people in cities and towns. Are you being prevented
from doing that by virtue of litigation or----
Mr. French. By virtue of litigation?
Mr. Bentz. Yes, or the threat of lawsuits?
Mr. French. Litigation, for me, as overseeing and doing
this work, litigation is a part of just our work, and I
anticipate that in our time frames and our costs.
Mr. Bentz. Thank you. I yield back.
Mr. Westerman. The gentleman yields back. The Chair
recognizes the gentlelady from New Mexico, Ms. Leger Fernandez,
for 5 minutes.
Ms. Leger Fernandez. Thank you so very much.
And once again, welcome Deputy Chief French, and thank you
for being here. As you know, April 6 marked the 2-year
anniversary of the Hermits Peak/Calf Canyon Fire that was
started by the Forest Service's prescribed burn and devastated
my home state of New Mexico and lands I hold dear. So, every
time I look at issues with regards to forest management, I come
with those fresh burn scars in my memory.
And I want to thank Chair Westerman for drafting
legislation to address these, and thank you so very much for
incorporating some of my suggestions and other suggestions from
the Democrat members of the Committee.
So, while there are provisions in the bill that I think are
transformational in terms of how we address and manage our
forest because responsibly and appropriately managing the
forest, I think that there is consensus on that. There is an
issue of how do we go about it. And one of the things I think
has come up with some of these questions is really about how do
we pay for it all, right?
How do we make sure that we pay enough so our firefighters
are able to do their job so that people working on state fires
aren't paid more, that there is enough so that we can get this
done, because that doesn't get done in a vacuum.
I take it, Mr. French, does the Forest Service have a big
pot of money sitting around that they can utilize to get stuff
done?
Mr. French. Well, it has been helpful under the Bipartisan
Infrastructure Law and IRA, but generally, no.
Ms. Leger Fernandez. Right. So, I wanted to see if you
could comment. Yes, and I think that that was key. Like, we
recognized in the Bipartisan Infrastructure Law the need to
send money to USDA, to the Forest Service to start some of this
transformational work that needed to be done, and to look at
firefighter pay. And now we are trying to say, how do we get
some of that and actually institutionalize it?
But could you speak a bit on, in reviewing this, are there
consequences for your agency?
And would you be able to carry out some of the directives
without funding resources to execute them?
Mr. French. As written right now, so here is the direct
answer. Yes, we could carry them out, but it would come at a
consequence of us not doing other things. I mean, that is what
we do right now. We take the money we have, and we focus on the
priorities. And it may mean we are not delivering as much in
other areas.
The other way to look at it is, no, there are certain
aspects of this that we would need more funding to carry out.
Ms. Leger Fernandez. Right. And I think your comment
earlier that if we put money up front we are going to save
money from suppression costs, which are much more expensive and
have lots of other negative consequences for our economy. But
when I see this, it is like we can't keep complaining about
these issues and not fund the agencies to do their work.
Mr. French. Yes I agree with you. And the BIL and IRA
funding has been incredible. It has helped us really look at
wildland fire risk reduction. But when you compare that, that
is one-time temporary money. You can't hire the type of
capacity you need long-term to actually sustain a response to
this problem and fund the agency at a level long-term to
actually deal that. So, it is a different dynamic.
I mean, we are dealing with right now on how to deal with
big budget shifts, cuts we just got and in our workforce
because that money was one-time money, right? So, most of that
goes out to contractors and others. But if you are going to
build a workforce to sustain this work over time and deliver
our full mission, whether it is providing timber, range
management, recreation, all the things that we do, there has to
be a sustained investment.
Ms. Leger Fernandez. Right. So, I would encourage my
colleagues to think about the need to actually fund the
agencies to do the work that we are asking them to do,
including in this legislation.
I want to quickly ask--I know you did some service-wide
planning with regard to NEPA, the endangered species. Can you
tell us quickly some of the accomplishments that you
accomplished with that planning?
Mr. French. Yes. I mean, this has been a focus of mine for
years. Over the last 10 years or 5 years, we have seen a
relative decrease in our NEPA costs by about $10 million a
year, yet we have been producing more. We are doing fewer
decisions, using more authorities, but we are producing more.
We have record amounts of hazardous fuels work, a million more
acres this year than we had the year before. We have been
holding steady on our ability to provide other outputs, and yet
our costs for environmental compliance continue to go down.
That is one aspect of it that I am pretty proud of.
Ms. Leger Fernandez. Yes. Part of that says you don't need
to get rid of environmental compliance, you can actually plan
for it and get better results.
Thank you for the biochar provisions in this bill. I
learned a lot about biochar with you, Mr. Chair. And with that,
I yield back.
Mr. Westerman. The gentlelady yields back. The Chair
recognizes the gentleman from Minnesota, Mr. Stauber, for 5
minutes.
Mr. Stauber. Thank you, Mr. Chair and Chairman Tiffany, for
holding this. I want to thank you for convening this hearing. I
want to thank Chairman Westerman and the Committee staff for
their work on the legislation before us today.
The district I represent in northern Minnesota is home to
great timberland, including on Federal lands like the Chippewa
and Superior National Forests. Like many rural districts across
the country, we face serious risks from wildfires if our
forests are not properly managed. This legislation will help
benefit the people of northern Minnesota and our vast public
lands.
One of the provisions that I am very happy to see included
in this draft is the expansion of the Good Neighbor Authority
to allow counties and tribes to fully participate. I am happy
to see my good friend, Representative Fulcher's Treating Tribes
and Counties as Good Neighbors Act included in the text of this
bill. I am proud to co-sponsor the standalone bill, and want to
thank Chairman Westerman for including it in his bill.
Deputy Chief French, thank you for joining us once again
today. The Chippewa and Superior National Forests are not
currently meeting their timber harvesting goals, and this is
having serious consequences. In August 2021, during the
Greenwood Fire, nearly 27,000 acres burned in the Arrowhead
region of northern Minnesota, most of that within the bounds of
the Superior National Forest. And that was just 10 years ago,
after the Pagami Creek Fire that burned just under 93,000 acres
on the Superior National Forest.
Deputy Chief French, timber harvesting is an important tool
in preventing wildfires, one which, I will add, supports
economic activity and communities like those in northern
Minnesota and raises revenues that can be reinvested into
forest management.
Deputy Chief French, can you share why national forests
like the Chippewa and Superior are not meeting their timber
harvesting goals, their 100 percent of the allowable sale?
Mr. French. Sure. First of all, I would say over the last
10 years, we have increased our timber volumes out of the
agency about 15 percent, while the budget that we have had
specifically for timber----
Mr. Stauber. Mr. French, I am just specifically talking
about the Superior and Chippewa, not the overall forest.
Mr. French. Well, I am going there.
Mr. Stauber. OK.
Mr. French. The bottom line is staffing. The overall budget
we have had in forest products has remained relatively flat in
that same period, whereas the increase of costs for personnel
and things like that, we had nearly a 10 percent increase in
salaries that we had to pay for last year, but the budget
remains flat.
So, at the end of the day, the amount of staffing we have
to carry out this work, and we have been investing in that
region, in their area, but chronically they tell us they don't
have quite the number of funds they need.
Mr. Stauber. So, how much staff do you need?
By the way, I am not sure I agree with that answer, but how
much staff do you need to make sure the Superior and Chippewa
are harvesting 100 percent of the allowable sale?
Mr. French. I will have to get back to you. I don't know
the specific numbers on that.
Mr. Stauber. Are you seeing these same issues, Deputy Chief
French, outside the forest areas of Minnesota, like around the
nation? Are you seeing short staffing causing the logging to be
reduced?
Mr. French. Yes. I mean, it is a combination of three
things: we have lost specific expertise in staffing in some
areas; we have lost infrastructure in some areas, forest
products infrastructure, where it is harder to utilize those
pieces; and then the composition of things that we do offer. We
are not offering as much in terms of saw logs and other pieces
as we reduce wildland fire risk. So, that has consequences that
we know in our own supply, and doesn't meet all those goals.
The last thing I would say is that those numbers that you
talk about are allowable sale quantities. There are lots of
other factors that had to go into how much we actually offer on
forest to forest.
Mr. Stauber. Would you consider getting some professional
advice from the private industry?
Mr. French. Yes, and we----
Mr. Stauber. Which wouldn't cost the government anything.
Mr. French. No, and I will say that I have been making some
of those moves to bring in folks from the private industry to
give us advice on how to handle some things right now. So,
sure.
Mr. Stauber. If I got a group together to work on the
Superior and Chippewa from the private industry, you would have
an open door?
Mr. French. We have an open door to anything like that.
What I would also suggest, though, is that managing forests
on private lands versus managing lands through the Federal laws
and regulations and the multiple things that we have to do are
quite different. And you are going to see different management.
Mr. Stauber. So, you are saying the Federal Government has
redundancy and rules and regulations that hamper your ability,
is that what you are saying?
Mr. French. No, I am not saying that. I am saying if you
have a private land that you are managing towards the value
primarily of economic timber versus the value of, let's say,
wildlife, fisheries, water, tribal interests, there is a whole
other set of interests that we have to manage on a national
forest based on the laws that Congress has passed that are
quite different than a private industrial landowner. And I
think it is just a different space.
Mr. Stauber. Thank you very much. I see my time is up.
I yield back.
Mr. Westerman. The gentleman yields back. The Chair
recognizes the gentleman from California, Mr. Peters, for 5
minutes.
Mr. Peters. Thank you, Mr. Chairman.
Thank you, Mr. French. I thought your testimony was very
well done and very helpful. I am also going to praise the Biden
administration for what it has done with the IIJA, the
infrastructure bill, and IRA in terms of advancing action on
climate.
But I am going to express to you the same frustration I
have had with the Administration I expressed to Mr. Ali Zaidi
yesterday, which is accepting this litigation regime as a
given. And you did that, I think, very professionally. You are
not here to criticize NEPA or any other laws. You have
described them as part of your timeline when you work, it is
just part of the game. I have been asking the Administration in
other contexts to tell us what we could do to make it go
faster.
You know, we are facing this climate challenge that we
describe as something we have to act on in 10 years. In my
other Committee, Energy and Commerce, we deal with
transmission. It takes 10 years to build a power line. You
can't deploy significant renewables without doubling or
tripling the size of the grid, and we are just not getting it
done because we have burdened ourselves with such process. Out
of the 10 years it takes to build a power line, 7 years of
process, 3 years are construction. And we are not going to
compete with China or solve the environmental crisis under that
kind of regime.
And it occurs to me that there are bedrock laws like the
Clean Water Act and the Clean Air Act that prevent the emission
of pollutants into the air, but we have these process laws like
NEPA that we need to look at again.
I look at the comments about Mr. Westerman's draft, and a
lot of it is just conclusory: Well, we can't change public
access, we can't change access to the court, as if that is the
game, as if NEPA was delivered to us on tablets from Moses,
right, rather than IBM's electric typewriters in 1970, that is
what they had back then. People like us wrote that law. Those
laws need to be adapted to today's challenge.
And in the fire context, you can't be litigating over
almost every tree. We cannot do that. I am not asking you for a
response. I am telling you. What I would like the Biden
administration to tell me is how to make it better. This notion
you can't go to arbitration, or you can't go to an
administrative proceeding instead of a Federal court, where the
complaint sits on a desk for a year before it is picked up, in
the context of this, what we describe as an environmental
crisis.
And I am asking the Administration, I will ask through you.
I think we need to do better. I think we need to figure out a
way. Where is this essential? Where is it adding to
environmental protection? And also, I practiced environmental
law for 15 years, so I know a little bit about the NEPA-style
litigation. You have to ask, we have to ask what the trade-offs
are.
And time is our enemy now. So, I don't want you building in
time. I mean, you have to do it now. I don't want you building
in time for NEPA litigation that is not necessary. I want to
get rid of that. And I don't want you building in time for
reconsultation if that is a waste of time. I want to give more
authority to the Forest Service to manage these things, to get
these forests in a condition that would have existed had
natural fire existed over the last century because, as I said
before, we don't have natural fires anymore. We have
catastrophes.
Some people wonder why I, from San Diego, am worried about
that. Well, we have had fires too, directly. We had fires in
2003 and 2004, when I was a Member in 2007, when I was a member
of the City Council that took homes and a lot of what we
couldn't get out of our way on brush management, like you
described with your mom. But just because I am next to the
ocean, I wouldn't claim the ocean as my district, right? The
oceans and the forests are natural systems that affect the
entire world. We all have to be in this game, and I am just not
going to sit here and say that the way we have done it always
is the way we should do it just because we have always done it,
always.
And some of these arguments I see, I will just let people
know who are here, are very conclusory, as though expanding
categorical exclusions in itself is an argument that persuades
me. It doesn't. If expanding categorical exclusions is a way we
can help these forest systems be healthy, I am all for it
because I am for the environment, not for these 50-year-old
environmental laws that were appropriate in 1970, but often
don't meet the challenge and, in fact, ironically, undermine
the challenge of environmental protection today.
So, I am happy to have this conversation start off today.
And Mr. Chairman and Mr. Chairman, I look forward to
participating, and thanks again for letting me participate in
this hearing. And I yield back.
Mr. Tiffany [presiding]. The gentleman yields, and I will
recognize Representative Westerman for 5 minutes.
Mr. Westerman. Thank you, Chairman Tiffany.
And again, thank you, Mr. French, for being here today. You
said something in your testimony that I have said many times in
this room before. It is the old metaphor that an ounce of
prevention is worth a pound of cure. And that is probably
nowhere more evident than in forests. And a trained eye can see
that a forest is in need of work.
And when Mr. Peters and I worked on the Save Our Sequoias
Act, one thing we put in there was the authority that you all
are already using. It is an emergency authority, where you can
go in and do work when an emergency happens. But when you look
at a forest and it is overgrown, and it is in an arid condition
where fires are prevalent, you can almost look at it like a
bomb with a fuse on it. And we shouldn't wait until the fire
starts to use those emergency authorities.
Could you talk a little bit about how the emergency
authority has benefited the work on getting more of these
hazardous areas treated, and the benefits of codifying that so
that you would have that authority and be insulated from
litigation on it?
Mr. French. Yes, thank you, I appreciate the question. When
I talked about the efficiencies that we have created and the
way that we are doing our NEPA right now, part of it is based
on the full use of the authorities we have been given through
Congress.
And one of those is the Bipartisan Infrastructure Law
Emergency Authority. The Secretary authorized us to use that
over 27 million acres. We have 37 projects that have been
promulgated using that authority, and then we have other
authorities like the one that you are talking about that we
have used out of our own NEPA regs that allowed us to move in
and take action immediately before the fire hit.
It is also incredibly helpful sometimes after a fire to
remove hazard trees along roads that right now we don't have
some clear authorities to do that quickly. So, using those in
those spaces have tremendously helped us.
If I look at the efficiencies that we have been able to
create, it is primarily driven by doing larger projects using
all the authorities, whether those are CEs that have been
promulgated or emergency authorities, that have basically
allowed us to reduce the amount of money we put into NEPA and
other environmental compliance, but produce higher quality and
more authorizations at the other end, Congressman.
Mr. Westerman. Thank you. When I first came to Congress in
2015 and started working on these wildland fire issues, I have
learned from service in the State Legislature that if you want
to know how something works, go look at the budget. So, I did
hours upon hours of digging through the Forest Service's
budget. And I found something very interesting in it, that at
one time the Forest Service sent more money to the Treasury
than the Forest Service was appropriated. So, the Forest
Service was actually, in a sense, making money for the Federal
Government.
Now, by the time I got here in 2015, it was way the other
direction on that because of the tremendous amount of money
spent on fire suppression. At one point, I thought we should
just change the name of the Forest Service to the U.S. Fire
Service because most of the funding went to fight fire.
And we worked hard to get something called the Fire Funding
Fix done so that FEMA funds would be available when
firefighting funds were exhausted, and the thought was more
management could happen instead of saving all the Forest
Service budget to fight fire at the end of the year. We got
that done, we have given the Forest Service authorities, such
as the 20-year stewardship contracting, which, unfortunately,
to my knowledge, there hasn't been a 20-year stewardship
contract issued yet. I am still going to continue working on
that and pushing on that.
But we hear a lot about funding and needs for funding, and
I hear everything you are saying about the multi-use aspect of
our Federal lands. But if we just took the money we were
spending to fight fires and used that on forest management,
then we wouldn't have to spend so much money on fighting fires.
It is like we have things upside down and backwards.
But on the other hand, that forest is valuable. It has very
valuable assets in it. And as you responded to Mr. Stauber,
private landowners are trying to make a profit. If the Forest
Service wasn't trying to make a profit, just trying to pay the
bills so that we could do more management work, it seems like
there is a tremendous asset there that--as I said, it is 300
trees per acre and needs to drop down much lower than that. If
we had the markets, we could sell that timber to pay for future
management. And we have programs like Good Neighbor Authority.
I have a bill on wildlife habitat management that does just
that, it takes revenues from Forest Service sales and puts them
back into the fund to do more work.
Do you see a scenario where, instead of Congress having to
appropriate more money, where we could actually use the
resources we have to generate the funds so that the Forest
Service could pay for all the work that they are doing to keep
our forests healthy?
It has happened in the past. Why can't it happen again?
Mr. French. OK, so maybe. I mean, to be realistic here, I
would just say there are a number of activities that we do. If
we were to recover the funds that come from them, it would help
pay towards delivering the program. And it goes beyond forest
management.
In this one there is a scenario to get there, but I think
that there are a couple things. Attitudes on how we manage our
forests, and I am reflecting public meetings and comments that
we get, litigation that we have, towards managing forests
through a standard-type rotation versus a long-term resiliency
set, I think that is one of the spaces that we find ourselves
in public land management is those two spaces, Congressman.
And why I bring that up is that both result in our ability
to deliver forest products. One results in a continuous
delivery of saw logs. And I think our challenges right now are,
as we are trying to reduce wildland fire risk and those
pressures not to rotate trees but to do long-term restoration,
our ability to provide saw log products as well as remove all
the other products at times is pretty challenging, and you can
see the consequences of that.
Mr. Westerman. Yes, and just a quick follow-up on that. I
am not talking about plantations and clear-cutting. I am
talking about thinning activities that over time can produce
perpetual income to the Forest Service. And it is being done on
the Ouachita Forest in my district, and it is the healthiest
component of the forest that is out there.
And we are seeing it was done to create habitat for the red
cockaded woodpecker. We are seeing more woodpeckers, more
songbirds, more quail, more turkey, more deer, and a flush of
biodiversity when you open up the forest floor to sunlight.
So, I think it is not really thinking outside the box; it
is looking at how we can use sound science to manage these
forests, and they can actually pay their way so that it is not
a burden on the taxpayer. And that is something I want to work
on as we go forward.
I am way out of time. I yield back, Mr. Chairman.
Mr. Tiffany. It is forestry, right? The gentleman yields. I
want to ask a couple questions here and take my 5 minutes, if I
may, Mr. French.
I just got done planting the state tree in Wisconsin, a
sugar maple, out on the Capitol grounds. What a great day to be
able to do that. And we look forward to that being a mighty
maple at some point. Maybe we can even tap it for a little
maple syrup.
So, Mr. French, I want to piggyback a little bit on the
Chairman's questions there. What is one change that could be
made to get there? You just used the phrase, ``to get there,''
in terms of having more harvest, and I think we are driving at
how we had management a few decades ago that was so successful.
And in order to get there, what is the No. 1 thing you would
change?
Mr. French. Change in the agency or in general?
Mr. Tiffany. What is the No. 1 change in the position that
you are in?
Let's say you are king for a day in the United States
Forest Service. In order to ``get there,'' what is the No. 1
change that would help us get there?
Mr. French. I think the No. 1 thing is being able to
clearly show people the true costs and consequences of what we
are doing, and then being able to prioritize the resources we
have towards delivering what those choices are.
If you are going to deliver on wildland fire fuels
reduction, we can, as the Chairman pointed out, most
oftentimes, not always, pay for the sawlogs to get out. I have
to figure out a way to pay for all the small-diameter and other
pieces, because the sawlogs don't usually pay for the biomass.
If I could make a change, I would figure out a solution that
does both, gives me a way to transport and dispose and utilize
biomass in a way that I can also deliver the broader set of
sawlogs at the same time. In this forestry question, that is
what I would shift.
Mr. Tiffany. So, what is the impediment to get that biomass
off from the forest floor?
Mr. French. Fuel cost and cost of utilization, and a loss
of an integrated set of markets out there, forest markets, of
where you have to take that stuff to.
Mr. Tiffany. So, in other words, for example, I cited in my
testimony the loss of sawmills.
Mr. French. That is a part of----
Mr. Tiffany. It is a big problem, right?
Mr. French. It is a part of it, yes.
Mr. Tiffany. So, the Federal Forest Resource Coalition puts
out a quarterly update on how much harvest is coming off from
the U.S. Forest Service lands. Do you see that report?
Mr. French. I have seen their reports in the past. I am not
sure if I saw the latest one.
Mr. Tiffany. Because what is striking to me is, subsequent
to huge amounts of money being authorized to try to get rid of
this backlog, we were told that this is simply going to take
more money to be able to harvest more wood and all the rest. We
are actually not seeing that in the data. So, what is it going
to take to get more harvest off from those Federal lands?
Mr. French. Again, on the wildfire crisis strategy, the
focus there is how do you increase or decrease the risk to
communities that are threatened by wildfire, and that is going
to run the gamut of work that can be from removing chaparral
and shrubs all the way to sawlogs.
And we have been focusing on the communities that are most
at risk. Unfortunately, many of those places are places that
lack a connected forest products industry. We spend a lot of
time trying to connect those two.
I understand the criticisms, but what I can say is we
increased our fuels reduction last year by more than a million
acres based on those investments. We have been holding fairly
steady on our timber volume outputs. We have been trying to
create ways that you connect the two more directly.
But I would also say that there should be as much
investment in the budget items that are for forest products as
there are for fuels. They drive a capacity that does similar,
but different things at times.
Mr. Tiffany. Are you saying that they are not capturing the
fuels reduction that you are doing in that data?
Mr. French. No, I am saying that there are places where we
are doing significant fuels reduction that isn't necessarily
about removing sawlogs.
Mr. Tiffany. So, the data is not capturing that. So, how
they are measuring this, would that be accurate, that they are
not capturing some of the work that you are doing?
Mr. French. What we are showing, and we will be able to
come back to Congress and show this, is what is the overall
risk reduction that we are creating to the communities that we
are trying to protect. That is a better outcome to look at, in
terms of overall value of the work we are doing versus how many
acres you treat or how much volume you produce.
And I say that not to say that we are not wanting to make
sure that we create a sustainable amount of volume at any given
time, but the investments we have had to reduce wildland fire
risk, which primarily came through BIL and IRA, are not
necessarily connected. If you are trying to reduce wildland
fire risk in some of your most fire-prone communities, at times
you are going to be doing it in ways--I will give you an
example, and I know I am over time, but yesterday I was meeting
with a community that is in the exact same predicament we are.
Mr. Tiffany. There is nobody here to object, go ahead.
[Laughter.]
Mr. French. All right. I mean, this is the conversation
that I just went through yesterday. They had to dispose of tons
and tons of acres of trees because they couldn't figure out how
to subsidize the cost to transport them to someplace for them
to be utilized.
So, if you are going to reduce wildland fire risk to a
community that doesn't have infrastructure to use what I think
increases the scale, like logging, like timber sales, then the
costs are higher per acre, and you don't necessarily see those
outputs. And this is worth us getting into a deeper
conversation. But that is what is going on.
Mr. Tiffany. We look forward to having that conversation
with you.
Are there other agencies that are a problem here also?
Because, from my understanding, the EPA has been a problem in
terms of being able to build a plant specifically in the upper
Midwest, possibly even in my home state of Wisconsin, and they
have denied the ability to do that, because of, they say,
emissions concerns.
Mr. French. I am not aware of that. What I will say is
integrated forest products industry is an incredibly important
piece for us to reduce wildland fire risk and maintain healthy
forests.
Mr. Tiffany. If this question is redundant, I apologize, I
was planting that maple tree: Is there any scientific reason
why forest management projects should be limited to no more
than 3,000 acres?
Mr. French. You mean in our categorical exclusions?
Mr. Tiffany. Yes.
Mr. French. Well, part of that was based on what Congress
told us. When those CEs were promulgated, let's say under the
Healthy Forest Restoration Act, that is what Congress said was
the limit for something not being significant.
For the things that we have promulgated, what we do is we
look at our past history of environmental assessments that find
that projects are not significant, and we use those to say here
are the acreages that we would say a new CE would make.
Mr. Tiffany. Might it be helpful if you can expand that CE
if it would be appropriate for that landscape?
Mr. French. It is always helpful for us to have--OK, here
is how I will answer it.
A CE takes us about 143 days to finish, and costs about a
quarter of what an EA does. An EA takes about 390 days to
finish and costs essentially a third of what an EIS does. So,
you always have these scales of efficiencies. So, my answer to
you is that we use the best tools we have, whether it is things
we have created ourselves or from Congress, to try to hit the
most work we can with the resources we have.
Mr. Tiffany. If you had the ability to expand beyond 3,000
acres for CEs, might you use that in some projects?
Mr. French. If we had authorities that were greater than
our current limits, we could make it through ESA and other
pieces and local collaboration, then of course we would use
those.
Mr. Tiffany. What are some of the primary reasons projects
today require an EA or an EIS, as opposed to a CE?
I mean, what are a couple of primary reasons that----
Mr. French. The most significant piece is that the larger
the project that you want to authorize, you are usually outside
the scope of a categorical exclusion.
Mr. Tiffany. So, larger than 3,000 acres?
Mr. French. Yes. If we are doing a 10,000, 20,000, 30,000-
acre project. And the likelihood that you start to have
potentially significant issues arise, whether that is
compliance with the National Heritage Protection Act, or ESA,
or even your local community that is looking at this through a
different lens. Those are the sorts of things that start to
occur with larger projects.
Mr. Tiffany. What would be the impact if there is not a
permanent solution to the Cottonwood Decision? Let me start,
can I preface it with a question?
Mr. French. Sure.
Mr. Tiffany. Has the Cottonwood Decision been a major
impediment in getting some projects done?
Mr. French. It increases our costs on a per-unit basis in
places where we are authorizing projects so that we are
guarding ourselves against litigation. And it creates risk.
Mr. Tiffany. Significantly?
Mr. French. What is that?
Mr. Tiffany. Does it significantly increase costs?
Mr. French. Yes, sure.
Mr. Tiffany. Give me a project, I mean, did it increase it
by 25 percent or 50 percent? Do you have a----
Mr. French. OK, here is the way I would say it. We can do a
project in one part of the country where we know that the risk
for litigation under, like, a Cottonwood-type approach but it
is all litigation will generally be three to four times less on
the environmental compliance side because of the way we do the
analysis. And unit costs are probably around half, sometimes
more.
I mean, that is the business that I work within. And I am
not here to say one way is right or another. I just know if I
do a project here, it is going to cost me this. And if I do it
over here, it is going to cost me a different amount.
Mr. Tiffany. So, I just want to hone in, a final question
here on unit costs. You said it is up to half. What do you mean
by unit cost?
For being able to remove that wood, is it a 50 percent
increase in cost, or does it double it?
Mr. French. It doubles it.
Mr. Tiffany. So, it doubles the cost of removal as a result
of increased litigation.
Mr. French. The level of analysis that we are going to do
on an acre in one of those places will be much higher than we
may in other places, and that increases those unit costs, sure.
Mr. Tiffany. And you have seen an example where it has been
double. Is that accurate?
Mr. French. Yes.
Mr. Tiffany. OK. Well, very good. I am way over time, and I
appreciate you taking the time, Mr. French, to come here today
and testify. It is always good to have you here and provide
information from the Forest Service perspective. Thank you for
your answers.
Mr. French. You are welcome. Thank you.
Mr. Tiffany. OK. We will now move on to our next panel. I
would like to thank the Deputy Chief for his testimony.
While the Clerk resets our witness table, I will remind the
witnesses that under Committee Rules, they must limit their
oral statements to 5 minutes, but their entire statements will
appear in the hearing record.
I would also like to remind our witnesses of the timing
lights, which will turn red at the end of your 5-minute
statement, and to please remember to turn on your microphone.
As with the previous panel, I will allow all witnesses to
testify before Member questioning.
[Pause.]
Mr. Tiffany. Well, it is great to have our next panel here,
and first I am going to introduce Hannah Downey, the Policy
Director at the Property and Environmental Research Center.
Ms. Downey, it is good to have you here. You have 5
minutes.
STATEMENT OF HANNAH DOWNEY, POLICY DIRECTOR, PROPERTY AND
ENVIRONMENT RESEARCH CENTER, BOZEMAN, MONTANA
Ms. Downey. Excellent. Chairman Tiffany, Chairman
Westerman, thank you so much for the opportunity to participate
in today's hearing on forest conservation and how the
discussion draft from Chairman Westerman can help us fix
America's forests. My name is Hannah Downey, and I am the
Policy Director at the Property and Environment Research
Center.
When I was 14, my family was on a backpacking trip in the
mountains of Montana when we came around a bend in the trail,
only to see flames racing up the canyon towards us. It was a
terrifying journey evacuating to safety, and I quickly learned
the power and destruction of an out-of-control wildfire. I am,
unfortunately, just one of many with similar stories.
Today, I am proud to be able to promote policies that help
improve the situation through my work at PERC. PERC is the
national leader in market solutions for conservation, and
enhancing forest health is a primary focus of our work,
especially the obstacles to collaborative forest restoration
and the expanded use of prescribed burns. In 2021, we authored
this report, ``Fix America's Forests,'' looking at policy
reforms to help restore our national forests and tackle the
wildfire crisis. Many of the ideas we looked at then are
included in the proposal we are discussing today. PERC is non-
profit, non-partisan, and we are proudly based in Bozeman,
Montana.
This discussion draft will help address the wildfire
problem through reforms that would make it easier to do
restoration work, limit disruptions from litigation, and expand
capacity through partnerships.
Large and destructive wildfires are, unfortunately,
becoming more common, and it is really an environmental
problem. They destroy wildlife habitat, pollute our water and
air, emit carbon dioxide, and shut down recreation. Although
several factors contribute to this trend, the declining health
of our forests is the primary cause. A lack of forest
restoration and decades of fire suppression have led us to a
situation where we have excessive forest density and a build-up
of fuels to a point where an area larger than the state of
California urgently needs our help.
The good news is that fuels reduction treatments, including
mechanical thinning and prescribed burns, are effective at
restoring forest health and reducing fire risk, and there is
broad agreement on these positive impacts. A new meta-analysis
published in the journal ``Forest Ecology and Management,'' for
example, found that combining mechanical thinning and
prescribed burns reduces the severity of subsequent wildfires
by 62 to 72 percent.
To tackle the wildfire crisis, PERC supports the Biden
administration's ambitious strategy to significantly increase
its forest restoration work over the next decade. But if the
good news is that we know what we need to do to actually fix
our forests, the bad news is that doing that work is a long,
complicated process.
First, before any chainsaws or drip torches can touch a
Federal forest, a restoration project must navigate significant
bureaucratic obstacles such as the NEPA review. Although well-
intentioned, it takes years for a project to get off the
ground. According to PERC researchers, once the Forest Service
initiates an environmental review process, it takes over 5
years to actually begin a mechanical treatment on the ground
and over 7 years for a prescribed burn. We don't have that
time. This proposal from Chairman Westerman would help
alleviate these delays for the highest-risk firesheds by
applying categorical exclusions and emergency authorizations.
However, if a project is litigated, this adds on even more
years of delay. While litigation does play an important role in
holding the government accountable, it can also be disruptive
and warp incentives. Disruptive litigation has tied the Forest
Service in a Gordian Knot, and consumes valuable time and
funding that should instead be spent making a positive
difference in our forests. Several common-sense solutions
offered in this proposal, like fixing the Cottonwood Decision,
improving injunction standards, and establishing a pilot
arbitration program could help alleviate these barriers.
Finally, even when forest restoration projects do make it
through this approval process, the capacity to implement work
on the ground still remains a challenge. States, counties,
tribes, and private partners are all ready and willing to help
fix this problem. This proposal contains several opportunities
to expand on successful models to get more work done with
partners by extending Good Neighbor Authority revenue retention
to counties and tribes, and increasing stewardship contracts to
up to 20 years.
We need to get to the root of the wildfire crisis and get
more restoration work done in our forests. This discussion
draft has good tools Congress should act on to help fix
America's forests.
Thank you for the opportunity to testify, and I welcome any
questions.
[The prepared statement of Ms. Downey follows:]
Prepared Statement of Hannah Downey, Policy Director, Property and
Environment Research Center (PERC)
Main Points
America's wildfire crisis is getting worse. There is broad
agreement that increasing active forest restoration
efforts, such as mechanical thinning and prescribed
burning, will improve ecosystem health and reduce the risk
of catastrophic wildfires.
Red tape and litigation encourage conflict and create
barriers to forest restoration activities. Policy change is
needed to advance positive work.
Partnerships with the private sector, states, counties,
and tribal nations can help overcome federal capacity
challenges to forest restoration.
Introduction
Chairman Tiffany, Ranking Member Neguse, and members of the
committee, thank you for the opportunity to participate in this
important discussion on forest conservation and how this proposal from
Chairman Westerman can remove obstacles and bring in additional
resources to improve the pace and scale of forest restoration.
My name is Hannah Downey, and I am the policy director 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 projects,
PERC explores how aligning incentives for environmental stewardship
produces sustainable outcomes for land, water, and wildlife. Enhancing
forest health has been a primary focus of PERC's research and policy
efforts, with recent major reports on how to overcome obstacles to
collaborative forest restoration and expand the use of prescribed
fire.\1\ Founded in 1980, PERC is nonprofit, nonpartisan, and proudly
based in Bozeman, Montana.
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\1\ 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).
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Beyond my professional work, my connection to today's topic is
deeply personal. As a young girl, I'll never forget the fear of being
forced to evacuate a family backpacking trip in Montana's Absaroka-
Beartooth Wilderness as an out-of-control wildfire raced toward us.
Since then, I married a wildland firefighter and have prayed for my
husband and his fire crew as they battled blazes around the United
States. I have seen members of my community lose their homes to a
devastating wildfire. And as a resident of Bozeman, Montana--which,
like many western cities, draws its water from national forest lands
with high risk of catastrophic fire--I live with the sobering
realization each summer that our community's water supply would likely
be cut off in the event of a fire in the nearby watershed.
The reality is that large and destructive wildfires are becoming
more common across the West. Although several factors contribute to
this trend, the declining health of our nation's forests is a primary
cause.\2\ America's 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 outbreaks, and less
resilient to climate change and drought.\3\ Yet the Forest Service has
struggled to treat more than a few million of those acres per year on
average.\4\
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\2\ Among the four factors driving fire severity in the western
United States, live fuel accounted for an estimated 53.1 percent of
average relative influence, fire weather accounted for 22.9 percent,
climate accounted for 13.7 percent, and topography accounted for 10.3
percent. 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).
\3\ See Forest Service, Forest Products Modernization (last visited
Mar. 17, 2023). See also Fix America's Forests, supra n. 1 at 4-16.
\4\ See Deputy Chief Christopher French, ``Testimony Concerning
Instrastructure Needs, Western Water and Public Lands, and the
Discussion Draft of the Energy Infrastructure Act'' (June 24, 2021).
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PERC supports the Biden administration's ambitious strategy to
significantly increase its forest restoration work over the next
decade, including the goal of treating an additional 20 million acres
of national forest above the business-as-usual rate.\5\ Meeting that
critical target will require greater efficiency in the years-long
process of developing, approving, and implementing forest restoration
projects.\6\ PERC proposed reforms to restore national forests and
tackle the wildfire crisis in the 2021 report Fix America's Forests.
This discussion draft incorporates several of those recommended reforms
that would make it easier to do restoration work in high-risk
firesheds, limit disruptions from litigation, and expand capacity
through partnerships. Now is the time to implement proactive policies
that increase the pace and scale of forest restoration.
---------------------------------------------------------------------------
\5\ See Forest Service, Confronting the Wildfire Crisis: A Strategy
for Protecting Communities and Improving Resilience in America's
Forests (2022).
\6\ 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'').
---------------------------------------------------------------------------
Getting to the Root of the Wildfire Crisis
According to the Forest Service, about 40 percent of the acres in
the national forest system are in need of restoration.\7\ When the
Department of the Interior's 54-million-acre restoration backlog is
added in,\8\ the total area of federal land that needs urgent help is
larger than the state of California (See appendix figure 1). 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 of 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.\9\
---------------------------------------------------------------------------
\7\ See Fix America's Forests, supra n. 1 at 4. The Forest Service
manages 193 million acres of land, 80 million of which are in need of
restoration, according to the agency.
\8\ GAO, Wildland Fire: Federal Agencies' Efforts to Reduce
Wildland Fuels and Lower Risk to Communities and Ecosystems (2019).
\9\ See Fix America's Forests n. 1 at 8-13.
---------------------------------------------------------------------------
As with any complex phenomenon, no single factor fully explains
declining forest health or the wildfire crisis. A changing climate has
increased the risk of drought and extended the West's ``wildfire
season.'' \10\ A massive jump in the number of people living near or
recreating in forests has increased opportunities for human-caused
ignitions.\11\ But the largest factor, according to a study by Forest
Service scientists, is excessive forest density and the buildup of
fuels due to a lack of forest management and decades of fire
suppression.\12\
---------------------------------------------------------------------------
\10\ See Burn Back Better, supra n. 1 at 4.
\11\ See id.
\12\ See High-Severity Fire: Evaluating Its Key Drivers and Mapping
Its Probability Across Western US Forests, supra n. 2.
---------------------------------------------------------------------------
Fire is nothing new to western forests, which were traditionally
adapted to flames due to climate, terrain, and Indigenous tribes' use
of controlled fire for millennia.\13\ 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.\14\ Even mighty giant sequoias, one of the most fire-adapted
tree species, are at risk. The National Park Service estimates that 10-
20 percent of the world's remaining sequoias have been killed by
wildfires since 2020.\15\ Wildfire emissions are also a major climate
concern. California's record wildfire year in 2020, for example,
released twice the amount of carbon emissions than the state had cut
between 2003 and 2019.\16\
---------------------------------------------------------------------------
\13\ See Burn Back Better, supra n. 1 at 4.
\14\ See Fix America's Forests, supra n. 1 at 8--10.
\15\ See Dr. Kristen Shive, et al., 2021 Fire Season Impacts to
Giant Sequoias (last visited Mar. 19, 2023).
\16\ Michael Jerrett, Amir S. Jina, Miriam E. Marlier, Up in smoke:
California's greenhouse gas reductions could be wiped out by 2020
wildfires, 310 Env'tl Pollution 119888 (2022).
---------------------------------------------------------------------------
In 2015, for the first time, the United States 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. Since then, we have passed that milestone twice more.\17\
---------------------------------------------------------------------------
\17\ National Interagency Fire Center, ``Total Wildland Fires and
Acres (1983-2022).''
---------------------------------------------------------------------------
And due to growing populations near forests, modern fires threaten
communities and property in ways not seen before.\18\ Nearly 100,000
structures have burned in wildfires since 2005, with two-thirds of that
destruction occurring since 2017.\19\ California's Camp Fire in 2018,
for example, was the deadliest and most destructive in that state's
history, killing 85 people and destroying most of the town of Paradise
in less than 24 hours.\20\ In my home of Bozeman, our city's entire
water source would be depleted in just three days if our neighboring
forests went up in flames. For decades, the watershed has been at high
risk of severe wildfire. Yet, despite this risk, the collaboratively
designed Bozeman Municipal Watershed Project was tangled in red tape
and litigation for 15 years before restoration activities could finally
begin several years ago.
---------------------------------------------------------------------------
\18\ See Burn Back Better, supra n. 1 at 4.
\19\ Headwaters Economics, Wildfires Destroy Thousands of
Structures Each Year (2022).
\20\ National Institute of Standards & Technology, New Timeline of
Deadliest California Wildfire Could Guide Lifesaving Research and
Action (Feb. 8, 2021).
---------------------------------------------------------------------------
Forest restoration efforts, including mechanical thinning and
prescribed fire, are urgently needed to reduce wildfire damage and
promote forest resilience. A new meta-analysis published in the journal
Forest Ecology and Management found that combining mechanical thinning
with prescribed burns reduces the severity of subsequent wildfires in
an area by 62-72 percent.\21\ Importantly, the efficacy of these
treatments did not vary among forest types assessed in the study and
was high across a range of fire weather conditions. The effectiveness
of these tools was demonstrated in 2021 during Oregon's Bootleg Fire,
which ultimately burned more than 400,000 acres.\22\ 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 (see appendix figure 2). Reports also
indicated that an area where scheduled prescribed burns had been
delayed suffered more damage than areas where treatments had been
completed.\23\
---------------------------------------------------------------------------
\21\ Kimberley Davis, et. al., Tamm Review: A Meta-Analysis of
Thinning, Prescribed Fire, and Wildfire Effects on Subsequent Wildfire
Severity in Conifer Dominated Forests of the Western US, 561 Forest
Ecology and Management 121885 (June 2024).
\22\ See Burn Back Better, supra n. 1 at 5.
\23\ 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. In 2023, the agency completed more hazardous fuels
work than any prior year in its history, reporting that it treated more
than 4.3 million acres.\24\ The Forest Service's method of tracking and
reporting these acres, however, is prone to misinterpretation that
overstates the agency's progress at addressing the restoration
backlog.\25\ For example, the 4.3 million acres of restoration work
reported last year does not necessarily mean that the restoration
backlog has been reduced by 4.3 million acres. Because an area may
require multiple treatments over several years, the Forest Service's
method of tracking and reporting this information can result in
substantial double-counting. While PERC applauds the Forest Service's
commitment to increasing forest restoration, we must continue to
dramatically increase the pace and scale of this work to make progress
against the backlog.
---------------------------------------------------------------------------
\24\ U.S. Forest Service, USDA Forest Service celebrates historic
investments in 2023, (January 23, 2024).
\25\ See Accurately Counting Risk Elimination Solutions (ACRES)
Act, H.R. 1567. See also Adiel Kaplan & Monica Hersher, ``The Forest
Service is Overstating its Wildfire Prevention Progress to Congress
Despite Decades of Warnings Not To,'' NBC News (August 9, 2022); GAO,
Wildland Fire Management: Additional Actions Required to Better
Identify and Prioritize Lands Needing Fuels Reduction (2003).
---------------------------------------------------------------------------
Overcoming Red Tape
While the good news is that we know how to reduce wildfire risk
through forest restoration activities, the bad news is it is
exceptionally difficult to get that work done on the ground and at the
scale needed. Before any chainsaws or drip torches can touch a federal
forest, a restoration project must navigate complex bureaucratic
procedures, including review under the National Environmental Policy
Act (NEPA). Depending on the extent of anticipated impacts, NEPA may
require the Forest Service to analyze a project through, in order of
increasing complexity and expense, a categorical exclusion,
environmental assessment, or environmental impact statement. The agency
may also need to develop a range of alternatives to the project and
analyze their impacts as well.
While well-intentioned, extensive NEPA reviews can significantly
increase project costs and inject substantial delays. In PERC's recent
policy report Does Environmental Review Worsen the Wildfire Crisis?,
researchers compiled and analyzed a novel NEPA dataset and found that
the average time to conduct an environmental impact statement is over
2.5 years.\26\ Even a categorical exclusion, which is designed to
exempt a project from stringent environmental review, takes an average
of nine months to complete.\27\
---------------------------------------------------------------------------
\26\ Eric Edwards and Sara Sutherland, Does Environmental Review
Worsen the Wildfire Crisis? How Environmental Analysis Delays Fuel
Treatment Projects, PERC Policy Brief (June 2022).
\27\ Ibid.
---------------------------------------------------------------------------
NEPA delays contribute substantially to an overall approval and
implementation process that holds up projects for many years. According
to PERC researchers, once the Forest Service initiates the
environmental review process, it takes an average of 3.6 years to
actually begin a mechanical treatment on the ground and 4.7 years to
begin a prescribed burn--and those numbers increase to 5.3 years and
7.2 years, respectively, if an environmental impact statement is
required (see appendix figure 3).\28\ If a project is litigated, that
adds on another two years, on average. Given the time it takes to
conduct environmental reviews and implement fuel treatments, it is
unlikely that the Forest Service will be able to achieve its goal of
treating an additional 20 million acres over the next 10 years.
---------------------------------------------------------------------------
\28\ Ibid.
---------------------------------------------------------------------------
Evaluating the costs associated with NEPA compliance is challenging
largely because, similar to many other federal agencies, the Forest
Service does not routinely track or report the associated costs and
personnel time.\29\
---------------------------------------------------------------------------
\29\ Katie Hoover & Anne Riddle, National Forest System Management:
Overview and Issues for Congress, Congressional Research Service (May
18, 2023).
---------------------------------------------------------------------------
The Forest Service has, however, historically identified
administrative process barriers as a major factor holding up forest
restoration goals. As a 2002 Forest Service report on The Process
Predicament described it, ``Even noncontroversial projects often
proceed at a snail's pace.'' \30\ In 2022, the Forest Service likewise
concluded that environmental review processes must be streamlined to
give the agency more tools to use prescribed fire to protect forests
and wildlife habitat.\31\
---------------------------------------------------------------------------
\30\ U.S. Forest Service, The Process Predicament: How Statutory,
Regulatory, and Administrative Factors Affect National Forest
Management (2002).
\31\ U.S. Forest Service, Nat'l Prescribed Fire Program Review
(2022).
---------------------------------------------------------------------------
Improving the Process
The current environmental review process delays needed restoration
projects and is often further delayed by litigation. Several common
sense solutions offered in Chairman Westerman's proposal can help
alleviate these barriers.
Make Categorical Exclusions Easier to Apply
One approach to reduce NEPA burdens is to use categorical
exclusions to exempt a forest restoration project from rigorous
environmental review. Under this proposal from Chairman Westerman,
projects in the top 20 percent of riskiest firesheds would be
categorically excluded from NEPA analysis, expediting needed
restoration activities in the areas that need it most. Additionally,
projects in these high-risk firesheds would be included under section
40807(d) of the Infrastructure Investment and Jobs Act (16 U.S.C.
6592c(d)), allowing them to move forward as emergency actions under
NEPA and the Endangered Species Act. There are major environmental
risks to not moving needed forest restoration projects along quickly,
and these improvements will help get that work done in the highest-risk
areas.
Fix Cottonwood
Chairman Westerman's proposal would also address the problems
created by the Ninth Circuit's decision in Cottonwood Environmental Law
Center v. Forest Service.\32\ When the decision was issued, the Obama
administration warned that it threatened to ``cripple the Forest
Service.'' \33\ A temporary legislative fix forestalled that result for
a while, but it expired last year. As a result, the Biden
administration has reported that restoration projects in 87 national
forests could be upended by litigation under Cottonwood, and the Forest
Service's only option could be to spend millions of dollars and a
decade on duplicative and unnecessary paperwork rather than working in
the field to restore forests.\34\ Simply put, Cottonwood harms forests
and wildlife and only benefits litigants. That's why a diverse
coalition of conservation groups support a permanent Cottonwood fix and
why the idea has drawn significant, bipartisan support.\35\
---------------------------------------------------------------------------
\32\ 789 F.3d 1075 (9th Cir. 2015).
\33\ See Pet. for Cert., U.S. Forest Serv. v. Cottonwood, No. 15-
1387 (filed June 10, 2016).
\34\ See Forest Serv., Deputy Chief French testimony on land bills
(March 24, 2023).
\35\ See Jonathan Wood, Prepared Statement before the U.S. House
Natural Resources Committee, Subcommittee on Federal Lands--Hearing on
H.R. 200 (March 23, 2023).
---------------------------------------------------------------------------
Make Litigation Less Disruptive
While litigation plays an important role in holding the government
accountable, it can also be disruptive and warp incentives. It can
encourage conflict rather than collaboration, especially where the
government pays its opponents' attorney's fees.\36\ And it can elevate
relatively minor scientific or policy disagreements over broader
considerations of forest health and the public interest. Litigation has
tied the Forest Service in what former agency chief Jack Ward Thomas
described as a ``Gordian Knot'' by limiting the agency's ability to
actively restore national forests.\37\
---------------------------------------------------------------------------
\36\ See, e.g., Habitat Education Center, Inc. v. U.S. Forest
Service, No. 07-cv-578, 9 (E.D. WI 2019) (describing a litigant's NEPA
claims as ``much closer to flyspecking than holistic analysis.
Plaintiffs have identified a host of technical issues, but have painted
no overall picture that leaves me with the firm conviction that the
environmental impact statement has not adequately fostered informed
decision-making and informed public participation'').
\37\ See Jack Ward Thomas, The Future of the National Forests: Who
Will Answer an Uncertain Trumpet? (2011).
---------------------------------------------------------------------------
Forest restoration projects are substantially more likely to be
litigated than other Forest Service projects. But the adverse
consequences of litigation are not limited to projects that end up
before the courts. Forest Service personnel report that the mere risk
of litigation can affect project analysis, costs, and delays.\38\
---------------------------------------------------------------------------
\38\ See Michael J. Mortimer et al., Environmental and Social
Risks: Defensive National Environmental Policy Act in the U.S. Forest
Service, Journal of Forestry (2011)
---------------------------------------------------------------------------
For some Forest Service regions or national forest units,
litigation is an ever-present consideration. Litigation is a
particularly disruptive factor for national forests within the Ninth
Circuit Court of Appeals--which has jurisdiction over the West Coast
states as well as Montana, Idaho, Nevada, and Arizona--and near
communities with litigious local or special interest groups (see
Appendix figure 4).\39\ But even with litigation concentrated in parts
of the country, the expenses, delays, and uncertainty take up limited
resources that could instead be spent on restoration work.
---------------------------------------------------------------------------
\39\ From 2007 to 2017, 188 lawsuits were filed challenging forest
restoration projects. FOIA Data. 85 percent of these cases were filed
in district courts whose decisions are appealable to the Ninth Circuit,
a court generally perceived as more favorable to environmental
litigants. Some degree of Ninth Circuit bias is to be expected due to
the large area over which it has jurisdiction and the number of forests
that region contains. However, the distribution of cases among Regions
3 and 4, which straddle the Ninth and Tenth Circuits, suggests that the
large number of cases in the Ninth Circuit is more than mere
coincidence. Only 16 percent of the cases challenging projects in
Regions 3 and 4 were filed in the Tenth Circuit's jurisdiction. In
fact, nearly half of these cases were filed in only two districts
within the Ninth Circuit: the District of Montana (53 cases) and the
Eastern District of California (35 cases).
---------------------------------------------------------------------------
Congress should help the Forest Service and partners avoid these
downsides, without sacrificing the accountability litigation can
provide, through reforms that provide greater transparency and
predictability. PERC is pleased to see this legislative proposal
include a fix to the Ninth Circuit's incredibly lenient standard for
enjoining forest restoration work, by limiting this extraordinary
relief to situations where a court has determined a project is likely
unlawful. It would also prevent open-ended injunctions, by limiting
them to 30 days with discretion for courts to renew them. It would
require challenges to projects to be filed more quickly so that
litigation risks don't hang over projects for years. And it would also
establish a pilot arbitration program, an alternative approach to
dispute resolution that has proven faster, cheaper, and more efficient
than litigation in other contexts.
The proposal also shields the Forest Service's use of categorical
exclusions from litigation. PERC agrees that categorical exclusions are
an essential tool and that litigation has needlessly interfered with
their use. The Ninth Circuit, for instance, recently rejected several
attempts by interest groups to twist the meaning of some categorical
exclusions to dramatically narrow their scope to achieve the interest
groups' political ends.\40\ Subjecting projects approved under a
categorical exclusion to years of uncertainty and litigation undermines
the purpose of such exclusions. However, we have some concern that the
proposed exemption is written too broadly and would like to work with
the Committee on how to sharpen the language to target truly abusive
and dilatory litigation.
---------------------------------------------------------------------------
\40\ See, e.g., Mountain Communities for Fire Safety v. Elliott,
20-55660 (9th Cir. Feb. 4, 2022) (rejecting activists' invitation to
interpret the ``timber stand improvement'' CE to implicitly forbid the
removal of any commercially valuable timber, even if necessary for
forest health or to reduce wildfire risks).
---------------------------------------------------------------------------
Increasing Capacity Through Partnerships
Even when forest restoration projects make it through the approval
process, the capacity to implement work on the ground remains a
challenge. Chairman Westerman's proposal contains several opportunities
to expand work done with partners.
Expand Good Neighbor Authority
Good Neighbor Authority is a tool that allows state, tribal, and
county partners to carry out forest restoration projects on federal
lands. Partners' roles can include planning and preparation as well as
the restoration work itself. Congress first authorized a Good Neighbor
Authority pilot in Colorado in 2001, and since then the program has
been expanded nationally. In return for their efforts, state partners
can receive a share of revenues that result from selling materials
harvested or compensation directly from the federal government--
offsetting the costs of the work and sometimes even funding additional
forest restoration work.\41\
---------------------------------------------------------------------------
\41\ See Anne Riddle, The Good Neighbor Authority on Federal Lands,
Congressional Research Service (January 11, 2023).
---------------------------------------------------------------------------
Counties and tribes have also been allowed to enter into Good
Neighbor agreements since 2018. But those entities have so far used the
program only a handful of times in the West. The reason why this
program has worked better for states than tribes and counties is that
tribes and counties are prohibited from retaining timber revenues,
which decreases their incentive to participate in the program.\42\
Chairman Westerman's proposal would make Good Neighbor Authority more
inclusive by granting counties and tribes the legal authority to keep
timber revenues, which will not only treat those partners as ``full''
neighbors but also make it easier to harness their expertise in
conducting forest treatments.
---------------------------------------------------------------------------
\42\ See Fix America's Forests, supra n.1.
---------------------------------------------------------------------------
Additionally, restrictions also specify that program funding can
only be spent on the federal lands within a Good Neighbor project
boundary, even if state or other lands are interspersed in the project
area. This proposal allows for Good Neighbor dollars to be spent across
the landscape, including state and private lands, which would help
improve the effectiveness of forest restoration treatments at a wider
scale. PERC has long advocated for these improvements to expand Good
Neighbor Authority, and these ideas are also captured in the Treating
Counties and Tribes as Good Neighbors Act (H.R. 1450) from Congressman
Fulcher, which passed the House with broad bipartisan support earlier
this Congress.\43\
---------------------------------------------------------------------------
\43\ Hannah Downey, ``Healthy Forests Make Good Neighbors,'' PERC
Reports (June 2022).
---------------------------------------------------------------------------
Allow for Longer-Term Contracts
The Forest Service regularly enters into agreements that establish
and direct mutually beneficial work with partners. Currently,
stewardship contracts established under Section 604 of the Healthy
Forests Restoration Act (16 U.S.C. 6591c) are generally limited to not
more than 10 years and can only go up to 20 years in areas of high fire
risk. In many cases, however, the general contract length of 10 years
may not be enough.
For ambitious, forest-wide restoration efforts--the sort of efforts
greatly needed--the Forest Service needs flexibility to enter contracts
of appropriate length and options to easily extend contracts,
especially where anticipated projects must navigate environmental
reviews and potential litigation. This is especially true where long-
term success depends on motivating the timber industry to build mill
capacity and markets for small-diameter timber products.\44\ The types
of investments that are necessary, such as new and retrofitted mills
and biomass plants, cost tens of millions of dollars, and such expenses
are unlikely to be recouped in only a few years. Extending stewardship
contracts for up to 20 years, as included in this proposal, is an
important step in increasing forest restoration capacity on federal
lands through private partners.
---------------------------------------------------------------------------
\44\ See Fix America's Forests, supra n.1.
---------------------------------------------------------------------------
Conclusion
Shrinking the 80-million-acre restoration backlog that fuels the
wildfire crisis is an urgent conservation challenge. Many of the
policies in this proposal from Chairman Westerman will help move more
needed projects through the approval process and bring in external
capacity to help get the work done. Congress should act now to adopt
these tools to help fix America's forests.
APPENDIX
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.eps__
Mr. Tiffany. Thank you so much for your testimony. I now
recognize Mr. Jim Parma. He is the Eastern Fiber Manager at
Bell Lumber & Pole, and President of the Federal Forest
Resource Coalition. Mr. Parma has a mill right in my district.
We really appreciate the investment that you have made in
Wisconsin. You have 5 minutes for your testimony.
STATEMENT OF JIM PARMA, EASTERN FIBER MANAGER, BELL LUMBER &
POLE, PRESIDENT, FEDERAL FOREST RESOURCE COALITION, NEW
BRIGHTON, MINNESOTA
Mr. Parma. Good morning. Thank you, Mr. Chairman and other
members of the Subcommittee that are here. Again, my name is
Jim Parma. I am the Eastern Fiber Manager for Bell Lumber &
Pole.
Bell is a family-owned business. It is in its fifth
generation. It started in 1909. Our company is known for wood
we have produced into wood utility poles and other products
that have come from renewable forest resources. We have dozens
of yards spread throughout dozens of states, and treating
plants and other facilities in these states. Bell's mission
statement to radically love and influence lives, and along with
our corporate values of stewardship, excellence, and
entrepreneurial spirit, show our concern for the broader common
good.
I am a working forester. I cruise timber, I sign timber
sale contracts, I work on the ground, I oversee these timber
sales. I work with loggers to execute these timber sales with
the utmost respect and care for the environment.
I am also the current Chairman of the Federal Forest
Resource Coalition, Mr. Chairman, which is a nationwide non-
profit that represents purchasers of Forest Service and BLM
timber sales. Our members live and work closely in the
proximity of the 193 million-acre National Forest System, and
many, like Bell Lumber & Pole, are multi-generational and have
deep commitments to both the communities that we work in and
also the forests that support our livelihoods.
We appreciate the bipartisan efforts of this Committee to
streamline the management of our National Forest System, but I
would like to share a little bit about my experience and then
talk about how the discussion draft can help improve results on
the ground.
Again, I buy timber sale for the company. We manufacture
products that carry electricity and Internet service to every
corner of the country. To do this, I need to find quality trees
that meet our high standards so we can produce products that
have the strength and longevity that we need.
The National Forest System has an abundance of these kinds
of timber. Current forest plans call for far higher levels of
forest management than we are currently seeing. But our
companies' need for these wood fibers do not drive the
management of the national forest, forest plans do. These plans
allocate land to different uses and set standards for
management. These plans are crafted with both national and
local input, and focus on meeting goals beyond timber outputs,
including creating and maintaining habitat for imperiled
wildlife species.
The Ouachita National Forest in Arkansas is a prime example
of how timber sales can be used to create and maintain habitat.
As has been mentioned earlier, the red cockaded woodpecker,
once driven to almost near extinction by over-harvest, now
thrives on the Ouachita because of timber management. Bell
purchased timber sales that are designed to restore and
maintain this habitat that the red cockaded woodpecker lives on
and needs to survive.
Other wood customers in other regions also help to maintain
different habitat types. They do this for young forests for
grouse and golden winged warbler in lake states, and also for
reducing fire danger to protect Mexican spotted owl in New
Mexico and in Arizona.
We see need of projects that could take years to get
through the NEPA process, and then run into further delays as
the Forest Service faces legal challenges and administrative
objectives. The discussion we have today would make it easier
to implement these much-needed projects.
We particularly appreciate the Good Neighbor Authority's
stewardship contracting and litigation reforms found in this
draft. We urge you to consider similar legislation introduced
in the Senate that would further streamline the management of
the national forests outside of the already-designated
protected areas like wilderness and roadless areas.
Our industry is a tool to accomplish forest management
goals, from fuels reduction to habitat creation. With common-
sense reforms like these we are discussing today, we and
partners in the forests can do more, we can do better, and we
can do it faster.
I thank you for the opportunity to speak with you today,
and I will be happy to answer any of your questions.
[The prepared statement of Mr. Parma follows:]
Prepared Statement of Jim Parma, Eastern Fiber Resource Manager, Bell
Lumber & Pole and President, Federal Forest Resource Coalition
Mr. Chairman, Ranking Member Grijalva, and members of the
Committee, my name is Jim Parma and I am the Eastern Fiber Resource
Manager for Bell Lumber & Pole, a multi-generational, family run
company that manufactures utility poles from the renewable forest
resources of the U.S., including timber from National Forest System
lands across the country. Bell Pole has purchased Forest Service timber
sales from more NFS units in more Forest Service regions than any other
company, which provides us with a unique perspective on the current
challenges facing the Forest Service. Bell's mission statement is: To
Radically Love and Influence Lives, along with our corporate values of
Stewardship, Excellence, and Entrepreneurial Spirit show our concern
for the broader common good.
I am here today as President of the Federal Forest Resource
Coalition, a nation-wide, 501(c)(6) organization with members from the
panhandle of Florida to Southeast Alaska. Together, FFRC's membership
covers more than 650 companies in 38 states. FFRC members include
sawmills, plywood and panel producers, biomass energy facilities, and
the logging sector. In addition, we work with water authorities who
rely on healthy National Forests to produce sustainable water supplies
for major metro areas. Collectively, FFRC members and other purchasers
of Forest Service timber have spent over $900 million in the last five
years alone purchasing timber from the Forest Service.
Unfortunately, in recent years we've seen a decline in timber
outputs from the National Forest System, and these falling outputs have
directly contributed to mill closures in several states. While mills
close for a variety of reasons, lack of fiber supplies exacerbates and
accelerates the loss of management capacity near our National Forests.
Just last week, Neiman Enterprises cut a shift at their Spearfish,
South Dakota sawmill. That mill, like many others that have shut down
this year, was highly dependent on National Forest Timber. My fellow
FFRC board member, Jim Neiman, said that but for the lack of supplies
from the Black Hills National Forest, the company would not have
reduced their capacity at the Spearfish mill.
We appreciate the leadership the Natural Resources Committee has
demonstrated on forest management issues. With a trained forester and
engineer as Chairman, this committee is poised to provide the kind of
clarity and reform the Forest Service badly needs. We are particularly
appreciative of legislation approved by the Committee to require
accurate accounting of hazardous fuels treatments, to require
aggressive fire suppression when burning conditions are extreme, and to
reform Good Neighbor Authority to encourage greater participation by
counties, tribes, and the States. These important measures are
incorporated into the discussion draft you provided us in advance of
today's hearing.
We believe that these provisions, when combined with additional
items like the fireshed provisions, reforms to Stewardship Contracting,
locally-led restoration, litigation reform, and expanded efforts to use
utility corridors as fuel breaks, are a good starting point for reforms
at the Forest Service. I will discuss each of these briefly.
Key Provisions:
Stewardship Contracting is one of the key authorities that has
allowed the Forest Service to begin making headway in improving forest
health, reducing fuel loads, and reinvesting in land management on the
National Forest System. Put simply, Stewardship contracts allow the
Forest Service to trade the value of timber for forest management and
restoration work, including prescribed burning, mastication of
hazardous fuels, installation of nest boxes for listed species, and
other beneficial practices. The use of Stewardship contracts has
expanded over the years to the point where last year almost one third
of all Forest Service timber volume sold last year was accomplished
through Stewardship Contracts. Currently, Stewardship Contracting
authority provides for seven ``land management goals'' which include
reintroduction of prescribed fire, mechanical removal of hazardous
fuels, and improvement of wildlife habitat.
The discussion draft would add an eighth, co-equal goal of
``retaining and expanding forest products industry infrastructure'' to
the program. Since Stewardship Contracting was first pilot tested in
the 1990s, we've seen significant reductions in industry capacity,
particularly near National Forest System lands where erratic or
unreliable timber supplies make running wood using facilities
difficult. We have also watched as the Forest Service has struggled to
attract new investments in wood using industries--particularly in
Arizona where the Forest Service has invested significant resources in
hazardous fuels reduction. This has taught us that lack of markets for
wood drives up land management costs, reduces receipts to the agency,
and limits the ability of the Forest Service to expand treatments to
additional acres. The modest reform of adding retention of industry
infrastructure--along with 20-year contracts--will help ensure that the
Forest Service offers Stewardship contracting opportunities to mills
which can help drive down management costs while creating jobs in rural
areas.
We also strongly support the proposed changes to small timber sales
and locally led conservation. projects This modest reform would
increase the dollar value of timber sales that can sold directly, from
the $10,000 to $55,000. The $10,000 figure was written into the
National Forest Management Act in 1976, with no provision for inflation
adjustment. The discussion draft would correct this oversight by
adjusting that figure to $55,000, roughly the value of the 1976 figure
adjusted for inflation, while requiring annual inflation adjustments
thereafter. We would encourage the committee to consider expanding the
``fireshed management projects'' authority to cover more areas of the
National Forest System, including any areas designated as insect and
disease treatment areas, or areas considered at high risk of wildfires.
The proposed litigation reforms are also badly needed. According to
data provided to us by the Forest Service, over 1.8 Billion Board Feet
of Forest Service timber was under litigation in the fall of last year.
That's more than half a year's worth of timber sales in an average
year. The threat of litigation forces the Forest Service to engage in
needlessly detailed analysis of modest timber projects, which take
place on lands designated under current forest plans as being suitable
for timber production. The requirements in the discussion draft still
allow project level litigation, but also ensures that needed management
can take place in a timely fashion.
We particularly applaud the provisions clarifying that there is no
need for additional consultation on forest plans, particularly if the
project itself has not raised any concerns about listed species. As you
are aware, this misguided case law was opposed by the Obama
Administration, which appealed it to the Supreme Court. Congress should
take the initiative and make these reforms law to free up agency
resources and prevent absurd results. One such result was the National
Forests in New Mexico having their project level fuels reduction work
halted so the Forest Service could reconsult with the Fish & Wildlife
Service on plans that were, in some cases, well over 30 years old. This
delay took place while those plans were under revision. Once the
injunction was resolved, the Forest Service went ahead with a
prescribed burn under red flag conditions, which subsequently exploded
into the Hermit's Peak Fire--the largest fire in New Mexico history.
The provisions encouraging the use of utility corridors as
firebreaks is very positive, and in our view ought to be expanded.
Significant research and experience show that fuel breaks, including
shaded fuel breaks, can be extremely effective in reducing fire spread
and protecting wildland firefighters and adjacent communities. FFRC has
supported similar provisions including the fuel break categorical
exclusion provided in the Infrastructure Act. We look forward to
working with the Committee to encourage broader use of this and other
legislatively-created categorical exclusions.
We are also strongly supportive of Good Neighbor Authority
provisions in the Discussion Draft. Allowing the retention of some
receipts under GNA by agency partners, including tribes, counties, and
states, will encourage further participation in and investment in Good
Neighbor programs at those levels. We note that these reforms have
received bipartisan support in both this Committee and in the House
Agriculture Committee.
What This Bill Doesn't Do:
It is critical to note what this bill doesn't do, in addition to
the modest but important reforms mentioned above. This legislation does
not authorize timber harvest in the over 36 million acres of designated
Wilderness on the National Forest System. It does not open any of the
58 million acres of Inventoried Roadless Areas to timber harvest. It
doesn't open the over 17 million acres of Wild & Scenic River Corridors
to timber harvest. The timber industry that relies on National Forest
timber is fine with this--we would like to see the roughly 24 percent
of the National Forests designated as ``suited for timber production''
managed to produce economically viable supplies of timber. We can do
that, while creating critically important wildlife habitat, reducing
fire danger, and generating additional receipts to pay for additional
land management activities like prescribed burning.
This legislation also does not waive a single Forest Plan Standard
or Guideline. These provisions are developed through a locally-led
planning process that allows for broad public input but is driven by
forest managers and the communities closest to the resource. It doesn't
waive any habitat protections required by statute or regulation. The
Forest Service must manage within those constraints, and we believe
there is far more work that could be accomplished with the targeted
reforms in the current discussion draft.
Additional Reforms:
The last two decades have taught America many bitter lessons about
forest management and wildfires. After precipitous declines in timber
harvest from the National Forests during the 1990's, we've now seen the
results of under-managed forests combined with climate change and
increased settlement in the Wildland Urban Interface; Overstocked
forests are vulnerable to catastrophic fire, which destroys wildlife
habitat, damages watersheds, and threatens communities. The result is
significant carbon emissions and major challenges to reforestation.
While Congress has provided significant new authorities and funding to
address the wildfire challenges, there are additional proactive reforms
Congress can adopt that would clarify the Forest Service's multiple use
mandate, reduce the need for repetitive and exhaustive NEPA, and
further reduce frivolous litigation.
We would urge the committee to review the bipartisan Promoting
Effective Forest Management Act, introduced in the Senate by Energy &
Natural Resources Chairman Joe Manchin (D-WV) and Ranking Member John
Barrasso. That bill would, among other things, set numeric targets for
mechanical thinning at the Forest Service, require the use of expedited
authorities on some acres, and encourage the Forest Service to promote
staff in place. We also commend to your attention the Expediting Forest
Restoration and Recovery Act introduced by Sen. John Thune. This bill
requires, rather than allows, the Forest Service to use expedited NEPA
on acres designated at high risk to fire, insects, or disease, and it
expands the number of acres eligible for expedited NEPA.
Conclusion:
The National Forest System is a conservation achievement of which
all Americans should be proud. More than half of the National Forests
are already in low to no management designations like Wilderness Areas,
Wild & Scenic River corridors, and Inventoried Roadless Areas. Less
than 28 percent of the National Forest System is designated as
``suitable for timber production.'' Yet with all of these restrictions,
management on National Forests remains a daunting challenge.
Congress should consider simplifying the forest planning process,
providing additional resources for forest plan monitoring, and making
it clear that they expect timber management to take place on suited
acres. The discussion draft before you today makes significant strides
in reducing litigation and ensuring accountability. We urge you to
think big and consider these more fundamental reforms as well.
And while we recognize that this goes beyond your jurisdiction,
we'd be remiss if we did not point out that the appropriations process
has proven to be an active impediment to good forest management (and
much else besides). While Congress has the right to demand
accountability of the Forest Service, the legislative branch must also
take responsibility for clarifying the mission of the agency and
funding it in a timely manner.
On behalf of the more than 300,000 American who rely at least in
part on Forest Service timber for their livelihoods, I want to thank
you for the opportunity to appear before you today.
______
Mr. Tiffany. Thank you, Mr. Parma. I would now like to
introduce Dr. Kimiko Barrett, Wildfire Research and Policy Lead
at Headwaters Economics.
Dr. Barrett, you have 5 minutes.
STATEMENT OF KIMIKO BARRETT, WILDFIRE RESEARCH AND POLICY LEAD,
HEADWATERS ECONOMICS, BOZEMAN, MONTANA
Dr. Barrett. Thank you, Chairman Tiffany, Chairman
Westerman, and members of this Committee. I appreciate the
opportunity to provide perspective on the drafted legislation.
I am Dr. Kimiko Barrett, a wildfire researcher at
Headwaters Economics, a non-partisan, non-profit research
organization based in Montana. My job and the work we do at
Headwaters Economics is to ensure that people and communities
are better prepared for a future of increasing fire.
I also had the privilege of serving on the congressionally-
established Wildland Fire Mitigation and Management Commission.
My contributions to the Commission drew from my expertise in
risk reduction to neighborhoods and infrastructure, what we
call the ``built environment.'' The Commission report lays out
a roadmap of cross-cutting recommendations that Congress and
members of this Committee can help realize. In particular,
there are three overarching themes that I would like to
highlight.
First is to be proactive. We can build homes and
neighborhoods to safeguard communities before a wildfire
occurs. For far too long we have focused on managing wildfires
through suppression and hazardous fuels reduction while
overlooking the built environment. Yet, given the increasing
scale and severity of wildfire risk, suppression and landscape
treatments alone will not resolve this crisis.
In recommendation No. 1 the Commission advocates for
establishing a Community Wildfire Risk Reduction Program
involving interagency coordinating partnerships between the
Federal land management agencies and others with expertise in
hazard resiliency like FEMA, the U.S. Fire Administration, and
the National Institute of Standards and Technology. This
program would address the built environment gap in our wildfire
approach and provide critical resources to the communities who
need it most.
Importantly, it is worth noting that this model has been
adapted from a similar policy for mitigating earthquake
hazards, specifically the National Earthquake Hazard Reduction
Program. In other words, we do not need to reinvent the wheel.
Important lessons in program design from earthquake mitigation
can and should be applied for community wildfire risk
reduction.
The second theme I want to highlight is that we need
modernized tools for decision-making to help communities
quickly and effectively become better fire-adapted. The
Commission report calls for the creation of a multi-agency fire
environment center. Such a center would be governed by Federal
agencies with science and operational knowledge that would
build upon our nation's robust fire research and help integrate
currently fragmented data and technology into one seamless
platform. A fire environment center would improve decision-
making of risk reduction to both the built and the natural
environment.
The ability to analyze in real time wildfire conditions and
behavior is essential for enabling more fire on our landscapes
and reducing the fuels that threaten our communities. While it
is tempting to think that we can mandate suppression of all
fire, our national approach should reflect the understanding
that fire fosters both healthy ecosystems and reduces the risks
of future wildfires. Indeed, the Commission recommends
dramatically increasing the amount of beneficial fire on many
of our landscapes. Calls to return to a 24-hour suppression
policy supersede local decision, and are in direct opposition
to the Commission's recommendations.
Third, none of these visionary new approaches would be
possible without significant investments of dedicated funding.
Given the transboundary nature of fire, sustained support is
needed across multiple disciplines. No single entity or agency
can do this alone. If we are going to treat the wildfire crisis
like the national emergency that it is, consistent and
predictable funding is critical, especially to rural and
underserved communities most at risk.
In summary, to address the wildfire crisis we need to build
wildfire-resilient communities, use the best available science,
and make upfront investments to avoid costly long-term impacts.
The Wildfire Commission report provides the roadmap. We will
have to learn to live with wildfires in the wildlands, but that
does not mean we have to live with wildfire disasters in our
communities.
Thank you very much for your time and urgency to this
issue.
[The prepared statement of Dr. Barrett follows:]
Prepared Statement of Testimony of Dr. Kimiko Barrett, Senior Wildfire
Researcher of Headwaters Economics &
Member of the Wildland Fire Mitigation and Management Commission
Chairman Tiffany, Ranking Member Neguse, and members of the
Subcommittee, thank you for the opportunity to offer perspective on
some of the themes in the draft legislation that is the topic of
today's hearing.
I am Dr. Kimiko Barrett, Senior Wildfire Researcher at Headwaters
Economics,\1\ an independent, nonpartisan, nonprofit organization based
in Montana. We work on community development issues with local, state,
and federal partners around the country. Our Community Planning
Assistance for Wildfire \2\ program--CPAW for short--has provided more
than 75 communities with land use planning, technical assistance, and
custom research to help them reduce wildfire risks. We also produce
research and policy analyses for federal and local partners and create
interactive tools to support data-driven decision-making--including
wildfirerisk.org,\3\ a site created in partnership with the U.S. Forest
Service designed to help community leaders understand and reduce their
wildfire risk. We accomplish this work with support from the Forest
Service and other federal agencies, private philanthropy, and community
partners.
---------------------------------------------------------------------------
\1\ Headwaters Economics is an independent, nonprofit research
group whose mission is to improve community development and land
management decisions. https://headwaterseconomics.org/
\2\ Community Planning Assistance for Wildfire: https://
cpaw.headwaterseconomics.org/
\3\ Wildfire Risk to Communities is a program of the U.S. Forest
Service, created under the direction of Congress. It is available at
https://wildfirerisk.org.
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Over the last year-and-a-half, I also had the privilege of serving
on the Congressionally established Wildland Fire Mitigation and
Management Commission.\4\ As you know, the Commission gathered 50
experts and representatives from federal agencies, the scientific
community, the private sector, and Tribal governments. Our final
report, published in September, offered close to 150 consensus-based
policy recommendations to help Congress address the wildfire crisis. My
contributions to the Commission drew from my expertise in risk-
reduction strategies to homes, structures, and communities--what we
largely reference as the ``built environment.'' My interest and
expertise center on how we can proactively invest in safeguarding
communities before a wildfire becomes a disaster.
---------------------------------------------------------------------------
\4\ See the full Commission report here: https://www.usda.gov/
topics/disaster-resource-center/wildland-fire/commission
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At Headwaters Economics, we regularly see first-hand how
communities are struggling to adapt to the wildfire crisis. The 75
communities we have partnered with include Grand County, Colorado,
where we are helping local leaders integrate land use codes that are
better adapted to real-world wildfire risks; Tuolumne Rancheria, a band
of Me-Wuk Indians in California that is working on defensible space and
home hardening strategies that are also culturally appropriate; and we
played a key role in the efforts of Austin, Texas, to create a Wildland
Urban Interface building code that could reduce risks while also
meeting the unique needs and desires of that community.
It is not easy for any community, rural or urban, to bring together
all the resources needed to adequately reduce the risks they face. For
many communities, the need to comprehensively address wildfire risk
exists alongside other pressing needs, such as housing affordability,
transportation, and infrastructure development--testing local
governments in unprecedented ways.
The challenges of so many communities, coupled with the recent
recommendations from the Commission, put a spotlight on the urgent new
approaches to wildfire that are greatly needed in the United States.
While there is no silver bullet, the Commission report lays out a
roadmap of cross-cutting solutions that Congress can help realize.
I am grateful for the opportunity today to highlight three
overarching themes in the Commission recommendations that will require
your visionary leadership.
1. Be proactive rather than reactive
If reducing risks to people, businesses, and livelihoods is at the
core of our goals, we must reach for proactive--rather than reactive--
strategies. This will require a new focus on one area that has been
sorely neglected: preparing our communities ahead of disasters.
For far too long we have focused on managing wildfires through
suppression and hazardous fuels reduction while overlooking the built
environment. Yet given the increasing pace, scale, and severity of
wildfire risk, suppression and landscape treatments alone will not
resolve this crisis. Our traditional focus on wildlands has failed to
account for the critical role of home, neighborhood, and infrastructure
design and construction. Just as communities are affected by this
problem, so too are they part of the solution.
This theme is reflected in Recommendation #1 in the Wildland Fire
Mitigation and Management Commission report, which calls for federal
agencies to invest in the built environment through a Community
Wildfire Risk Reduction Program. The Commission recommends creating an
interagency coordinating partnership that would include the Forest
Service, FEMA, the U.S. Fire Administration, the Bureau of Land
Management, the National Institute of Standards and Technology, and
others to bring together expertise in land use planning, building code
adoption, and wildfire risk so we can holistically address the need to
proactively harden our communities against wildfire.
A Community Wildfire Risk Reduction Program would also be able to
provide multifaceted support for communities through technical
assistance, direct grants, financial incentives, private-public
partnerships, workforce training, subsidies for disadvantaged
households, and capacity building--all necessary for community-scale
mitigation. Communities cannot do this on their own. Without financial
incentives and subsidies, a Community Wildfire Risk Reduction Program
will not be successful.
By bringing together dozens of existing resources we can also
significantly reduce the complexity and application costs that prevent
many communities, especially those in rural or underserved areas, from
being able to access federal programs.
Importantly, it is worth noting that this model has been adapted
from a similar approach in managing and mitigating earthquake hazards
to communities, specifically the National Earthquake Hazard Reduction
Program.\5\ We do not need to reinvent the wheel when it comes to
hazard reduction and resiliency. Important lessons from earthquake
mitigation and other disaster preparedness efforts can be applied to
wildfire risk reduction in communities.
---------------------------------------------------------------------------
\5\ National Earthquake Hazards Reduction Program: https://
www.nehrp.gov/
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2. Modernize tools for decision-making
To help communities quickly and effectively become better fire-
adapted, we need modernized tools for decision-making. The Commission
report (see Recommendations #104-106) calls specifically for the
creation of a multi-agency ``fire environment center.'' Governed by a
board of federal agencies with science and operational expertise, such
a center should build on our nation's existing and robust fire science
and help integrate currently fragmented data and technology into one
interoperable platform.
Modernizing our data and wildfire research systems can help
communities access the best available science in real time so they are
better equipped before, during, and after wildfires.
Complementary to supporting risk reduction to the built
environment, a fire environment center would inform valuable decision-
making strategies for risk reduction to the natural environment.
Beneficial fire reduces fuels on the landscape and reduces risk to
communities. The Commission recommendations specifically call for
``dramatically increasing the amount of beneficial fire'' on our
landscapes.
While it is tempting to think we can mandate suppression of all
fire, our national approach to wildfire should reflect the
understanding that fire has an important role in our landscapes,
fostering both healthy landscapes and reducing the risk of future
wildfires. Calls to return to a 24-hour suppression policy are
antithetical to allowing more beneficial fire, supersede local
decision-making, and are in direct opposition to the Commission's
recommendations.
Fuel treatments and the use of beneficial fire will be necessary to
reduce wildfire risk to communities and fire-adapted landscapes.
Project permitting and planning, including processes like those
required under the National Environmental Policy Act (NEPA), are
necessary to implement such projects. The Commission found that federal
land management planning and permitting efforts and requisite
environmental analyses are often not completed at a pace commensurate
with the increasing impacts of wildfire. As a result, there is a need
for funding to support permitting personnel for planning and analysis,
as well as collaborative and inclusive partnerships in communities.
Additionally, we need consistent, flexible integration of evolving
wildfire science that can inform strategic investments on the ground.
Any NEPA reform should not be done at the expense of the best available
science, community engagement, local decision-making, and collaboration
with partners.
3. Dedicated and sustained funding
Finally, visionary approaches require investments of dedicated and
sustained funding. Given the transboundary nature of wildfire, adequate
and continued support is needed at all scales and across disciplines.
Today, communities struggle to access limited funds spread across a
confusing constellation of programs. The burden falls to local
jurisdictions to navigate and piece together the limited programs that
do exist in order to reduce risk to potential disasters. For example,
Forest Service grants don't currently support home hardening efforts,
while some FEMA grant programs do. However, applying for and
administering FEMA and other federal grants requires a level of
staffing and expertise that is often out of reach for rural and
underserved communities.\6\
---------------------------------------------------------------------------
\6\ Headwaters Economics. (2024.) A rural capacity map. https://
headwaterseconomics.org/equity/rural-capacity-map/
---------------------------------------------------------------------------
In addition, current levels of funding for risk reduction projects
simply are not enough. For example, in the first rounds of funding in
the Community Wildfire Defense Grants (CWDG) program, created under the
Bipartisan Infrastructure Law, requests for funding outstripped
available dollars at a rate of four to one.\7\ In FEMA's Building
Resilient Infrastructure and Communities (BRIC) program, requests were
more than double the available funding,\8\ and grants are
overwhelmingly awarded to high-capacity, coastal communities.\9\ These
programs are designed to be cost-effective--investing in projects that
help communities avoid costly disasters.
---------------------------------------------------------------------------
\7\ Headwaters Economics. (2023.) Analysis of the first round of
Community Wildfire Defense Grants. https://headwaterseconomics.org/
natural-hazards/cwdg-first-round/
\8\ FEMA. (2023.) Building Resilient Infrastructure and Communities
Grant Program FY 2022 Subapplication and Selection Status. https://
www.fema.gov/grants/mitigation/building-resilient-infrastructure-
communities/after-apply/fy22-status
\9\ Headwaters Economics. (2023.) FEMA's BRIC program continues to
fund innovative risk reduction--but community capacity limits access.
https://headwaterseconomics.org/headwaters/femas-bric-program-
continues-to-fund-innovative-risk-reduction-but-community-capacity-
limits-access/
---------------------------------------------------------------------------
If we are going to treat the wildfire crisis like the national
emergency that it is, these programs should be funded consistently and
predictably. There should be more funds available in streamlined ways
so that more communities can access them. Investing in mitigation
before disasters strike will yield large savings from avoided losses
and is necessary to alleviate pressure on post-disaster federal
programs, protect homes and businesses, and make communities safer and
more prosperous.
Conclusion
The Wildfire Commission report provides the roadmap for future
wildfire policy and a vision in which there is complimentary mitigation
and management within both our communities and the wildlands that
surround them. To be certain, our future will be one of increasing
wildfires and the status quo cannot be maintained. We will have to
learn to live with wildfires in the wildlands but that does not mean we
have to experience disasters in our communities.
Thank you for your time and your attention to this urgent issue.
______
Mr. Tiffany. Thank you, Dr. Barrett. Now I would like to
recognize Mr. Cody Desautel, Executive Director of the
Confederated Tribes of the Colville Reservation and President
of the Intertribal Timber Council.
It is good to have you back, Mr. Desautel. You have 5
minutes.
STATEMENT OF CODY DESAUTEL, PRESIDENT, INTERTRIBAL TIMBER
COUNCIL, EXECUTIVE DIRECTOR, CONFEDERATED TRIBES OF THE
COLVILLE RESERVATION, NESPELEM, WASHINGTON
Mr. Desautel. Thank you, Mr. Chairman and Chair Westerman.
And you covered half of my intro for me, so I appreciate that.
In addition to serving as the Executive Director for
Colville and President for Intertribal Timber Council, I also
served on the Wildland Fire Mitigation and Management
Commission, which sent our report to Congress in September 2023
with nearly 150 consensus recommendations to help improve how
we prepare for, respond to, and recover from wildfires.
On behalf of the ITC and its more than 60 member tribes, we
thank you for the opportunity to share our perspectives on this
draft legislation.
Tribes actively manage their forest to support their
ecological, cultural, and economic goals. Despite our diligent
efforts to manage our forests, we have experienced
unprecedented wildfire impacts. Since 2015, the Colville
Reservation has seen more than 700,000 of its 1.4-million-acre
reservation burn in wildfires. Unfortunately, Colville is not
alone, as many tribes have experienced devastating fire seasons
over the past decade. The risk of wildfire to Indian lands is
compounded by the thousands of miles of shared boundary with
Federal agencies, primarily the U.S. Forest Service and Bureau
of Land Management.
In addition to the wildfire risk from adjacent Federal
lands, tribes are also impacted by limited suppression
resources due to priority placed on fires burning in unmanaged
Federal lands that pose a risk to communities and
infrastructure. This scenario occurred on the Colville
Reservation in 2015. Because other fires burning in the region
were deemed threats to communities, suppression resources were
prioritized to those incidents, leaving the North Star Fire to
burn on the reservation with very little support from the
National Fire System.
For these reasons, the ITC commends Chair Westerman's
intentions with this bill to prioritize fuel treatment in areas
needed to protect communities and infrastructure, and authorize
accelerated procedures to implement those projects. While ITC
believes that treatment across the landscape are needed to
reduce fire severity and post-fire effects, we understand the
urgency of protecting communities most at risk of wildfire as a
critical first step.
In addition to the criteria used to prioritize fuels
reduction projects, ITC recommends adding a provision that
allows states and Indian tribes to identify and request
additional areas for assessment and treatment.
The ITC also appreciates that the bill authorizes tribes to
request participation in fireshed assessments. Tribes are best
suited to define risks, strategies for reducing those risks,
and determining the benchmark goals for their communities.
For the sake of parity, we request that Tribal Forest
Protection Act projects be provided the same implementation
authorities, such as the emergency NEPA procedures and
categorical exclusions. This, along with the litigation reforms
proposed in the bill requiring consideration of long-term
effects of no action, could increase the use of TFPA.
As an example, the Colville Tribe had a TFPA project
recently litigated. The project shared 10 miles of boundary
with the reservation, and was approved by the Forest Service in
2014. The project was initially modified because of the 2015
North Star Fire, and because the NEPA decision was litigated in
2023 we are working on a new version of the project. Now, 10
years later, we still have no treatment accomplished on the
ground.
While tribes understand the importance of environmental
review, we also understand the potential impacts of taking no
action. The ITC appreciates the inclusion of traditional
ecological knowledge and the definition of best available
science, as this can be critical to inform our shared
management objectives.
The ITC also appreciates the inclusion of cultural burning
as a designated fireshed management project. The Commission
supported and validated the use of beneficial fire, including
prescribed fire and cultural burning for resource management
objectives where they are appropriate.
ITC supports the bill's provisions that address full tribal
inclusion in the Good Neighbor Authority, and adding the Park
Service and U.S. Fish and Wildlife Service to that authority.
We also support better reporting of fuels reduction
projects by type and effectiveness. A true accounting of
footprint acres with a quantified risk reduction will help
track our success and inform future investments and projects.
Improving reporting is also in line with the Commission's
recommendations for improved outcomes-based performance
measures.
ITC also supports the creation of an interagency group
focused on technology development and deployment. The Wildfire
Commission had 16 recommendations dedicated to integrating
modern science and technology. On the whole, ITC supports the
intent of this legislation to accelerate the pace and scale of
high-priority fuels work on Federal lands.
ITC also requests that the Committee review additional
recommendations from the Wildfire Commission report,
particularly those that involve tribes and tribal forest and
fire management. Thank you.
[The prepared statement of Mr. Desautel follows:]
Prepared Statement of Cody Desautel, President, Intertribal Timber
Council & Executive Director,
Confederated Tribes of the Colville Reservation
I am Cody Desautel, President of the Intertribal Timber Council
(ITC) and Executive Director for the Confederated Tribes of the
Colville Reservation in Washington State. On behalf of the ITC and its
more than 60 member Tribes, thank you for asking to hear our
perspective on this draft legislation.
Background
All of America's forests were once inhabited, managed and used by
Indian people. Today, only a small portion of those lands remain under
direct Indian management. On a total of 334 reservations in 36 states,
19.3 million acres of forests and woodlands are held in trust by the
United States and managed for the benefit of Indians.
Tribes actively manage their forests for multiple uses, including
clean water, habitat, economic revenue, jobs, cultural foods and
materials and for other cultural purposes. Despite our diligent efforts
to manage our forests with the limited resources we have we have
experienced unprecedented wildfire impacts. Since 2015 the Colville
reservation has seen more than 700,000 of its 1.4 million acres burn in
wildfires. Unfortunately, Colville is not alone, as many tribes have
experienced devastating fire seasons over the past decade.
The risk of wildfire to Indian lands is compounded by the thousands
of miles of shared boundary with federal agencies, primarily the U.S.
Forest Service and Bureau of Land Management. There are countless
examples of wildfire spilling over from federal lands onto tribal
forests, causing significant economic and ecological losses. These
fires regularly pose a risk to human life on Indian lands and have
resulted in fatalities.
In addition to these adjacent threats, tribes must compete for fire
suppression resources with federal lands that pose a risk to local
communities across the country. In 2015 fires around the northwest were
competing for suppression resources, including the Northstar fire on
the Colville reservation. Because other fires burning in the region
were closer to communities, suppression resources were prioritized to
those incidents leaving the Northstar fire to burn on the reservation
with very little support from the national interagency fire system. A
similar situation occurred on the Yakama reservation in 2015, where Hot
Shot crews were pulled from the Cougar Creek fire on reservation to
respond to another fire deemed to be a higher priority because of it's
proximity to communities. The Cougar creek fire ultimately burned more
than 50,000 acres, mostly on the Yakama reservation.
The impacts of wildfires are not limited to the reservation. Tribes
retain treaty, reserved, and other aboriginal rights across much of the
federal land managed by the U.S. Forest Service and Bureau of Land
Management. When these lands don't receive adequate management, or are
severely damaged by wildfires tribes feel the impact. This is
particularly true for tribes with small reservations. In these
situations, many of the culturally significant plants, animals, and
places are under the management of another federal agency. When these
resources are lost of damaged it limits their ability to practice the
culture that defines them as people.
For these reasons the Intertribal Timber Council looks forward to
working with the committee on this legislation. The ITC commends
Chairman Westerman, and this legislation's intention to prioritize
fuels treatment in areas needed to protect communities and
infrastructure, and authorize accelerated procedures to implement those
projects. The ITC supports both goals and has long advocated for fuels
treatment on federal lands at a pace and scale that is commensurate
with the ecologic need to return these landscapes to a healthy,
resilient condition. While the ITC believes that treatment across the
landscape is needed to reduce fire severity and post fire effects, we
understand the urgency of protecting communities most at risk of
wildfire as a critical first step.
The legislation primarily uses a combination of priority firesheds
identified in the ``Wildfire Crisis Strategy'' and existing national
Fireshed Registry ratings to prioritize fuels reduction projects. The
ITC recommends adding a provision that allows states and Indian tribes
to identify and request additional areas for assessments and treatment.
Wildfire is a complex phenomenon that can be unpredictable. Many of the
areas most devastated by wildfire in recent years do not appear on the
Registry at all. Likewise, areas that have burned in recent years are
treated at a lower risk of future wildfire. While that may be true in
the very short term, large areas with standing dead snags may pose a
much greater risk of catastrophic fires as time goes on. We recommend
more research about how to calculate wildfire risk from these massive
dead zones on federal lands.
The ITC appreciates that the bill authorizes tribes to request
participation in producing the fireshed assessments. Tribes are best
situated to define risks, strategies for reducing the threat of those
risks, and determining the benchmark goals for their communities. For
the sake of parity, we request that Tribal Forest Protection Act
projects on federal lands be provided the same implementation
authorities, such as emergency NEPA procedures and categorical
exclusions. This would be helpful in accelerating TFPA treatments
across the country.
A prime example of this is the Tule River Tribe's TFPA project in
the Sequoia National Forest in California. The NEPA process for the
project, intended to protect giant sequoias from stand-replacement
fire, took roughly a decade to get through. By the time of
implementation, wildfire was already affecting the sequoia stands.
Congress ultimately stepped in to create emergency authorities for
fuels treatment.
The Colville tribe is working through a similar situation where a
TFPA project that shares 10 miles of boundary with the reservation was
approved in 2014, later reduced because of the 2015 Northstar fire, and
had the NEPA decision litigated in 2023. Now--10 years later--we are
working on a new version of the project with no treatment accomplished
on the ground to date. While tribes understand the importance of
environmental review, we also understand that we must live with those
decisions and justify our actions to our tribal membership. Decisions
that impact natural and cultural resources are not things we take
lightly.
The ITC appreciates the inclusion of traditional ecological
knowledge in the definition of ``Best Available Science'' used in the
fireshed assessments. This can be a critical tool to better understand
the historic forest characteristics and fire behavior. It will be
important to respect the tribal sovereignty of our 574 federally
recognized tribes, and ensure we have a process for collection and
protection of this data that meets the needs of each tribal government.
The ITC also appreciates the inclusion of cultural burning as a
designated fireshed management project. For many tribes this will be a
critical tool to accomplish their risk reduction goals.
The ITC supports the bill's provisions that address full tribal
inclusion in Good Neighbor Authority, and adding the National Park
Service and U.S. Fish & Wildlife Service to that authority. We also
support extending the length of stewardship contracting authority. To
ensure we have the infrastructure needed to accomplish these fireshed
management goals we will need a healthy forest products industry. To
achieve this, we must have long term commitments to forest products
supply chains. The Wildfire Mitigation and Management Commission also
recommended investments in wood processing facilities and the wood
utilization sector more generally.
The bill's provision on litigation reform mirrors existing
direction from Congress in the Healthy Forests Restoration Act. Since
federal forests are often managed by the whim of federal courts, we
believe it is reasonable for Congress to direct courts to weigh the
long-term effects of fuels reduction versus wildfire impacts to
untreated areas. With approximately half of the reservation burning
over between 2015 and 2021 we have firsthand experience with fire
effects on untreated areas. Although we have an active forest and fuels
management program, we are not funded to work at the pace and scale
needed for our forest types. The consequence is high severity wildfire
in many of untreated areas. It would be irresponsible to assume ``no
action'' means ``no impacts'' as we continue to see the growing impacts
past management practices and climate change.
ITC would recommend that the Bureau of Indian Affairs be included
as a member of the Community Wildfire Risk Reduction Program. The BIA
is included as a representative in the Fireshed Center and Public-
Private Wildfire Technology Deployment and Testbed Partnership, and
should serve in the same capacity to protect tribal interests in this
program.
We also support better reporting of fuels reduction projects by
type and effectiveness. A true accounting of footprint acres with a
quantified risk reduction will help track our success, and inform
future investments and projects. We would recommend the work done by
the Department of the Interior to consider the ``avoided costs'' of
various fuels treatments.
The ITC also supports the creation of an interagency group focused
on technology development and deployment. The Wildfire Mitigation and
Management Commission had 16 recommendations dedicated to the
integrating modern science and technology. By collaboratively combining
the resources of the federal agencies, academia, and private industry
we can utilize existing tools, and develop new tools that improve our
effectiveness in achieving these wildfire risk reduction goals.
On the whole, the ITC supports the intent of this legislation to
accelerate the pace and scale of high priority fuels work on federal
lands. The ITC requests that the Committee review additional
recommendations to Congress from the Wildland Fire Mitigation and
Management Commission report, particularly those that involve tribes
and tribal forest and fire management.
______
Mr. Tiffany. Thank you for your testimony, Mr. Desautel.
And now we are going to have questions for 5 minutes.
First, I would like to recognize the Chairman, Mr.
Westerman.
Mr. Westerman. Thank you, Chairman Tiffany, and thank you
to the panel, great testimony. I appreciate everybody's input.
And hopefully, we can continue to work together as we develop
the language to file the bill.
And I am just going to try to go down the row as quickly as
I can.
[Slide.]
Mr. Westerman. Ms. Downey, you talked about mechanical
thinning and prescribed burns. And we have heard it said, a
picture is worth a thousand words. And I have a picture behind
me that I think is worth 10,000 words. This is from the Bootleg
Fire in Oregon, and we see an area that was thinned but not
burned destroyed in the wildfire. We see an area that had no
treatment that was really destroyed in the wildfire. And then
there is this green band in the middle that was thinned and
burned.
Can you just elaborate a little bit on the need not just to
do prescribed burns, not just to thin, but to use those in
combination as a treatment?
Ms. Downey. Chairman Westerman, thank you, and I agree that
the image you have from the Bootleg Fire highlights the power
of combining those different tools. That example really
highlights it, and I think the science also continues to
highlight that, as well.
I mentioned in my testimony the new meta-analysis that
looks at, when you are able to combine those tools of
mechanical thinning and prescribed burns, that is when you are
able to really see that reduced risk of wildfire and the
reduced severity going forward. So, when you are able to
combine those tools and use both of them in tandem and
responsibly, you can have some really incredible benefits.
Mr. Westerman. Thank you.
Mr. Parma, you bring a unique perspective, coming from the
private sector and a mill owner. On the business side, what is
the largest cost in your business?
Mr. Parma. The largest cost in our business is the fiber,
actually the trees that we use. That is where most of our cost
comes from.
Mr. Westerman. But if you look at the inputs into your
business, are not the log costs the highest, the resource cost?
That is more than the labor cost, the electricity. Typically,
that is how it is in a mill environment.
And the reason I am asking that question is, if you wanted
to expand your operation, what is the No. 1 thing you have to
be sure of if you are going to invest capital in an operation
producing wood products?
Mr. Parma. Yes, again, it gets back to the fiber, to the
actual trees. If there are trees available that we can harvest,
that we can use to make product, that is where we will probably
put another plant.
Mr. Westerman. Right. And it would be foolish to build a
mill and expand your production capacity if you didn't have the
fiber to go into it. That is just common sense. Yet, we have
seen a loss of infrastructure in the West, and we know how
critical it is to be able to have a market for this material
that needs to be thinned. So, hopefully we can do more with the
stewardship contracting, and we can encourage mill owners to
have confidence that they can invest their capacity or expand
their capacity and know that that supply is going to be there.
And if you look at the U.S. market, we still get about a
third--a little less than a third--of our wood products from
Canada, yet we see millions of acres of assets burn up every
year that could be creating jobs in rural areas and adding to
the U.S. economy and, hopefully, lowering prices for building
homes and other things.
Dr. Barrett, you said several great things. You talked
about being proactive. I have said that so many times in this
Committee. I also add we have to be pragmatic.
And you talked about building wildfire-resilient
communities, talking about hardening infrastructure, which I
totally agree with that. But can we, in a sense, harden the
forest, as well?
I know programs like Firewise, that are focused on making
structures that aren't going to catch on fire in a sense, could
we harden the forest to wildfire so that they look like this
strip in the middle, versus the other ones?
Dr. Barrett. Thank you for that question, Chairman. We can.
I think what is important, though, is that in as much as we
harden the forest, we complement that with hardening the
communities that are most threatened, as well.
Previous to that picture you had a picture of a home
burning, and I can tell you there is about a 90 percent chance
that home ignited from an ember. Once that ember lands in the
home and starts to ignite it, burning it, then neighboring
structures are threatened, and it is no longer a forest
problem, it is a structural ignition problem, and that requires
a different set of expertise and a different set of mitigation
measures.
Mr. Westerman. I agree 100 percent. We were coming back
from a CODEL last year after the fire in Lahaina, and we went
over and toured the damage. It was a grass fire, then it became
a structure fire, and then it became a massive structure fire.
We saw glass melted out of automobiles, aluminum, magnesium. If
it wasn't steel, it was pretty much melted. And it takes 2,000
degrees to melt glass, so an unbelievable high-intensity
wildfire once it got into structures. So, I am all for
hardening structures. And in that wildland-urban interface we
have to do a much better job both with forest management and
the structures.
Mr. Desautel, I had the great opportunity to go travel
around with you on the Colville land. And you know, my hat is
off to you for the work that you all are doing in a very
difficult situation. And you pointed out we visited that site
where you, the Colville, had done everything right, as far as a
forest management standpoint. But you had a wildfire come in
from the Forest Service that took out, you had the green strip
here that still got destroyed because the fire was so hot.
We are trying to give more authorities to tribes to do what
you do best, and that is to manage your lands, to go out on the
Federal estate and do management. How eager would the Colville
be to manage the lands that adjoin your forest so that you
could keep those Federal fires from coming in on your land?
Mr. Desautel. Colville would be a very willing partner in
that. We have two Tribal Forest Protection Act projects that
are on projects adjacent to the Colville, again, one held up in
litigation, the other one working through the process, hoping
to see a NEPA decision on that very soon that does not get
litigated, but recognize that, in the example that we saw, that
if you don't do things at scale, it is really kind of anecdotal
that, when you look at treatment across the landscape, it has
to be large enough that when you have those high-intensity fire
events, largely driven by wind, that they will withstand or
have lower fire severities when those fires hit.
So, I think it is critical that we do work on both sides of
the fences and working with our neighbors, whether those be the
Forest Service, BLM, or private, is absolutely critical to
really trying to get a handle on this wildfire crisis.
Mr. Westerman. And you made a great point about making sure
the tribes have the same authorities that the Federal land
managers have when it comes to categorical exclusions and NEPA,
and that is well noted.
I appreciate your indulgence, Mr. Chairman, and I yield
back.
Mr. Tiffany. The gentleman yields. I now recognize Mr.
Bentz from Oregon for 5 minutes.
Mr. Bentz. Well, thank you so much for being here today,
and I am going to be asking questions about the content of the
bill. So, if it turns out that the person I asked the question
of doesn't know anything about it, feel free to select one of
your fellow folks, and point at them, and we will go there.
We will start with you, Mr. Desautel. And I am curious, the
watershed space is of great interest to me, and the value of
the forest in acting as a sponge to take up water and then
release it over time is far more important, perhaps, than it
has ever been.
I have the privilege of being Chair of the Water, Wildlife
and Fisheries Subcommittee of Natural Resources. And, of
course, water is everything to fish, and not to mention
agriculture, and not to mention all of the other folks that
rely upon the water as it comes down from the forests. So, my
question to you is, this bill suggests that we would be able to
use watersheds as a foundation for asking for alacrity in
trying to protect our forests. Do you agree?
Mr. Desautel. Yes, I do agree, for one, that watersheds are
just an appropriate scale to look at treatments and a way to
prioritize. But I completely agree with you from a water
priority perspective, too, that when you look at tribes--for
the vast majority, if not all tribes--water is one of the most
sacred and critical things that they try to protect, from a
natural resource perspective.
Mr. Bentz. Ms. Downey, I had occasion to stop by the
University of California at Davis 3 weeks ago and speak with a
water expert there, and she was talking about the ever-
increasing dryness of our forests. And the conversation came up
in an interesting way. I was asking about the impact of warmer
weather upon the farmland out across the Central Valley of
California. And she was explaining, of course, the obvious,
which is as it gets hotter, more water is drawn out of the
soil, it turns into vapor, leaving the salt. So, we were
actually talking about salt.
But in the course of the conversation she mentioned that
the forests were suffering the same consequence of this
evaporative loss of water as things got warmer, thus really
resulting in much drier forests. Is that your opinion, also? I
am assuming everybody on the panel agrees with that consequence
of hotter, warmer, drier climate.
Ms. Downey. Congressman, I can't speak too much to the
actual water tables there, that is a little bit outside my
scope. But I would absolutely agree that hotter, drier
conditions are a factor fueling our wildfire crisis.
And your point on the connection with water, I mean, so
many of our watersheds, especially in the West, are reliant on
those healthy forest ecosystems. Where I am in Bozeman,
Montana, if a fire were to rip through the forest surrounding
our community, we would be out of water in 3 days. So, the
interconnection of water and the health of our forests cannot
be overstated.
Mr. Bentz. Yes, and so the question would be, do the people
in Bozeman actually understand that getting back into the woods
is a requirement of maintaining the water that they get from
their tap? Do they get it? Does the greater population
understand how close they are to not having water?
Ms. Downey. That is a great question, and I would like to
credit the Forest Service and the city of Bozeman and a lot of
local collaboratives in helping to make that point. So, I do
think there is a strong effort there to emphasize that
connection.
I will also recognize that PERC, where I work, we have been
really lucky to be working on a film looking at just defining
what is a healthy forest. Why should the general population
care about not just having these dense, overstocked forests,
but instead, well-managed and restored ecosystems for exactly
the reasons you are discussing, because they have real
implications for those of us who live there every day.
Mr. Bentz. I think Newt Gingrich said that the way you get
the law changed, you change public opinion. So, the real
question is, how are you and others letting people know of the
need for a bill just like the one that Chair Westerman is
bringing that builds and responds to the incredible danger,
almost existential, for some of our cities?
I mean, obviously, it is. How do you guys get the word out?
How do you tell people about this?
Ms. Downey. It is a big challenge, but one that I know we
are eager to take on. And I know many of the other panelists
here are also working on similar issues of how do we start to
change that public opinion, how do we start to change the
messaging that, when you step off the plane in a Western
community and see these dense, green forests, we have to
recognize there is also a risk there.
So, I think there is a lot of work that can be done, but I
know that is something that we are eagerly taking on and
working to communicate.
Mr. Bentz. Well, I appreciate that.
I yield back.
Mr. Tiffany. The gentleman yields, and I am going to take a
couple of minutes to ask some questions here.
Mr. Parma, the Federal Forest Resource Coalition, you guys
put out some good data, it appears, quarterly. And are you
familiar with that, that is coming out of your organization? We
receive it in regards to harvest on Federal lands, and
particularly U.S. Forest Service lands.
Mr. Parma. Yes.
Mr. Tiffany. And we are seeing from the data that, in terms
of net, nationally there actually is not an increase in the
amount of timber coming off from the U.S. Forest Service lands.
Is that accurate?
Mr. Parma. Yes, it is.
Mr. Tiffany. And do you guys have a reason or two, a
prominent reason or two to attribute that to? Because I think
about the additional money that has been put in, and yet we are
not seeing additional harvesting. What are the reasons for it?
Mr. Parma. Yes, I would go back to Good Neighbor Authority,
stewardship, all of those are opportunities that are aren't
quite being used, I think, to their full ability. Both products
like that would also help increase the amount of timber.
Mr. Tiffany. What was that last point again?
Mr. Parma. The Good Neighbor Authority and stewardship,
stewardship contracting.
Mr. Tiffany. So, if we would do more of that?
Mr. Parma. Yes, and there is a fix that needs to be done in
the Good Neighbor Authority. There are five or six states that
do a good job of it now, there are more that would like to do
it.
But as we all know, when it comes to national forest, state
land, county land, everything is checkerboard anymore.
Especially as you go east from the Rockies and that, it is hard
to do management on just one ownership. Where they are allowed
to have, like I said, with that Good Neighbor Authority fix, if
we get that, we will get more opportunity that way.
Mr. Tiffany. Yes, I know I heard the examples about a
decade ago that the golden-winged warbler was being considered
for being put on the endangered species list, and it turns out
its habitat is early successional forests. Isn't that correct?
Mr. Parma. Yes, it is.
Mr. Tiffany. So, you think about these U.S. Forest Service
lands that are not being managed. We are actually creating or
have the potential to create an endangered species as a result
of that.
Mr. Parma. Right. And we have the data that we are not,
according to the plans that we have for the Lake States area,
in particular, where the golden-winged warbler habitat is, they
are not meeting their young forest objectives. So, we are
losing opportunity there to actually improve habitat for
another species by doing timber harvest.
Mr. Tiffany. Mr. Desautel, so the Cottonwood fix is in the
discussion draft. Do you think that is a good thing?
Mr. Desautel. Yes, anything that speeds up process, limits
the risk of litigation is a good thing to work at the pace and
scale we need to. I think it has been mentioned by even Deputy
Chief French before that process, I think, is a bit of a
problem for us.
And particularly when we look at the rate of change and the
number of acres impacted annually by wildfires, we are
definitely seeing wildfire as the largest managing factor on
the landscape, compared to the things that we are doing as
human beings.
Mr. Tiffany. Have you specifically seen Cottonwood
litigation affect your operations?
Mr. Desautel. Well, we had a project litigated. I am not
sure how close the comparison was to the Cottonwood litigation,
but it was opposition of a project that we had proposed, I
think largely because of its potential implications to a
designated roadless area and its eligibility for wilderness.
But I do know that our intentions in treating that were to
give us opportunities to suppress fire, were we to get one in
that location. And, unfortunately, while that was being
litigated, we had a very large fire season in 2021 that burned
50,000 acres on the reservation just south of where that
project was to be completed. Fortunately, we got it held on the
reservation side, so it didn't end up on the Forest Service,
but I think it demonstrates the potential that is there if you
don't do that work. And, unfortunately, we hadn't done enough
work even on our side of the border to stop that once it got to
that drainage that we had planned the activities for.
Mr. Tiffany. So, the Intertribal Timber Council supports
doing something in regards to Cottonwood to get a fix to it?
Mr. Desautel. Yes, I believe so. I mean, it is always
dependent on the language, but definitely supportive of things
that help process.
Mr. Tiffany. Yes. So, is it the case that at times the
Forest Service is not a good neighbor?
Mr. Desautel. The Forest Service could be a better neighbor
in scenarios.
I am thankful that the Colville National Forest, which is
on our northern boundaries, is one of the more active forests
in the country. But the Okanogan Wenatchee struggles with
different demographics, and they definitely do less treatment
than what the Colville does. So, there is definitely room for
improvement.
Mr. Tiffany. Because most of the U.S. Forest Service lands
in Wisconsin are in my district up in northern Wisconsin, and I
have heard that from county forest, state foresters, private--
there is a lot of private forest land in Wisconsin--that at
times, because of the lack of harvest, you end up with disease
and insect infestations, that they really become a problem for
their neighbors. So, it is of great concern.
Ms. Downey, we heard with our previous panel in regards to
it may be double the cost to be able to get a project done as a
result of litigation. Have you seen that? Has your
organization, PERC, seen examples of something like that?
Ms. Downey. Thank you, Congressman. Yes, litigation is a
major challenge. You brought up the Cottonwood fix, and the
national forests surrounding Bozeman, where I live, is ground
zero for that Cottonwood Decision.
And what we saw, again, is this is the forest that is our
watershed. If this forest goes up in flames, we are out of
water in 3 days. That project was collaboratively designed,
there was a lot of community buy-in on that, and that was
litigated. Over 15 years went by when that was all tangled up,
and at the end of the day the litigation finally was resolved.
Litigation has still continued, but work has been allowed to go
on, and the project is moving forward exactly as it was
originally laid out.
All of those years of delay and costs and time and
everything where our community was at risk didn't end up
actually changing the outcome of the project.
Mr. Tiffany. And which project was that, again?
Ms. Downey. The Bozeman Municipal Watershed Project.
Mr. Tiffany. OK. So, is that moving forward now?
Ms. Downey. Yes, we have been able to move forward, which
is excellent. I have been able to go up and see some of the
work happening firsthand, and it looks wonderful.
There is still some litigation continuing, but at least the
injunctions have been lifted.
Mr. Tiffany. Does it appear that project will get
completed? I mean, are you optimistic at this point?
Ms. Downey. At this point I am optimistic, yes. The Forest
Service is very committed to seeing that through.
Mr. Tiffany. Dr. Barrett, I am going to close here. You had
three points that you were making, and No. 2, you were talking
about having a commission, I think, something like that. And
did I hear it accurately that it would be public officials that
would serve on this commission that you highlighted in Item No.
2?
Dr. Barrett. I highlighted two potential programs that are
being proposed in the Commission recommendations. One was a
community wildfire risk reduction program, which is explicitly
called out in Westerman's drafted legislation, and then
additionally, a proposed fire environment center. So, if that
is the one that you are referencing----
Mr. Tiffany. That is, yes.
Dr. Barrett. Correct, yes. So, this is an interagency joint
office with shared governance structure, but with one dedicated
director who would be responsible for the budget, the hiring,
and the administration. It would be an interoperable data
sharing and technology platform.
Mr. Tiffany. OK. Well, would there be private actors that
would be allowed on this also?
Dr. Barrett. I would believe that they would be part of
that larger governing board.
Mr. Tiffany. OK. Because I was just wondering if I was
hearing that there would not be private actors that would be
allowed there also. So, they are not excluded?
Dr. Barrett. No. Correct.
Mr. Tiffany. OK. And on point No. 3 you talked about
additional resources needed, additional money being needed. I
have a great skepticism about that. I mean, you are hearing
some of the back-and-forth that we are having that we allocated
significantly more money, billions of dollars of more money to
do a variety of things in regards to these natural resources
issues that we had before us, including wildfire, and yet you
heard from the U.S. Forest Service official that they are
actually not getting more work done. So, that is really a
concern. Is the answer just money?
Dr. Barrett. The answer is partly money, certainly. We do
need additional financial incentives and investment and
subsidies, particularly to communities to be able to do the
mitigation measures needed for structures, neighborhoods, and
their larger community in reflection and complementary to what
is occurring on the wild lands around them. So, certainly,
money is part of it.
But it goes beyond just money. As articulated in the
Community Wildfire Risk Reduction Program that is part of this
bill, there are additional functions that are required,
including technical assistance for expertise that goes beyond
what traditional Federal land management agencies are
responsible. There is also a need for financial incentives, for
subsidies, for research and risk assessments, for building code
adoption, for support for land use planning, and to support
local collaborations on the ground between public and private
partners.
Mr. Tiffany. So, something that would be really helpful is
if you could identify a source of money that is already
existing.
I mean, we sit here as a nation in $34 trillion in debt,
and the original reason why I ran for our State Legislature
years ago was because of the fiscal problems that we had. And,
of course, they are even more severe at the Federal level. I
think it is really irresponsible for us to put new money in.
And if you can find existing pots of money that may be out
there that we could access to be able to accomplish some of
those goals, I know, certainly on this side of the aisle, I
think you are going to find a greater receptivity to what you
are proposing, and would be really helpful for us to be able to
advance the goals that you have laid out.
Dr. Barrett. Thank you, Chairman.
Mr. Tiffany. Yes. OK, Mr. Stauber, you get 5 minutes, good
to have you here.
Mr. Stauber. Thank you, Mr. Chair. That is called pay-fors.
Mr. Tiffany. Yes.
Mr. Stauber. I am happy to see a great Minnesotan on our
panel today, and I thank all of you for being here.
Mr. Parma, thank you for coming to Washington and
testifying on behalf of Minnesota's forestry sector. We really
appreciate it.
I am happy to hear you discuss the Good Neighbor Authority
in your testimony. As I shared, I have seen this program work
incredibly well in northern Minnesota. That is all the reason
more that we need to expand it for tribes and counties. Can you
expand or share more on this?
Mr. Parma. Yes, Good Neighbor Authority just gives us more
opportunity to get more acres treated on the national forests.
Multiple tribes and counties already have forestry programs
that do timber sales, set up timber, do the administration of
it. So, it would just give more opportunity, as we heard
earlier, one of the things the Forest Service said is they were
short on people. This would give more people more boots on the
ground to get opportunities to get things done.
Mr. Stauber. Yes, it is a win-win-win.
Mr. Parma. Yes.
Mr. Stauber. Can you talk a little bit about the provisions
allowing direct sales on priority firesheds?
Mr. Parma. Sure. That was set up in 1976, if I remember
right. And what has happened is it was never changed. With all
the inflation we have had since 1976, it was never changed. The
amount was kept the same. By just fixing that, just getting it
up to date on what it should be at, the minimum value of the
timber, it would help out with a lot of small logging
businesses that are hurting right now. They would love to have
that opportunity. It would help to get more acres treated, and
actually help a lot, even out West, where they could get
opportunities to do projects that are too small for a lot of
people, but would be perfect for some of these other
businesses.
Mr. Stauber. While our forests in Minnesota do face the
risk of wildfires, we luckily do not face as large of a threat
as certain states out West. That said, forest management is
still incredibly important. Can you speak to the importance of
proper management of forest in Minnesota and similar areas of
the Upper Midwest?
Mr. Parma. Sure. And we talk about the East not being as
fire prone, but as Mr. Tiffany will attest to, on Saturday we
had over 300 fires in the state of Wisconsin alone. So, it is
not just out West, it is also out East. So, getting more
management done, getting more forest fire resistant is
important for all of us. And there is definitely opportunity
there to get it done before we lose it.
Mr. Stauber. Mr. Parma, in the first panel the Forest
Service Chief and I talked about allowing the private industry
to have some input and conversation. Do you feel that you have
a voice, as a private industry, with the Forest Service?
Or would you like to have a heavier and a more influential
voice because you are the boots on the ground?
Mr. Parma. I guess, as far as voice goes, I mean, we are
heard at the table, for sure. Sometimes I wonder if it goes in
one ear and out the other, but that happens. But I think we
have a lot of opportunity to get things done on the ground, and
we have tools that we have been given. The GNA is one,
stewardship----
Mr. Stauber. Yes.
Mr. Parma. There is designation by prescription,
designation by description, opportunities where they don't need
to do a lot of the work on the ground. We can get that done
with just things that we already do in industry already.
Mr. Stauber. Yes, but do you think they are listening? I
mean, that was my premise of my question to the Forest Service
Chief. We have private industries and experts in the private
sector that can help you make decisions. And that is the goal,
to make sure that the Forest Service works with the private
industries so their voices are heard, not just listened to, but
actual action taken after you have given the input from your
perspective of boots on the ground, the industry experts, and I
consider you an industry expert. So, Mr. Parma, thank you for
coming and representing the great state of Minnesota.
To the other witnesses, thanks for your testimony.
Again, Mr. Chair, it is called the pay-for, and I yield
back.
Mr. Tiffany. Will the gentleman yield?
Mr. Stauber. Yes, I will yield.
Mr. Tiffany. Ms. Downey, do you see reason for optimism? I
think I have been in this place for 4 years, become much more
familiar with the western wildfires and what is going on. Do
you see reason for optimism that we are going to do a better
job as a country for what really has been a disaster going on
for the last 10 to 20 years?
Ms. Downey. Mr. Chairman, that is an excellent question,
and I think where I see optimism is that there is now broad
support and recognition for the need to actually apply these
tools and to do active restoration work through mechanical
thinning and prescribed burns and management on the ground. So,
that is where I do have optimism.
I think, in order to be able to then harness that
enthusiasm and make it more easily applied on the ground
through a lot of the reforms that we are talking about today,
through limiting disruptive litigation, through accelerating
the rate at which things are able to move through the
environmental review process, that bringing in the private
partners, states, counties, and tribes, that is where we can
then take that enthusiasm and that broad buy-in and recognition
that we need to do something, and turn that into outcomes on
the ground.
So, I guess my optimism sort of hinges on our ability to
make some of these reforms and to harness that enthusiasm.
Mr. Tiffany. Thank you.
Mr. Stauber. Mr. Chair, I yield back.
Mr. Tiffany. The gentleman yields. I would like to thank
all of our witnesses for joining us here today. Many of you
traveled from long distances. I appreciate your testimony, and
I appreciate the Members for their questioning.
Members of the Subcommittee may have some additional
questions for our witnesses today, and we will ask that they
respond to these in writing. Under Committee Rule 3, members of
the Subcommittee must submit questions to the Subcommittee
Clerk by 5 p.m. on Monday, April 22, 2024. The hearing record
will be held open for 10 business days for those responses.
If there is no further business, without objection,
Subcommittee on Federal Lands stands adjourned.
[Whereupon, at 12:11 p.m., the Subcommittee was adjourned.]
[ADDITIONAL MATERIALS SUBMITTED FOR THE RECORD]
Statement for the Record
U.S. Department of the Interior
Discussion Draft of H.R. ____ (Westerman)
Chairman Tiffany, Ranking Member Neguse, and members of the
Subcommittee, thank you for the opportunity to provide this Statement
for the Record on the discussion draft. The Department of the Interior
(Department, DOI) notes its strong preference to testify on bills after
they have been introduced. Given the breadth of subject matter
contained in the text of the bill, the Department did not have adequate
time to conduct an in-depth analysis and receive input from the many
agencies impacted, and it did not have sufficient time to develop the
detailed, thorough testimony that is appropriate for a hearing on these
matters in time for the hearing. We are providing the following
preliminary comments on the 75-page draft bill but would like to
preserve the opportunity to submit additional input on the bill after
it is introduced, if necessary. The Department defers to the U.S.
Department of Agriculture (USDA) on provisions of the draft bill
impacting USDA Forest Service (USFS) programs.
The Biden-Harris Administration recognizes that all Americans are
impacted by the heavy burdens that accompany wildfires, which are being
made more intense by climate change. The Department works closely with
the USFS, states, Tribal Nations, and local communities to reduce
wildfire risk and restore the ecological health of our forests and
rangelands.
The success of DOI's Wildland Fire Management program is predicated
on coordination with our interagency, state, and Tribal partners. These
partnerships are vital to the Department's success in carrying out its
stewardship responsibilities, particularly fuels management work and
post-wildfire restoration efforts; they are also integral to the
interoperable approach that is the hallmark of the nation's wildfire
response activities.
Any efforts to increase fuels management, or in general improve
Wildland Fire Management work, will be more successful with
authorization of permanent, comprehensive wildland firefighter pay
reform, as proposed and included in legislative proposals accompanying
the President's Budgets for Fiscal Years 2024 and 2025.
Title I--Landscape Scale Restoration
Title I, Subtitle A of the draft bill, Addressing Emergency
Wildfire Risks in High Priority Firesheds, would designate fireshed
management areas; establish a Fireshed Center and firesheds registry to
support coordinated wildland fire data, science, and technology with
Federal and non-Federal partners; facilitate shared stewardship
agreements with states and Tribes; and limit National Environmental
Policy Act (NEPA) requirements for hazardous fuels treatments in
fireshed management areas.
Several provisions of the draft bill align with recommendations
made in the Wildland Fire Mitigation and Management Commission Final
Report (Report) to Congress. The Report recommends greater cooperation
among partners to actively invest in technologies and mitigation
strategies to reduce wildfire risk and to increase the pace of scale of
hazardous fuels treatments on Federal, non-Federal, and Tribal lands.
The Department also notes that there is a nexus between the USDA's 10-
year Wildfire Crisis Strategy--which identifies the priority firesheds
that the discussion draft proposes to designate as fireshed management
areas--and the Department's 5-Year Monitoring, Maintenance and
Treatment Plan to Address Wildfire Risk. Both strategies establish
roadmaps for collaboratively addressing wildfire risk and building
resilience across landscapes.
The Department would like to work with the Sponsor and the
Subcommittee to ensure that the proposed fireshed management areas
would be established with DOI data and input and appropriately
incorporate landscape prioritization. Similarly, the Department
recommends that membership and appointments to the proposed interagency
Firesheds Center created by section 102 of the bill be given equal DOI
and Tribal consideration. Additionally, there is potential overlap
between the responsibilities of the Fireshed Center and the Joint
Office for Wildfire Science and Technology that is proposed in the
President's Budget for Fiscal Year 2025. The Department is exercising
flexibilities under the current suite of management authorities
provided by Congress, including implementing procedures for several
categorical exclusions for hazardous fuels to reduce wildfire risk and
protect communities, infrastructure, and natural and cultural
resources. We remain committed to ensuring that appropriate
environmental reviews and analyses are considered for particular
projects. The Department would like to work with the Sponsor and the
Subcommittee on definitions and other technical changes in this Title
to ensure that DOI and Tribal interests, goals, and priorities are
addressed.
Subtitle B of Title I, Expanding Collaborative Tools to Reduce
Wildfire Risk and Improve Forest Health, amends the Agricultural Act of
2014 to allow revenue and payments under Good Neighbor Agreements (GNA)
received from timber sales to be retained and used by the applicable
Governor, Tribe, or county for restoration services under GNAs and for
the administration of GNAs through 2029. Additionally, Subtitle B would
amend the Healthy Forests Restoration Act of 2003 to allow the BLM and
USFS to enter into stewardship contracting projects to retain and
expand existing forest product infrastructure and increase the maximum
allowable period for a contract from 10 to 20 years for all contracts.
In the event of a cancellation of a contract lasting more than five
years, the bill directs the agency to provide 10 percent of the
agreement or contract amount to the entity providing services. Lastly,
the discussion draft also directs the DOI and USDA to establish intra-
agency strike teams to assist NEPA reviews, preparation, and
implementation associated with fireshed management projects within the
fireshed management areas that would be designed by the bill.
As a general practice, the BLM provides full funding for multiyear
projects even though the BLM has the authority to fund these contracts
incrementally. The BLM notes that providing incremental funding would
necessitate the inclusion of cancellation and termination clauses in
the event that the BLM is not provided appropriations to fund
obligations beyond the current fiscal year. If the BLM awards a
contract that is not fully funded at award, requiring a fixed 10
percent cancellation or termination cost may be inadequate in some
cases and too much in others, depending on the nature of the project
and site. The Department would appreciate the opportunity to work with
the Sponsor and the Subcommittee to include a mechanism in the bill
that provides suitable cancellation and termination costs.
Subtitle C of Title I, Addressing Frivolous Litigation, contains
reforms related to litigation of fireshed management plans; limits the
obligation to reinitiate consultation under the Endangered Species Act
(ESA) on approved BLM land use plans when a new species is listed or
critical habitat is designated or new information reveals effects on
listed species or critical habitat that were not previously considered;
and establishes a discretionary arbitration process pilot program as an
alternative dispute resolution process for objections or protests to
forest management activities designated by the Secretary concerned. The
Department has not had adequate opportunity to review and analyze these
provisions and would like to preserve the opportunity to submit
additional input on these provisions.
Title II--Protecting Communities in the Wildland Urban Interface
Title II, sections 201-203 of the discussion draft would authorize
a DOI Community Wildfire Risk Reduction Program to support interagency
coordination in reducing wildfire risk in the wildland urban interface
and a Community Wildfire Defense Research Program to promote research
and investments into wildfire resistant designs; address wildfire
suppression policies; and expand research for community wildfire
defense.
The Department welcomes the opportunity to facilitate partnerships
with local communities and private entities through the creation of
these two programs. However, the Department notes that other Federal
agencies may be better suited to implement and administer the proposed
Community Wildfire Risk Reduction Program, which we understand to be a
broad-based technical assistance and grants program. Furthermore, DOI
notes that other Federal agencies, such as FEMA and the U.S. Fire
Administration, should be equal partners in the proposed Community
Wildfire Defense Research Program considering their ongoing involvement
in funding research into wildfire resistant technologies and
structures. Finally, although the suppression provisions of Title II,
section 202 apply only to the USFS, they have broad implications to
interagency wildfire response efforts, present potential legal issues,
and--in the long-term--run counter to our collaborative efforts to
effectively reduce wildfire risk on Federal and Tribal lands.
Title II, section 204 amends section 512(a) of the Federal Land
Policy and Management Act (FLPMA) by changing the definition of
``hazard tree'' to include trees or parts of trees that, if they fell,
would be likely to come within 50 feet, instead of 10 feet, of an
electric powerline. Additionally, section 204 would require agency
consultation with private landowners when identifying hazard trees for
removal on private lands. Finally, section 204 reduces approval
timelines for vegetation management, facility inspection, and operation
and maintenance plans from 120 days to 60 and 67 days, respectively,
for plans and modifications and, in each case, makes approval automatic
at that point.
The BLM is working to protect electric powerlines and associated
infrastructure in the event of catastrophic wildfire. In several
states, the BLM is coordinating with electrical utility companies to
identify areas of high risk for wildfire and is sharing risk assessment
data to assist utility companies with identifying areas for vegetation
treatments. Consistent with BLM policy, power companies may reduce risk
in their rights-of-way (ROW) through local vegetation management plans
and maintenance operation plans. Electrical utility companies are not
required to notify the BLM of maintenance or mitigation work along the
ROW if it is determined there is high risk for wildfire. Pursuant to
section 512 of FLPMA, the BLM also published new regulations to address
the risks of wildfire to and from powerlines on BLM-managed public
lands on April 12, 2024. The Department would like to work with the
Sponsor and the Subcommittee to ensure that the bill language is
consistent with current regulations and supports amending section 512
to facilitate removal of hazard trees within 50 feet of electric
powerlines.
Title II, section 205 of the discussion draft establishes a
categorical exclusion for the development and approval of plans
submitted under section 512(c)(1) of FLPMA and the implementation of
any routine activities conducted under such a plan. The use of this CX
would not be allowed in established wilderness areas, nor would it
extend to the establishment of a new permanent road. The Secretary
would be required to decommission any temporary roads not later than
three years after the action is completed. Finally, the activities
authorized for the use of the proposed CX would be exempt from section
7 of the ESA, section 106 of the National Historic Preservation Act
(NHPA), or any other applicable law.
It is important to note that the BLM already has some CXs that it
can rely on for compliance with NEPA for certain projects that
facilitate emergency stabilization work after a wildfire and that can
be used to manage fuel load and trees which are dead, dying, diseased,
injured, or which constitute a safety hazard in certain circumstances.
The Department supports the goals of the discussion draft to enhance
and expedite actions to reduce wildfire risk in powerline ROWs.
However, the Department believes that new CXs are better developed
through the established administrative agency process than through
legislation. In addition, we are concerned that the proposed CX's
waiver of the requirements set forth in the ESA and NHPA, and its
exemption from the requirements of all applicable laws, could
jeopardize the continued existence of threatened and endangered
species, or result in damage to important historic and cultural
resources, and have other serious unintended consequences. We would
appreciate the ability to provide technical assistance regarding its
scope and to clarify whether extraordinary circumstances would apply.
Further Title II, section 206 directs the Secretaries of the
Interior, Agriculture, and Defense to jointly develop and submit to
Congress the ``Seeds of Success'' strategy to enhance the domestic
supply of seeds, increase interagency coordination, and provide a
comprehensive approach to native plant materials development and
restoration. The BLM currently has a Seeds of Success Program and a
National Seed Strategy for Restoration and Rehabilitation.
Additionally, the BLM participates in the Plant Conservation Alliance,
a public-private collaboration among 17 federal agency Members and more
than 400 non-federal Cooperators working to protect native plants by
ensuring that native plant populations and their communities are
maintained, enhanced, and restored. The BLM would like to work with the
sponsor to increase the capacity and ability of these existing efforts.
Title III--Transparency and Technology
Title III, section 301 of the discussion draft directs USDA and DOI
to establish demonstration projects on USFS- and BLM-managed lands to
support the development and commercialization of biochar. It also
authorizes a competitive grant program to carry out research and
development. Biochar is created when plant materials--such as wood,
bark, switchgrass and the like (generally referred to as ``biomass'')--
are heated in a low or no oxygen atmosphere. Biomass resulting from
fuels reduction treatments or logging activities can be used to produce
biochar, which can then be used to enrich soil and sequester carbon
that would otherwise be released into the atmosphere if biomass were
left aboveground to decompose, or if it were burned.
The BLM has explored uses for biochar as early as 2012 through an
agreement with Utah State University, Utah Biomass Resources Group.
More recently, in 2023, the BLM and USFS generated biochar from
otherwise unusable biomass resulting from the 2020 Holiday Farm Fire in
Oregon. The BLM continues to study how biochar can be used to benefit
soil as well as the cost of generating biochar relative to other
biomass use alternatives. The Department is open to further research
regarding developments of biochar technology and efforts to improve
cost efficiency of its use.
Title III, section 302 of the draft bill would establish reporting
requirements for hazardous fuels projects and establish a program for
testing new wildfire prevention, detection, communications, and
mitigation technologies. The Department notes that many of the
reporting requirements outlined in section 302 are redundant with
metrics that are required by other legislation, do not fully account
for annual hazardous fuels acres treated, or may not be currently
feasible. We would like to work with the Sponsor and the Subcommittee
on modifications to this section to address these issues.
Title III, section 303 would require the DOI and USDA to establish
a deployment and Testbed Pilot Program for new and innovative wildfire
prevention, detection, communication, and mitigation technologies. The
Department notes that it is already investing in innovative
technologies to protect communities and the public from wildfire risk.
The Department would like to work with the Sponsor and the Subcommittee
on technical edits to section 303 of the draft bill to ensure that the
definitions of ``covered agency'' and ``covered entity'' are
sufficiently broad to cover all potential partners and that the key
priority technologies and priority areas address current wildland fire
management needs.
Indian Tribes and Tribal Lands
Finally, the Department is committed to improving the stewardship
of our Nation's Federal forest lands by strengthening the role of
Tribal communities in Federal land management, honoring Tribal
sovereignty, and supporting the priorities of Tribal Nations. The
Department is concerned that the discussion draft does not provide
Tribes with the same opportunities for partnerships as would be
available to States. The discussion draft also omits the Bureau of
Indian Affairs (BIA) from the bill's list of Federal land management
agencies. The Department notes that Tribes and the BIA collectively
manage over 18 million acres of Tribal and allotted trust forest lands,
respectively.
Forest and ecosystem health does not stop at the border of Tribal
lands, making it imperative that Tribes and the BIA be treated as co-
equal to states and other Federal land management agencies. The
Department would like to work with the Sponsor and the Subcommittee to
ensure parity for Tribes, Tribal lands, and the BIA. The scope of work
necessary to reduce wildfire risk in firesheds will require the
judicious use of prescribed fire. The cultural use of fire by Tribes is
essential and may offer new solutions to ongoing barriers. We also note
that the draft bill contains inconsistent terminology related to Tribes
and Tribal Governments. The Department would like to work with the
Sponsor and the Subcommittee to ensure the proper terms are used in
each section to ensure the correct Tribal entity is captured for the
intended purpose. Finally, Tribes often have historic, cultural, and
spiritual ties and reserved treaty rights to non-Tribal lands, such as
state and Federal lands, and we recommend requiring Tribal consultation
to ensure that Tribes are afforded the opportunity to provide input on
management of non-Tribal lands and on which data is made publicly
available.
Conclusion
Thank you for the opportunity to provide this Statement for the
Record.
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