[Congressional Record Volume 155, Number 171 (Wednesday, November 18, 2009)]
[Senate]
[Pages S11496-S11499]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. UDALL of Colorado (for himself and Mr. Risch):
  S. 2798. A bill to reduce the risk of catastrophic wildfire through 
the facilitation of insect and disease infestation treatment of 
National Forest System and adjacent land, and for other purposes; to 
the Committee on Energy and Natural Resources.
  Mr. UDALL of Colorado. Mr. President, today I am introducing, along 
with my colleague Senator Risch, the National Forest Insect and Disease 
Emergency Act of 2009.
  This bipartisan bill will provide additional tools and resources to 
the U.S. Forest Service to help address a serious natural disaster in 
many western forests--the deaths of millions of acres of trees due to 
insect infestations. This is an issue of long-standing concern in the 
West and of the utmost importance. Since my very first days in Congress 
nearly 11 years ago, I have been fighting for Colorado's forest health. 
This day has been a long time in coming for me, but it is by no means 
the end of the fight. We still have a long way to go in combating this 
problem, and it is a fight I intend to see to the end.
  The bill that Senator Risch and I are introducing today addresses any 
and all insect and disease outbreaks in our national forests. But this 
bill is in direct response to an especially pronounced epidemic of bark 
beetles in western States. This epidemic is creating serious concerns 
in our communities regarding our forested regions, the recreational 
economy of these areas, and water supplies and infrastructure that 
exist on these lands.
  In essence, this bill is about securing our communities from a 
natural threat--a threat that is as potentially devastating and 
disruptive as a hurricane or an earthquake. This threat is a function 
of both human actions and natural processes--especially global climate 
change.
  I recently had the chance to show one of our colleagues the 
devastating impact of the bark beetle epidemic. Senator John McCain 
joined me at a hearing of the National Parks Subcommittee, which I 
chair, in August in Estes Park, CO. Senator McCain and I saw firsthand 
the march of the bark beetle as it is making its way through Rocky 
Mountain National Park. We were both struck by the extent of dead trees 
colored rust red by this insect.
  Bark beetles and other insects that feed on trees are a natural part 
of the forest ecology. When present at normal levels, they provide 
benefits to the forest ecology by thinning dense tree stands, creating 
openings for wildlife, and promoting cyclical regrowth.
  Today, various parts of the U.S.--but especially western States--
continue to experience unnaturally large-scale infestations of bark 
beetles and other insects that have resulted from past policies and 
warming climate conditions.
  Recent periods of drought have weakened the trees on Forest Service 
land and caused the trees to be more susceptible to fire and insects. 
In addition, population growth on land adjacent to Forest Service land 
has exacerbated the threats posed by insect-killed trees by placing 
large numbers of citizens, homes, and businesses at greater risk of 
catastrophic wildland fire.
  And because hundreds of miles of power transmission lines and dozens 
of communication sites are surrounded by dead trees that will fall due 
to rotted root systems, the probability that trees will fall on power 
transmission lines, thereby resulting in wildfires and power 
transmission disruptions for long periods of time, has substantially 
increased.
  Falling dead trees are also a hazard along hundreds of miles of roads 
and trails, threatening the safety of motorists and recreationists and 
disrupting access to, and through, Forest Service land. Hundreds of 
developed recreation sites, including campgrounds, picnic areas, and 
trailheads, contain dead trees that threaten recreationists. If these 
dead trees are not removed, these developed recreation sites will need 
to be closed to preserve public safety. We are in fact experiencing 
these closures in Colorado.
  Moreover, parcels of Forest Service land in many locations contain 
headwaters of water supplies for many communities. Severe wildfires 
that remove vegetative cover pose a threat to the quantity and quality 
of water by exposing soil to erosion, thereby causing a transfer of 
sediment to rivers, reservoirs, and water conveyance systems. In other 
words, the fire threats posed by these dead trees can have serious 
implications to providing water not only to local communities, but also 
to major cities downstream that rely upon rivers and streams flowing 
from forested mountain regions.
  All of these concerns demand that we take action to help address 
these threats. That is what this bipartisan bill does.
  It does so by establishing ``insect emergency areas''--that is, areas 
defined by the Forest Service as experiencing significant tree 
mortality that

[[Page S11497]]

results in increased wildfire threats and risks to people and 
infrastructure from falling dead trees. These areas would be in the 
States from the Rocky Mountains to the Pacific coast, States that are 
experiencing large-scale insect outbreaks.
  Within these areas, the Forest Service would be directed to provide 
priority treatment to reduce these threats. The Forest Service would 
also be allowed to apply funds from the Agricultural Credit Act 
program, which compensates individuals for removing biomass for 
productive uses, towards the removal of beetle-killed trees.
  The bill also provides incentives to convert this removed vegetation 
into biofuels.
  It allows the Forest Service to apply the streamlined National 
Environmental Policy Act provisions to expedite environmental analysis 
of the treatment work that is urgently needed in these high-priority 
emergency areas.
  In addition to this focus on emergency areas the bill authorizes an 
important tool to help communities respond to wildfire threats on 
nearby Forest Service land. The States of Colorado and Utah have had 
the benefit of this tool since it was provided by Congress in 2000. 
This tool, called the ``Good Neighbor Authority,'' allows the Forest 
Service to contract with state foresters to enter Forest Service lands 
and implement treatments to reduce threats next to homes and private 
property whose owners have, in many cases, removed dead trees and 
performed treatments on their own property adjacent to Forest Service 
land. This program has been very successful, and the bill we are 
introducing today will allow all states to benefit from this authority 
and make it permanent law.
  The bill also helps the Forest Service more effectively implement 
``stewardship contracting'' as a tool for fuels treatment work. This 
contracting, which is distinct from traditional timber sale contracts, 
allows the Forest Service to fashion agreements to perform treatment 
for trees--like insect-killed trees--that may not have high commercial 
value. This program has also been extremely successful in helping to 
reduce fire threats in areas that do not possess high commercially 
valued timber.
  However, the Forest Service has not had the funding it needs to use 
this tool more extensively. As a result, the bill would make this 
``stewardship contracting'' program permanent, and it would eliminate 
the requirement that the Forest Service set aside funds in the very 
unlikely event that it would have to cancel these contracts and pay 
back the contractors. The bill would authorize the Forest Service to 
use other funds to cancel these contracts as well as seek 
appropriations to pay for any contract cancellations. In so doing, the 
bill will help make this tool more available and allow more funds to be 
applied to urgently needed, on-the-ground treatment work.
  I have been working with Colorado communities, the Forest Service and 
stakeholders since 2000 on forest health issues and responding to this 
bark beetle threat. I have supported providing additional tools and 
resources to the Forest Service to respond to this threat, such as the 
Healthy Forest Restoration Act, and focusing increased funds in the 
high hazard wildland/urban interface near communities.
  This bill is an effort to continue providing such tools and resources 
so that we can reduce the impacts to people and property, reduce loss 
of life fighting catastrophic wildfires, and promote a more healthy 
forest ecosystem. I am relieved that we in Colorado did not experience 
a serious wildfire season this year like we have experienced in years 
past--and like we will probably face in the years ahead. But we must be 
ready to respond to these fires that will inevitably come. This bill 
takes a step in that direction. It will not solve all issues related to 
forest health or stop all fires. Fire is a necessary part of our 
forests. But the bill will help us reduce threats and promote healthy 
ecosystems and economies.
  I look forward to working with my colleagues from both sides of the 
aisle in seeing this bill passed.
  Mr. President, I ask unanimous consent that the text of the bill and 
a bill summary be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                S. 2798

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``National Forest Insect and 
     Disease Emergency Act of 2009''.

     SEC. 2. PURPOSES.

       The purposes of this Act are--
       (1) to ensure that adequate emphasis is placed on the 
     mitigation of hazards posed by large-scale infestations of 
     bark beetles and other insects through the establishment of 
     insect and disease emergency areas;
       (2) to ensure that increased resources are available within 
     each designated insect and disease emergency area to mitigate 
     hazards associated with--
       (A) falling trees;
       (B) increased fire hazards; and
       (C) the restoration of National Forest System land; and
       (3) to make permanent, as of the date of enactment of this 
     Act, existing good neighbor and stewardship contracting 
     authorities.

     SEC. 3. DEFINITIONS.

       In this Act:
       (1) Affected state.--The term ``affected State'' includes 
     each of the States of--
       (A) Arizona;
       (B) California;
       (C) Colorado;
       (D) Idaho;
       (E) Montana;
       (F) Nevada;
       (G) New Mexico;
       (H) Oregon;
       (I) South Dakota;
       (J) Utah;
       (K) Washington; and
       (L) Wyoming.
       (2) Insect and disease emergency area.--The term ``insect 
     and disease emergency area'' means an area of National Forest 
     System land--
       (A) that is located in an affected State that is not--
       (i) designated as wilderness; or
       (ii) an area recommended for wilderness in a forest land 
     and resource management plan;
       (B) in which an insect and disease infestation emergency 
     exists, as determined by the Secretary; and
       (C) that is designated by--
       (i) section 4(a); or
       (ii) the Secretary under section 4(c).
       (3) Insect and disease infestation emergency.--The term 
     ``insect and disease infestation emergency'' means an insect 
     or disease infestation that has resulted in--
       (A) a current or future increased risk of catastrophic 
     wildland fire; or
       (B) an increased threat posed by hazard trees to--
       (i) utility corridors;
       (ii) communication sites;
       (iii) roads;
       (iv) recreation sites;
       (v) water structures (such as reservoirs and water 
     conveyance systems); or
       (vi) other infrastructure.
       (4)  Map.--The term ``map'' means the map entitled ``Insect 
     Emergency Areas''.
       (5) National forest system.--The term ``National Forest 
     System'' has the meaning given the term in section 11(a) of 
     the Forest and Rangeland Renewable Resources Planning Act of 
     1974 (16 U.S.C. 1609(a)).
       (6) Secretary.--The term ``Secretary'' means the Secretary 
     of Agriculture.

     SEC. 4. DESIGNATION OF INSECT AND DISEASE EMERGENCY AREAS.

       (a) Designation.--Each area depicted on the map is 
     designated as an insect and disease emergency area under this 
     Act.
       (b) Map.--
       (1) Duty of secretary.--As soon as practicable after the 
     date of enactment of this Act, the Secretary shall file the 
     map for insect and disease emergency areas designated by 
     subsection (a) with--
       (A) the Committee on Energy and Natural Resources of the 
     Senate;
       (B) the Committee on Agriculture, Nutrition, and Forestry 
     of the Senate;
       (C) the Committee on Natural Resources of the House of 
     Representatives; and
       (D) the Committee on Agriculture of the House of 
     Representatives.
       (2) Force of law.--The map filed under paragraph (1) shall 
     have the same force and effect as if included in this 
     subsection, except that the Secretary may correct 
     typographical errors in the map and the legal descriptions.
       (3) Public availability.--The map filed under paragraph (1) 
     shall be on file and available for public inspection in the 
     appropriate offices of the Forest Service.
       (c) Designation by Secretary.--
       (1) In general.--The Secretary may designate additional 
     insect and disease emergency areas in accordance with each 
     requirement described in this subsection.
       (2) Initiation.--The designation of an insect and disease 
     emergency area may be made by the Secretary--
       (A) on the initiative of the Secretary; or
       (B) in response to a request by any Governor of an affected 
     State.
       (3) Deadline.--If the Governor of a State described in 
     paragraph (2)(B) requests the Secretary to designate as an 
     insect and disease emergency area an area located in the 
     State, the Secretary shall accept or deny the request by a 
     date that is not later than 90

[[Page S11498]]

     days after the date on which the Secretary receives the 
     request.
       (4) Limitation on delegation.--With respect to National 
     Forest System land, the Secretary, acting through the Chief 
     of the Forest Service, may delegate the authority to make a 
     designation under this subsection only to a Regional Forester 
     of the National Forest System land.
       (5) Procedure.--If the Secretary designates an additional 
     insect and disease emergency area under paragraph (1), the 
     Secretary shall--
       (A) publish a notice of the designation of the insect and 
     disease emergency area (including a map of the insect and 
     disease emergency area) in the Federal Register; and
       (B) notify--
       (i) each appropriate State; and
       (ii) the appropriate committees of Congress.
       (6) Applicability.--A designation made by the Secretary 
     under paragraph (1) shall not be subject to--
       (A) the National Environmental Policy Act of 1969 (42 
     U.S.C. 4321 et seq.);
       (B) section 322 of the Department of the Interior and 
     Related Agencies Appropriations Act, 1999 (Public Law 105-
     277; 112 Stat. 2681-289); or
       (C) any other applicable law (including regulations).

     SEC. 5. RESPONSE TO EMERGENCY DESIGNATION.

       (a) Priority Treatments.--In carrying out the management of 
     an insect and disease emergency area, the Secretary shall 
     give priority consideration to--
       (1) the removal of hazardous fuels and hazard trees on, and 
     the restoration of the health of, National Forest System land 
     located in the insect and disease emergency area; and
       (2) the provision of assistance to State and local 
     governments, Indian tribes, and private landowners for the 
     removal of hazardous fuels and hazard trees on, and the 
     restoration of the health of, each parcel of land located in 
     the insect and disease emergency area--
       (A) that is under the jurisdiction of the State or local 
     government or Indian tribe; or
       (B) the title of which is held by a private landowner; and
       (3) the making of payments under section 9011(d)(1)(B) of 
     the Farm Security and Rural Investment Act of 2002 (7 U.S.C. 
     8111(d)(1)(B)) to each individual or entity that collects or 
     harvests renewable biomass from a parcel of National Forest 
     System land located in an insect and disease emergency area.
       (b) Emergency Forest Restoration.--In implementing the 
     emergency forest restoration program under section 407 of the 
     Agricultural Credit Act of 1978 (16 U.S.C. 2206), the 
     Secretary may make payments to an owner of a parcel of 
     nonindustrial private forest land that is located in an 
     insect and disease emergency area to carry out emergency 
     measures in response to an insect and disease infestation 
     emergency under this Act.
       (c) Biomass.--Any biomass removed from a parcel of land 
     located in an insect and disease emergency area shall be 
     considered to be renewable biomass for purposes of the 
     renewable fuel standard under section 211(o) of the Clean Air 
     Act (42 U.S.C. 7545(o)).
       (d) Healthy Forest Restoration.--
       (1) Authority of secretary.--The Secretary may apply each 
     requirement described in sections 104 and 105 of the Healthy 
     Forests Restoration Act of 2003 (16 U.S.C. 6514, 6515) to 
     projects that are carried out to remove hazardous fuels and 
     hazard trees on, and to restore the health of, National 
     Forest System land that is located in an insect and disease 
     emergency area.
       (2) Judicial review.--Section 106 of the Healthy Forests 
     Restoration Act of 2003 (16 U.S.C. 6516) shall apply to each 
     project described in paragraph (1).

     SEC. 6. GOOD NEIGHBOR AUTHORITY.

       (a) State Forest Services.--
       (1) Authority of secretary.--Notwithstanding chapter 63 of 
     title 31, United States Code, and any provisions of law 
     related to competition, the Secretary may enter into a 
     contract (including a sole source contract) or agreement 
     (including an agreement for the mutual benefit of the 
     Secretary and the State), as appropriate and consistent with 
     all applicable general and specific operating procedures 
     established by the Forest Service for such contracts and 
     agreements (including labor and wage requirements), with a 
     State to permit the State to perform watershed restoration 
     and protection services on National Forest System land 
     located in the State if the State is carrying out similar and 
     complementary watershed restoration and protection services 
     on adjacent State or private land.
       (2) Authorized services.--Watershed restoration and 
     protection services described in paragraph (1) include--
       (A) the treatment of insect-infested trees;
       (B) the reduction of hazardous fuels; and
       (C) any other activity that is carried out to restore or 
     improve watersheds or fish and wildlife habitat across 
     ownership boundaries.
       (b) Administrative Provisions.--
       (1) National forest management act of 1976.--Subsections 
     (d) and (g) of section 14 of the National Forest Management 
     Act of 1976 (16 U.S.C. 472a) shall not apply to services 
     performed under a contract or other agreement under 
     subsection (a)(1).
       (2) Assumption of liability.--The State shall assume 
     liability, to the extent allowed by Federal, State, and local 
     law, for the actions or omissions of employees or 
     subcontractors of the State in preparing or implementing a 
     contract or agreement under this title.
       (3) Subcontracts.--A State may subcontract, to the extent 
     allowed by State and local law, to prepare or implement a 
     contract or agreement under this title.
       (4) Dispute resolution.--Any dispute under a contract or 
     agreement under subsection (a)(1) shall be resolved in 
     accordance with, as applicable--
       (A) the dispute clause of the contract or agreement;
       (B) the Contract Disputes Act of 1978 (41 U.S.C. 601 et 
     seq.); or
       (C) section 1491 of title 28, United States Code.
       (c) Retention of Responsibilities Under National 
     Environmental Policy Act of 1969.--With respect to any 
     watershed restoration and protection service on National 
     Forest System land that is proposed to be carried out by a 
     State under subsection (a), any decision required to be made 
     under the National Environmental Policy Act of 1969 (42 
     U.S.C. 4321 et seq.) may not be delegated to the State or any 
     officer or employee of the State.
       (d) Applicability.--
       (1) In general.--Subject to paragraph (2), the authority 
     provided by this section applies only to National Forest 
     System land located in affected States.
       (2) Secretary of the interior.--With respect to public land 
     that is located in an affected State and administered by the 
     Secretary of the Interior (acting through the Bureau of Land 
     Management), the Secretary of the Interior may carry out 
     activities under this section on the public land.

     SEC. 7. STEWARDSHIP CONTRACTING.

       (a) Cancellation Costs.--
       (1) In general.--Notwithstanding any other provision of 
     law, including section 304B of the Federal Property and 
     Administrative Services Act of 1949 (41 U.S.C. 254c), the 
     Secretary may not obligate funds to cover the cost of 
     canceling a Forest Service multiyear stewardship contract 
     under section 347 of the Department of the Interior and 
     Related Agencies Appropriations Act, 1999 (16 U.S.C. 2104 
     note; Public Law 105-277) until the date on which the 
     multiyear stewardship contract is cancelled.
       (2) Costs of cancellation or termination.--The costs of any 
     cancellation or termination of a multiyear stewardship 
     contract described in paragraph (1) may be paid from any 
     appropriations that are made available to the Forest Service.
       (3) Anti-deficiency act.--In the case in which the 
     appropriations described in paragraph (2) are exhausted--
       (A) the exhaustion shall not be considered to be a 
     violation of section 1341 of title 31, United States Code; 
     and
       (B) the Secretary shall seek a supplemental appropriation.
       (b) Permanent Authority.--Section 347(a) of the Department 
     of the Interior and Related Agencies Appropriations Act, 1999 
     (16 U.S.C. 2104 note; Public Law 105-277) is amended by 
     striking ``Until September 30, 2013, the'' and inserting 
     ``The''.

     SEC. 8. EFFECT.

       Nothing in this Act affects or diminishes the rights of any 
     owner of private property.
                                  ____


  National Forest Insect and Disease Emergency Act of 2009 Section by 
                            Section Summary


                           Sec. 1 Short Title

       The National Forest Insect and Disease Emergency Act of 
     2009


                            Sec. 2 Purposes

       (1) To ensure adequate emphasis is placed on the mitigation 
     of hazards posed by large-scale infestation of bark beetles 
     and other insects through the establishment of insect and 
     disease emergency area;
       (2) To ensure increased resources are available within each 
     designated insect and disease emergency area to mitigate 
     hazards associated with falling trees, increased fire hazards 
     and the restoration of national forest system land, and;
       (3) To make permanent, as of the date of enactment of this 
     Act, existing good neighbor and stewardship contracting 
     authorities.


                           Sec. 3 Definitions

       This section describes which states are included in the 
     provisions of this bill, as well as what constitutes an 
     emergency area.
       (1) Affected State: Those States that this bill includes. 
     AZ, CA, CO, ID, MT, NV, NM, OR, SD, UT, WA, WY.
       (2) Insect and Disease Emergency Area: Where the action 
     mechanisms of this bill can be used.
       (3) Insect and Disease Infestation Emergency: This section 
     gives direction on what constitutes an emergency for action 
     as described in this bill.
       (4) Map: self descriptive.
       (5) National Forest System: self descriptive.
       (6) Secretary: of Agriculture


        Sec. 4 Designation of Insect and Disease Emergency Areas

       This section describes how the `map' is determined--either 
     by the Secretary or by a request to the Secretary from the 
     affected states' Governors. It also describes the public 
     notification process and outlines how NEPA and any other 
     applicable laws apply. This section essentially says the 
     insect and disease emergency areas are lines on a map--
     without effect. The analysis of effects occurs when an action 
     on the ground is proposed.

[[Page S11499]]

                Sec. 5 Response to Emergency Designation

       (a) Priority Treatments: This section describes priorities 
     for treatment--not in order of preference. The intent is for 
     the agency to treat the identified areas before general 
     forest.
       The section also allows for assistance to State and local 
     governments, Indian tribes and private landowners for the 
     removal of hazardous trees and restoration of the health of 
     land located in the insect and disease emergency area.
       (b) Biomass Use: This provision states priority should be 
     given to those areas that are in the insect and disease 
     emergency areas when determining BCAP funded areas. BCAP is 
     to assist with the collection, harvest, storage, and 
     transportation of biomass material. `The Secretary shall make 
     a payment for the delivery of eligible material to a biomass 
     conversion facility to (1) a producer of an eligible crop 
     that is produced on BCAP contract acreage; or (2) a person 
     with the right to collect or harvest eligible material' The 
     Biomass Crop Assistance Program (BCAP) provides financial 
     assistance to producers or entities that deliver eligible 
     biomass material to designated biomass conversion facilities 
     for use as heat, power, biobased products or biofuels. 
     Initial assistance will be for the collection, harvest, 
     storage and transportation costs associated with the delivery 
     of eligible materials.
       (c) Emergency Forest Restoration: This section provides 
     funding assistance through grants for people who remove 
     biomass from private property. 'The Secretary may make 
     payments to an owner of nonindustrial private forest land who 
     carries out emergency measures to restore the land after the 
     land is damaged by a natural disaster.' This section adds the 
     emergency areas described by this bill under this authority.
       (d) Biomass: This amends the definition of the renewable 
     fuels standard. The RFS specifically excludes material from 
     NFS lands--this would include those lands in the insect and 
     disease emergency area.
       (e) Healthy Forest Restoration: This section allows the 
     Forest Service to apply the streamlined NEPA provisions of 
     the Healthy Forest Restoration Act to hazardous fuels 
     removal, hazard tree removal and restoration of the health of 
     National Forest land in the insect and disease emergency 
     areas.


                     Sec. 6 Good Neighbor Authority

       This provision makes the Good Neighbor authority permanent 
     for all states.


                     Sec. 7 Stewardship Contracting

       This provision makes Stewardship contracting permanent. It 
     also changes the current requirement of the Federal 
     Acquisition Regulation to fund costs of cancelling a contract 
     at the time of award for a multi-year stewardship contract to 
     a requirement for payment of contract cancellation at the 
     time such cancellation may occur.


                             Sec. 8 Effect

       This section says that nothing in this act diminishes the 
     right of private property owners.

                          ____________________