[Congressional Record Volume 149, Number 170 (Friday, November 21, 2003)]
[Senate]
[Pages S15376-S15379]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                        THE HEALTHY FORESTS BILL

  Mr. CRAIG. Mr. President, my colleague from Oregon is on the Senate 
floor. We thought for a few moments we would talk about something that 
just passed the Senate which we think is landmark forestry legislation. 
It has come in several forms over the last year and a half. But we here 
in the Senate call it Healthy Forests. The President calls it Healthy 
Forests.
  The House and Senate have worked together over the last year to try 
to resolve an issue that the American public has seen in the form of 
devastating wildfires across our public land and forests for the last 
several years. Of course, we watched the tragedy of San Bernadino in 
southern California and the greater Los Angeles area just in the last 
month and a half that was truly devastating not only to 3,700 homes and 
human life but hundreds of thousands of acres of wildlife habitat and 
watershed.
  Clearly, as chairman of the Forestry Subcommittee of the Energy and 
Natural Resources Committee, Senator Wyden and I have been working for 
the last several years to resolve this issue. My colleague from Oregon 
is the ranking member of that Forestry Subcommittee. We have known that 
the team effort in a bipartisan way to resolve this issue would produce 
a resolution. The answer is that it has.
  The Senate and the House just passed a conference report that has our 
fingerprints all over it. Frankly, we are mighty proud of it. It moves 
us in the right direction of active management of these dead and dying, 
bug-infested, and drought-impacted forested areas that are creating 
phenomenal fuel loads that the American public has seen played out in 
wildfires across our western public land and forests for the last good 
number of years. It is a clear step in the right direction. It is a 
cautious step. We certainly do not take away the right of appeal, but 
we limit it.
  We don't want an effort on the part of the Forest Service to do what 
we asked them to do to be tied up in the courts endlessly in many 
instances as it has been over the last several years. We also want them 
to be selective. We targeted most of our efforts in what we call the 
wildland- urban interface which will impact most of those forested 
areas where there is a substantial human presence in the form of homes 
and, obviously, communities.
  At the same time, we also recognize that the problem exists elsewhere 
across our forested landscape. We allow that treatment of those areas 
with caution.
  We have designated old growth definitions for protection. We have 
also limited it in the next decade to 20 million acres. For those 
critics who would suggest that this is a ``ticket to log,'' that is 
purely political rhetoric to solve a political constituency problem 
that they have because they can't justify anymore the phenomenal loss 
of wildlife and watershed and habitat that we have seen over the last 4 
or 5 years.
  It is a cautious approach. It is certainly going to be limited in 
character. Why? Because we want to prove to the American people that 
there is a way to manage our forests in a right and reasonable fashion; 
that it does not do what we did historically 40 years ago--logged by 
clear-cut or logged with substantial problems of erosion and watershed 
degradation and all of that.
  This is a new day. We want to treat our forests differently. But we 
also understand that if we don't do something, our forestry experts 
have told us that we could see devastating wildfires for decades to 
come that will destroy the watershed, the wildlife habitat, and release 
huge amounts of carbon into the atmosphere; and, oh, yes, by the way, 
destroy a very valuable resource in the form of timber that might in 
some areas be allowed for logging or for reasonable approaches of 
commercial value of the thinning and cleaning.
  All of that said, we have worked hard to produce a bill. My colleague 
from Oregon is on the Senate floor. I will yield to him for any 
comments he would want to make. We have other colleagues here who I 
think are going to address the issue of prescription drugs and Medicare 
reform.
  But today is an important day in the Senate in the area of forestry 
and forest and public land management. I am proud of the work we have 
done.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. WYDEN. Mr. President, before he leaves the floor, I want to 
commend Senator Craig. He and I have been working with Senator 
Feinstein in particular on this legislation in the Energy and Natural 
Resources Committee. We have really been a triumvirate with respect to 
this issue.
  I am so pleased to have a chance to be on the Senate floor today to 
speak on this conference report. This is the first forest management 
bill to pass both Houses in the U.S. Congress in 27 years. The fact is, 
the forestry legislation that is now on its way to the President of the 
United States will protect our communities. It will offer the first 
legal protection for old-growth trees, and it will create jobs.
  As the distinguished Senator from Idaho, Mr. Craig, just noted, this 
legislation came together because at every stage of the process 
Senators said we want to get beyond the old rhetoric. We want to get 
beyond the polarization that has dominated this issue in the past, and 
we want to, in particular, take meaningful action to protect our 
communities.
  That is what this legislation has been all about. The fires in the 
West, as the Senator from Idaho has known through his field hearings 
and other such sectors, have literally be infernos. We just felt it was 
critical to take steps to ensure that the rural West wouldn't be 
sacrificed.
  I am proud today to rise in support of the conference report on H.R. 
1904. This conference report is based upon the Senate-based wildfire 
bill compromise

[[Page S15377]]

brokered by Senators Feinstein, Craig, Cochran, Domenici and myself 
passed by the Senate on October 30. With the good faith efforts of 
Representatives Pombo, Goodlatte, and my friend and colleague from 
Oregon, Representative Walden, this conference report has made only 
minor changes to the Senate approved version. This legislation will get 
us back on track restoring forests, protecting the environment, and 
putting people back to work in rural communities.
  This conference report is the first forest management bill to pass 
both houses of the United States Congress in 27 years. The last time 
Congress was able to send a forest management bill to the President of 
the United States, the President was Gerald Ford and it was the 
Nation's bicentennial. The bill was the National Forest Management Act 
of 1976.
  The world has changed a lot in the last 27 years. Forest management 
and forest-related economies have changed dramatically. Americans have 
grown more interested in protecting the environment while using natural 
resources to support rural communities like those in my home state of 
Oregon. The conference report we passed today reflects some of those 
changes: it contains the first ever statutory recognition and 
meaningful protection of old growth forests and large trees, while 
streamlining a National Environmental Policy Act process that has 
seemed to favor paperwork over forest health.
  This conference report will streamline restorative forestry in 
forests at risk of unnaturally catastrophic fires resulting from 100 
years of fire suppression. It provides the authorities and guidelines 
for the Forest Service and Bureau of Land Management to treat unhealthy 
forests while preserving public input and protecting old growth it's a 
truly balanced approach to forest health.
  There were times when I was not sure this day would come. After the 
Senate passed our version of H.R. 1904 on October 30, 2003, there was 
doubt and disagreement on how to proceed with the House of 
Representatives. As a solution to the gridlock threatening the final 
passage of wildfire legislation, Senator Feinstein and I proposed 
informal meetings. The staffs of the two Houses reached the agreement 
on Title I, the forest health title, through these informal meetings 
that allowed for a formal conference on all the rest of the Titles. 
That conference was held Thursday, November 20. I lost a couple of 
provisions for Oregon that I cared deeply about. But, I am overall 
pleased that the forest health provisions worked out so diligently by 
both Houses were preserved intact.
  The Senate said there were four features that were particularly 
important to us to maintain in the legislation.
  First, we said we have to have the funding to do the job right. We 
are not going to get this work done without funding to get this work 
done on the ground. I am very pleased with the conference report in 
that it keeps that funding intact. I am very pleased that the 
conference report will authorize $760 million annually for the 
projects, a $340 million increase over current funding. It also ensures 
that we spend the money in the right place. That is in the area known 
as the wildland/urban interface. The Senate took one approach, the 
House had other ideas. With some very minor tweaking, this, too, was 
preserved in terms of the work done by the Senate.
  On the old-growth part of the legislation, I am especially pleased 
because all Americans value these unique treasures, our very large old-
growth trees. Professor Jerry Franklin of the University of Washington 
is considered the leading authority on this subject. He says our 
provisions with respect to old growth are a major step forward. I 
am particularly pleased and honored to have Dr. Franklin's comments on 
this. He is the authority, as Chairman Craig knows, on this subject. 
For those who have followed the environmental aspects of the forestry 
legislation, let the word go out that Professor Jerry Franklin from the 
University of Washington, one of the most distinguished scholars in 
this field--not just now but at any time--believes this is a 
significant step forward in terms of environmental protection.

  We were able to protect the public involvement aspect of forestry 
policy. Citizens all across this country--whether in Senator Dodd's 
part of the world in Connecticut or any other part of the country--feel 
passionately about their natural resources and want to be involved in 
the debate over this process. As Senator Craig has noted, we have 
streamlined the process but we have preserved every single opportunity 
for the public to comment. Every opportunity that exists today, for the 
public to comment on forestry legislation, has been preserved in this 
bipartisan compromise.
  Finally, the Senate conferees did very well at defending the Senate 
compromise. The Senate kept the number one issue the environmental 
community was concerned about off the table and preserved the Senate 
compromise position on judicial process. In negotiating this bill, I 
did not accept the notion that any special deference beyond the 
deference that is ordinarily due should be given to any agency 
determinations under the Act, except where explicitly provided in the 
statute's text. In fact, the conference report expressly rejected the 
House bill's language giving special deference to agency 
determinations.
  This section, section 106 of Title I, limits venue for these 
hazardous fuels reduction cases exclusively to the district court for 
the district in which the federal land to be treated is located. It 
also encourages expedited review of jurisdictional and substantive 
issues leading to resolution of cases as soon as practicable. In 
addition, this section limits the duration of any injunctions and stays 
pending appeal to 60 days and provides an opportunity to renew an 
injunction and stay pending appeal. It also requires the parties to the 
action to present updated information regarding the status of the 
authorized hazardous fuel reduction project in connection with such 
injunction and stay renewals. This last provision is intended to 
provide an incentive and opportunity for the parties to the complaint 
to work together to resolve their differences or explain to the judge 
why that is not possible over time.
  This section also directs the courts to balance the impact to the 
ecosystem likely affected by the project of the short- and long-term 
effects of undertaking the agency action, against the short- and long-
term effects of not undertaking the agency action. There can be 
environmental risks associated with both management action and 
inaction. America is acutely aware that the past few fire seasons have 
been among the worst in modern history in terms of effects on natural 
resources, people and private property. Air pollution problems are 
rising and wildland fires have forced thousands to evacuate. In 2002 in 
one state alone, Colorado, 77,000 residents were evacuated for periods 
of a few days to several weeks. Seventeen thousand people in Oregon's 
Illinois Valley were on half-hour evacuation notice the same year. In 
2002, millions of dollars of property damage included the destruction 
of over 2300 homes and other buildings. It is becoming increasingly 
evident that while one cannot uncut a tree, similarly one cannot unburn 
a forest. In hazardous fuel reduction projects it is important to focus 
on the removal of the right vegetation to modify fire behavior--
primarily surface and ladder fuels.
  At the same time, there can also be adverse environmental 
consequences of hazardous fuel reduction projects, including but not 
limited to loss of wildlife habitat, increased sedimentation in 
streams, soil compaction, and fragmenting of unroaded areas. As 
documented by the General Accounting Office, poorly designed vegetation 
treatments in the past have contributed to increased fire risk by 
removing the large and fire resistant trees, while leaving highly 
flammable smaller trees behind.
  This Act is intended to foster prompt and sound decision making 
rather than perfectly executed procedures and documentation. 
Environmental analyses should concentrate on issues that are essential 
to the proposed projects rather than on amassing needless detail. 
Section 106 is intended to reinforce Congress's desire that the 
totality of circumstances be assessed by the courts to assure that 
public interest in the environmental health of our forests will be 
served.
  Let me be more specific about a few of the other provisions of this 
legislation. The Senate also prevailed in

[[Page S15378]]

keeping the Senate funding requirements and levels, preserving the 
Senate NEPA language on at-risk lands outside the wildland urban 
interface; preserving the Senate old growth and large tree protections, 
and preserving the Senate administrative appeals process.
  The legislation changes the environmental review process so the 
Forest Service still considers the effects of the proposed project in 
detail, but can focus its analysis on the project proposal, one 
reasonable alternative that meets the project's goals and the 
alternative of not doing the project, instead of the 5-9 alternatives 
now often required. In the highest priority areas within one mile and a 
half of communities, the Forest Service need only study the proposed 
action and no alternatives. There is no relaxation from current law in 
any areas, however, in how closely the Forest Service must study the 
environmental effects of the project it is proposing to undertake.

  The changes that were made to the Senate compromise on H.R. 1904 
include more relief and respect for rural forested communities. This 
conference report allows a single action alternative to be analyzed 
under the National Environmental Policy Act inside the wildland urban 
interface defined as 1.5 miles from the community boundary. Within the 
area identified for protection as the wildland urban interface under a 
community fire plan, the agency is not required to analyze the ``no 
action'' alternative under NEPA, but is required to analyze two action 
alternatives. This conference report also limits the treatment of 
diseased forests to those with epidemics, whereas the Senate compromise 
allowed the treatment of forests with only an infestation of bugs.
  This conference report preserves all current opportunities for public 
input and appeal, while streamlining the appeals process and 
eliminating some of its worst abuses. Not one current opportunity for 
public comment would be lost under the compromise. The compromise will 
require the Forest Service to rewrite their appeals process using the 
pre-decisional appeals and comment process that has been used by the 
Bureau of Land Management since 1984. It works by encouraging the 
public to engage in a collaborative process with the agency to improve 
projects before final decisions have been rendered upon them by the 
agency. This model places a premium on constructive public input and 
collaboration, and less emphasis on the litigation and confrontation of 
the post-decisional appeals process currently used by the Forest 
Service. The compromise is designed to move from the current model of 
confrontation, litigation and delay to one which places a premium on 
constructive, good faith public input. Whereas in the past, parties 
could ``sandbag'' the appeals process by not raising salient points in 
hopes of later derailing the entire proposed action in the courts, 
parties would not be allowed to litigate on issues they had failed to 
raise in the comment or appeal period unless those issues or critical 
information concerning them arose after the close of the appeals 
process--as a result of the revised agency decision.
  This conference report provides the first-ever statutory recognition 
and meaningful protection of old growth forests. Never before has 
Congress recognized by statute the importance of maintaining old growth 
stands. Under the compromise, the Forest Service must protect these 
trees by preventing the agency from logging the most fire-resilient 
trees under the guise of fuels reduction under these new authorities.
  The issue of old growth continues to be the subject of considerable 
scientific inquiry and debate. What is not subject to debate is the 
special character and ecological value of old growth. Clearly, it is 
the intent of Congress that in interpreting the provisions of section 
102(e), federal agencies affirmatively recognize the special importance 
of old growth forests while maintaining the deference they are due 
unless their determinations are arbitrary, capricious or an abuse of 
discretion.
  This legislation is designed to address past mismanagement of federal 
forests, and to protect old-growth so that we don't repeat the mistakes 
of the past. The majority of old-growth stands are healthy, and don't 
require management. In some old-growth stands in the drier parts of the 
west, where natural fire regimes have been disrupted by a century of 
fire suppression, silviculture with a minimum of disturbance can be 
appropriate that will restore natural forest structure and fire 
regimes.
  Where old growth stands are healthy, as they are throughout much of 
the forest on the west side of the Cascade Ridge in Oregon, the 
compromise requires that they be ``fully maintained.'' Section 102(e) 
of the conference addresses the treatment by the Forest Service and 
Bureau of Land Management of old growth stands that may occur on 
authorized hazardous fuels treatment projects. Since recently issued 
resource management plans of the two agencies are supposed to provide 
guidance on the treatment of old growth Section 102(e) directs the 
agencies to rely on the old growth definitions contained in resource 
management plans that were established in the ten-year period prior to 
the enactment of the legislation.
  Older plans must be reviewed, and if necessary, revised and updated, 
to take into account relevant information that was not considered in 
developing the existing definitions or other direction relating to old 
growth. Any revision or update must meet the requirements of subsection 
102(e)(2), which requires the Secretary, in carrying out authorized 
hazardous fuels treatment projects, to fully maintain, or contribute 
toward the restoration of, the structure and composition of 
structurally complex old growth stands according to the pre-fire 
suppression old growth conditions characteristic of the forest type, 
taking into account the contribution of the stand to landscape fire 
adaptation and watershed health, and retaining the large trees 
contributing to old growth structure. Nothing in the bill is intended 
to prohibit or restrict establishing other standards for old growth 
stands where purposes other than hazardous fuel management are being 
pursued under other authorities.
  The intent of section 102(e)(4) is to avoid disrupting resource 
management plan revisions that are already underway. Comprehensive 
revision of older resource management plans may be preferable to 
separate amendments or updates for old growth standards, and the bill 
allows additional time for operating under older plans where revisions 
are in progress.
  In negotiating this bill, I did not agree to the imposition of any 
more restrictive standards than the ``substantial supporting evidence'' 
explicitly set forth in the statute for members of the public's 
identification of old growth stands during scoping in subsection 
102(e)(4)(C).

  The compromise makes it less likely that old growth will be harvested 
under current law by mandating the retention of large trees and 
focusing the hazardous fuels reduction projects authorized by this bill 
on thinning small diameter trees.
  In moving this legislation, it was my intent to see that the right 
work get done in the right way in the right place using the right 
tools. In other words, to see that the risk of catastrophic fire is 
reduced through legitimate hazardous fuel reduction activities.
  These activities are referenced in Section 101(2) of the bill and are 
spelled out in detail in the Implementation Plan for the Comprehensive 
Strategy for a Collaborative Approach for Reducing Wildland Fire Risk 
to Communities and the Environment, dated May 2002. That document lists 
the following tools as being appropriate for hazardous fuel reduction: 
prescribed fire, wildland fire use, and various mechanical methods such 
as crushing, tractor and hand piling, thinning, and pruning.
  In other words, this bill does not authorize a new wave of large tree 
commercial timber sales. It must be noted that the bill emphasizes the 
avoidance of the cutting of large trees in Section 102(f), where it 
specifically states that protects must focus largely on small diameter 
trees, thinning, strategic fuelbreaks and prescribed fire to modify 
fire behavior and that projects maximize the retention of large trees.
  Section 104(f) requires the agencies to focus on small diameter 
trees, thinning, fuel breaks and prescribed fire to modify unnaturally 
severe fire effects, and to maximize the retention of large trees. 
Large trees are important ecological components of most forest systems. 
In particular, they are often more fire and insect resistant

[[Page S15379]]

than smaller diameter trees, and therefore, with rare exceptions do not 
contribute to hazardous fuels overloads. They are also considered to be 
critical ecological legacies because they are essential to the desired 
future structure and composition of forests. However, large trees are 
now often underrepresented components of many forest types. In those 
forest types, forest health will not be restored without a diversity of 
age classes and types, including large trees.
  Section 102(f) deals with federal agency treatment of large trees in 
authorized hazardous fuels treatment projects outside of the areas 
identified under section 102(e) and requires the Forest Service and 
Bureau of Land management to maximize the retention of large trees, as 
appropriate for the forest type, to the extent that the trees promote 
fire-resilient stands. From an ecological standpoint, and in regards to 
modifying future fire behavior, large trees are the very last ones that 
should be removed, if at all.
  This is an appropriate limitation in that the last trees that need to 
be removed from an ecological sense, as well as to modify fire 
behavior, are the large trees. The clear intent of this legislation is 
to focus primarily on surface fuels such as brush and dead and down 
woody material and ladder fuels consisting of small diameter trees and 
saplings.
  This direction is very important to me and I intend on remaining 
vigilant and responsive to concerns where projects veer from this 
important direction.
  This conference report restores balance to healthy forests 
legislation by authorizing $760 million annually for these projects. 
This is a $340 million authorized increase over the currently 
appropriated level of $420 million for hazardous fuel reduction 
projects. The conference report maintains the requirement that at least 
50 percent of funds spent on restorative projects to be spent to 
safeguard communities which face the greatest risks from fire.
  This conference report also includes improved monitoring language 
that will help Congress track the successes and failures of this 
legislation. Section 104(g) requires the Secretaries to monitor and 
assess the results of authorized projects and to report on the progress 
of projects towards forest health objectives. This evaluation and 
reporting will help guide the agencies in future hazardous fuels 
reduction treatments in existing project areas and in other project 
areas with similar vegetation types.
  The Senate intends that treatments authorized under this Act be 
directed to restoration of fire-adapted ecosystems as well as hazard 
reduction. The threat of uncharacteristically severe fires and insect 
and disease outbreaks decreases when the structure and composition of 
fire-adapted ecosystems are restored to historic conditions. Thus, 
section 104(g)(4) directs agencies to evaluate, among other things, 
whether authorized projects result in conditions that are closer to the 
relevant historical structure, composition and fire regime.
  The Senate recognizes that fire ecologists have learned that fire is 
a landscape process and that treatments are most effective when 
conducted in accordance with landscape- or watershed-scale analyses. 
Section 104(g)(4) requires the agencies to evaluate project results in 
light of any existing landscape--or watershed--scale direction in 
resource management plans or other applicable guidance or requirements. 
Managers should also evaluate and use available relevant scientific 
studies or findings.
  Section 104(g) also requires the Secretaries, in areas where 
significant interest is expressed, to establish a multiparty monitoring 
and evaluation process in order to assess the environmental and social 
effects of authorized hazardous fuel reduction projects and projects 
implemented pursuant to section 404 of this Act. Many forest-dependent 
communities support multiparty monitoring, which simply means that 
communities and individuals may participate with the Federal agencies 
in monitoring the projects. The Managers recognize the importance of 
multiparty monitoring as a way to rebuild trust between rural 
communities and the agencies.
  In conclusion, we have a lot of work to do. We will have others raise 
questions about the ramifications of this legislation as it relates to 
the National Environmental Policy Act and other concerns. We want to 
get this done and implemented properly. As Chairman Craig and I have 
seen in the subcommittee on forestry, we know, for example, it will be 
tough to get all the funds that are going to be necessary to do these 
projects on the ground. Our bipartisan coalition is committed to doing 
that. Then we can turn our coalition to looking at other areas where we 
can find common ground and move forward in the natural resources area.
  A lot of people never thought we would get to this day. Look at the 
editorials that have been written, some of the interest groups with 
respect to this legislation, and some of the attacks made on Members. I 
recall some of those to which Senator Feinstein was subjected. She 
showed the courage to make it clear she would hang in there and work to 
get this legislation enacted.
  We had a lot of Members of the Senate on both side of the aisle say 
they would put the public interests first, they would concentrate on 
protecting communities. That is what has brought us to this day.
  I want to thank the following Senate staff for all their hard work on 
this important legislation: Lance Kotschwar and West Higginbothom of 
the Senate Agriculture Committee staff, Frank Gladics and Kira Finkler 
of the Senate Energy and Natural Resources staff, Calli Daly of Senator 
Craig's staff, John Watts of Senator Feinstein's staff and Sarah 
Bittleman and Josh Kardon of my own staff. Josh Penry and Doug 
Crandall, staff from the House Resources Committee, did yeomen's work 
to get this bill to conference. These folks, and many others, put in 
countless and numerous evenings and weekends into this bill and they 
deserve our appreciation for their hard work and dedication.
  This legislation will now go to the President's desk for his 
signature. I look forward to that happening. Just this week it snowed 
in Oregon--the fire season has passed for another year but it will come 
again next year as sure as the spring follows the winter. With this 
bill in place as law I am hopeful that we will be a bit better 
prepared.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. DODD. Mr. President, are we in morning business?
  The PRESIDING OFFICER. That is correct.

                          ____________________