[Congressional Record (Bound Edition), Volume 151 (2005), Part 22]
[Senate]
[Pages 30485-30487]
[From the U.S. Government Publishing Office, www.gpo.gov]




                      APPEALS REFORM ACT LANGUAGE

  Mr. CRAIG. Mr. President, I rise today to express my concern that 
language was not included yet again by this Congress in the 
supplemental bill--which is now embodied in Defense appropriations--to 
clarify that categorical exclusions as used by the U.S. Forest Service 
under the Appeals Reform Act of 1993 are exempt from comment and 
appeals.
  That sounds technical, doesn't it? It isn't so technical if you 
believe in the Healthy Forest Act and the ability of the Forest 
Service, as so prescribed by the Congress, to operate under that 
specific act. A legislative fix is desperately needed as projects 
continue to pile up and create additional backlog for our U.S. Forest 
Service.
  At the heart of this issue is when, where, and how the public is 
included in the execution of categorical exclusions extended in the 
projects. By definition, categorically excluded projects are categories 
of action which do not individually or cumulatively have a significant 
effect on the human environment and therefore normally do not require 
further analysis in either an environmental assessment or an 
environmental impact statement. The Forest Service requires scoping on 
each and every project on Forest Service land in which they want to 
utilize the categorical exclusion.
  Let me quote from the Forest Service Environmental Procedures 
Handbook:

       Scoping is required on all proposed actions, including 
     those that would appear to be categorically excluded.

  In other words, those actions the Forest Service may take on Forest 
Service ground in a given watershed that we have said are excluded 
under the Healthy Forest Act, as it relates to the National 
Environmental Policy

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Act--meaning an environmental impact statement--we still say the Forest 
Service scoping is required on all proposed actions, including those 
that would appear not to need a categorical exclusion.

       If the responsible officials determine, based on scoping, 
     that it is uncertain whether the proposed action may have a 
     significant effect on the environment, prepare an EA [and 
     that is chapter 40]. If the responsible official determines, 
     based on scoping, that the proposed actions may have a 
     significant environmental effect, prepare an EIS.

  That is an environmental impact statement.
  In other words, we have tried to be very careful within the law to 
make sure that happens. I am going to submit for the Record a much more 
detailed understanding of what exactly we mean because it is critically 
important at this moment that we allow the Forest Service to get back 
on track.
  Having said that, I have talked legalese as it relates to a specific 
act of Congress and a law that is in place now for our Forest Service 
to act. What does it mean in real life, what does it mean on the 
ground? I think all of us witnessed the fires of late fall and early 
winter in the greater Los Angeles watershed that were burning the scrub 
oak in the foothill country in back of Los Angeles. In most instances, 
those fires in the past have not only consumed the scrub oak, they have 
consumed, in some instances, hundreds of beautiful and very expensive 
homes that are within those areas. This year, it is interesting that, 
of the thousands of acres that were burned, only one home was burned.
  In talking to the firefighters, why were they able to control the 
fires in a better way and why were fewer homes lost, they said very 
clearly, because it was the thinning and the cleaning of the brush and 
undergrowth that was allowed by the categorical exclusions of the 
Healthy Forest Act. In other words, the fuel buildup that naturally 
occurs on public lands, and in this instance in urban watersheds in 
which the Healthy Forest Act is more specific, categorical exclusions 
were granted. In other words, the scoping process of the Forest Service 
to determine the impact that the action of cleaning and thinning would 
have on public lands was determined not to be of major environmental 
consequence, and therefore the Forest Service was allowed to proceed.
  Along comes a judge just this summer and says: no no, you have to do 
an EA, you have to do an EIS, on all, including those provisions the 
Congress spoke specifically to as it related to categorical exclusions. 
In other words, within the category an exclusion is allowed for certain 
actions on forested public lands for the purpose of sustaining the 
quality of the watershed and the health of the forest, and so on and so 
forth.
  What is clearly a loss now is that the Forest Service, in planning 
for next year's actions on the ground--the thinning and the cleaning of 
our forests to ensure forest health, to bring down the overall threat 
of fire--has been dramatically diminished by this judge's action.
  We had hoped in the supplemental to gain the language necessary to 
reinstate the categorical exclusions, as was and as has been clearly 
debated as the intent of Congress. That has been denied. So when 
Congress reconvenes in January and early February, we are going to have 
to work overtime to make sure that we get this law into place.
  What does it mean? It means protecting watersheds. It means 
protecting homes that have been built up against the forested lands, 
doing the right kinds of actions which result in the cleaning up of our 
forests and the ensuring of the vitality of the environment within.
  What the judge's action means in essence is that you have to spend 
tens of millions of dollars perfecting an EA--or in this instance a 
full environmental impact statement--to be able to proceed. We believe 
that under certain circumstances where the health of the forest is 
critical, and in this instance the Los Angeles Basin, where we saw the 
action of being able to control fires because the overall fuel load on 
our public lands was dramatically reduced by the thinning and the 
cleaning in that region of the country--without that we simply will not 
be able to move forward as expeditiously as the Healthy Forest Act 
intended that we move. That is what is at issue here. I had hoped we 
would gain that. We have not gained that in the DOD appropriations and 
supplemental language that was applied.
  Federal lands recovery work that is going on in Mississippi and 
Louisiana and Texas, work that was caused by the hurricanes Katrina and 
Rita, is now included in this problem. So are, overall, 800 planned, 
categorically excluded low-impact projects and hazardous fuel reduction 
projects affecting over 234 communities and 200 currently planned, 
prescribed burning projects that, if delayed, would more than likely 
put them beyond optimum and safe burning conditions, delayed because of 
the action of the judge and therefore pushed off for another year.
  That is the critical nature of this issue and why I have come to the 
Chamber. As one of the chief cosponsors of the 1993 Appeals Reform Act, 
I know we had no expectation or belief that categorical exclusions 
placed in 1993 would be subject to the Appeals Reform Act. It is 
important that we move forward to clarify this language.
  I understand some on this floor today think otherwise.
  Perhaps it would be wise to review the amount of public participation 
involved in the development of the Categorical Exclusions regulations 
that both the Clinton administration and then the Bush administration 
have developed since the Appeals Reform Act was first passed in 1993.
  In the mid-1990s, the Clinton administration proposed significant 
changes to the Categorical Exclusions. They did this through an 
Administrative Procedures Act--APA--rulemaking process which included 
both a proposed and final rulemaking, including extensive review of 
numerous public comments.
  Those categorical exclusions withstood a number of legal challenges 
and remained in place until 2003.
  In 2000, the Bush administration undertook extensive analysis of 
thousands of projects to develop a series of new categorical exclusion 
proposals.
  After review of literally thousands of projects the Bush 
administration proposed a number of changes to the Clinton 
administration's categorical exclusions. They did this through an APA 
rulemaking that again included extensive public comments.
  I think it is important that my fellow Senators understand that the 
original Heartwood II settlement agreement, which attempted to nullify 
categorical exclusions, was rejected by the District Court in which it 
was brought and the case was dismissed.
  Now, the Eastern District Court of California has chosen to resurrect 
that settlement agreement and impose it nationally.
  I know that some people in the Chamber today may still be concerned 
that the land managers may miss something and not realize there could 
be a potential problem.
  Between the scoping that is required, the extraordinary assessment 
that is required, and the public notice requirements that will be 
required if this language is maintained, it is inconceivable to me that 
projects that might be environmentally detrimental could be carried out 
through the categorical exclusion process.
  This body should reject the efforts of the ``gum up the works'' crowd 
who want more process to slow down more projects.
  The current categorical exclusions are based on more data and 
analysis than anytime in history.
  We have more protections to ensure they are not misused than anytime 
in history, and we will have more public notice on categorical 
exclusions than anytime in history if we adopt the language in this 
bill.
  I hope this Congress sees fit to address this situation before it is 
too late. We thought we could. We will have to return early next year 
to get that kind of work done.
  What is at stake now is the health of the forest, the health of the 
watershed, and literally hundreds of thousands of homes spread across 
the landscape that

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are about or near public forest, public lands, that could find 
themselves in a condition that would jeopardize their presence by fire, 
which could ensure where fuel-laden lands exist.
  I thought it was important that I submit that for the Record because 
it is critically important that we move forward on that issue.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Minnesota.

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