[Senate Report 112-126]
[From the U.S. Government Publishing Office]


                                                       Calendar No. 287
112th Congress                                                   Report
                                 SENATE
 2d Session                                                     112-126

======================================================================



 
                   ARIZONA WALLOW FIRE RECOVERY AND 
                             MONITORING ACT

                                _______
                                

                January 13, 2012.--Ordered to be printed

 Filed, under authority of the order of the Senate of December 17, 2011

                                _______
                                

   Mr. Bingaman, from the Committee on Energy and Natural Resources, 
                        submitted the following

                              R E P O R T

                         [To accompany S. 1344]

    The Committee on Energy and Natural Resources, to which was 
referred the bill (S. 1344) to direct the Secretary of 
Agriculture to take immediate action to recover ecologically 
and economically from a catastrophic wildfire in the State of 
Arizona, and for other purposes, having considered the same, 
reports favorably thereon with an amendment and recommends that 
the bill, as amended, do pass.
    The amendment is as follows:
    Strike out all after the enacting clause and insert in lieu 
thereof the following:

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Arizona Wallow Fire Recovery and 
Monitoring Act''.

SEC. 2. DEFINITIONS.

    In this Act:
          (1) Community protection management area.--The term 
        ``community protection management area'' means--
                  (A) the wildland-urban interface in a community 
                wildfire protection plan; and
                  (B) human development areas having special 
                significance, including critical communication sites, 
                high voltage transmission lines, developed recreation 
                sites, and other structures that, if destroyed by fire, 
                would result in hardship to communities.
          (2) Community wildfire protection plan.--The term ``community 
        wildfire protection plan'' has the meaning given the term in 
        section 101 of the Healthy Forest Restoration Act of 2003 (16 
        U.S.C. 6511).
          (3) Evaluation.--The term ``evaluation'' means the evaluation 
        required by section 3(a).
          (4) Secretary.--The term ``Secretary'' means the Secretary of 
        Agriculture.
          (5) Wallow fire area.--The term ``Wallow Fire Area'' means 
        the land within the perimeter of the Wallow Fire, as depicted 
        on the map entitled ``Wallow Fire AZ-ASF-110152 Progression 
        Map'' and dated June 28, 2011.

SEC. 3. HAZARD TREE AND COMMERCIAL TIMBER EVALUATION.

    (a) In General.--The Secretary shall conduct an evaluation of the 
Wallow Fire Area in accordance with this section.
    (b) Timeline.--To ensure the timely completion of the evaluation, 
the Secretary shall--
          (1) not later than 30 days after the date of enactment of 
        this Act, commence the evaluation; and
          (2) not later than 75 days after the date of enactment of 
        this Act, complete the evaluation.
    (c) Contents.--The evaluation shall include--
          (1) a map of the burn intensity within the Wallow Fire Area;
          (2) a description of--
                  (A) the forest conditions in the burned areas of the 
                Wallow Fire Area;
                  (B) the short- and long-term risks that the 
                conditions in the Wallow Fire Area may pose to forest 
                users, communities, private property, and natural 
                resources; and
                  (C) the actions undertaken by the Forest Service to 
                reduce the risks described in subparagraph (B);
          (3) a map and description of areas for potential hazard tree 
        removal and areas for potential fire-damaged commercial tree 
        removal in the Wallow Fire Area, including a delineation of the 
        community protection management area within the Wallow Fire 
        Area;
          (4) a preliminary estimate of--
                  (A) the costs and receipts to be derived from the 
                hazard tree and fire-damaged commercial timber 
                identified for potential removal in the Wallow Fire 
                Area; and
                  (B) to the maximum extent practicable, the receipts 
                likely to be lost if action is not taken in a timely 
                manner; and
          (5) a description of the desired outcomes of rehabilitation 
        and tree removal in burned portions of the Wallow Fire Area.
    (d) Excluded Areas.--In identifying areas for potential tree 
removal under subsection (c)(3), the Secretary shall exclude high fire-
severity burned areas on steep slopes, slopes with an incline greater 
than 40 percent, riparian areas, and fragile erosive sites, unless tree 
removal in those areas is necessary to address concerns relating to 
public health or safety.

SEC. 4. TIMBER REMOVAL PROJECTS.

    (a) Identification.--Not later than 90 days after the date of 
enactment of this Act, the Secretary shall identify 1 or more projects 
to reduce the risks described in section 3(c)(2)(B) by removing hazard 
trees and fire-damaged, dead, and dying timber resources in the Wallow 
Fire Area.
    (b) Congressional Intent.--It is the intent of Congress that all 
projects identified under subsection (a) be completed by September 30, 
2013.
    (c) Considerations.--
          (1) Evaluation.--In identifying projects under subsection 
        (a), the Secretary shall consider the results of the 
        evaluation.
          (2) Tree removal techniques.--In selecting tree removal 
        techniques for a project identified under subsection (a), the 
        Secretary shall take into account the degree of ground 
        disturbances, soil types, soil saturation, worker safety, 
        threatened or endangered species, aquatic systems, and other 
        ecological values associated with the site of the project.
    (d) Monitoring.--The Secretary shall use an effectiveness 
monitoring framework to assess the ecological and economic effects of 
each project that is identified and carried out under this section with 
respect to accomplishing the desired outcomes identified in the 
evaluation.
    (e) Limitations.--In carrying out a project identified under 
subsection (a), the Secretary--
          (1) shall focus the removal of trees under the project to 
        hazard trees and trees that are already down, dead, or so 
        severely root-sprung that mortality is highly probable; and
          (2) shall not construct any permanent road.
    (f) Administrative Review.--
          (1) In general.--In lieu of an administrative appeal under 
        section 322 of the Department of the Interior and Related 
        Agencies Appropriations Act, 1993 (16 U.S.C. 1612 note; Public 
        Law 102-381), the Secretary may subject to administrative 
        review under part 218 of title 36, Code of Federal Regulations 
        (or successor regulations), any collaboratively-developed 
        project to remove hazard trees and fire-damaged, dead, and 
        dying timber resources in the Wallow Fire Area--
                  (A) that is identified under subsection (a); and
                  (B) for which a decision notice or record of decision 
                has been issued by September 30, 2012.
          (2) Authorized projects.--A project identified under 
        subsection (a) shall be considered an authorized hazardous fuel 
        reduction project for purposes of part 218 of title 36, Code of 
        Federal Regulations (or successor regulations).

                                PURPOSE

    The purpose of S. 1344 is to direct the Secretary of 
Agriculture to evaluate the area that was burned by the Wallow 
Fire and to identify certain tree removal projects in that 
area.

                          BACKGROUND AND NEED

    The 2011 wildfire season in the southwest was one of the 
most active on record. Extreme drought led to large and severe 
wildfires in Arizona, New Mexico, and Texas. The Wallow Fire 
started on May 29, 2011, in southeastern Arizona on the Apache-
Sitgreaves National Forest. In the subsequent weeks, it burned 
a total of 534,639 acres, including 12,972 acres of the Fort 
Apache Indian Reservation, 9,200 acres of the San Carlos Indian 
Reservation, 15,407 acres in New Mexico, and 10,815 of State 
and private land, making it the largest fire in Arizona 
history. It burned 32 residences and cost about $95 million to 
suppress.
    While the majority of fire was not severe, about 16% 
(86,115 acres) of the fire burned at high intensity and about 
13.7% (73,634 acres) at moderate intensity, resulting in large 
areas in need of restoration. The fire burned so intensely in 
some areas, that it left water-repellent soil on an estimated 
32,000 acres. There are an estimated 1,924 miles of perennial 
and intermittent streams that are now at risk of post-fire 
flooding, and it left burned trees along an estimated 304 miles 
of trails and 2,120 miles of roads.
    S. 1344 would require the Secretary to conduct an 
evaluation of the burned area and the continuing risks it poses 
to people, property, and natural resources. It also would 
encourage the Secretary to promptly mitigate those risks.

                          LEGISLATIVE HISTORY

    S. 1344 was introduced by Senators Kyl and McCain on July 
15, 2011. The Subcommittee on Public Lands and Forests held a 
hearing on the bill on October 3, 2011. At its business meeting 
on November 10, 2011, the Committee on Energy and Natural 
Resources ordered S. 1344 favorably reported with an amendment 
in the nature of a substitute.

                        COMMITTEE RECOMMENDATION

    The Committee on Energy and Natural Resources, in open 
business session on November 10, 2011, by a voice vote of a 
quorum present, recommends that the Senate pass S. 1344, if 
amended as described herein.

                          COMMITTEE AMENDMENT

    During its consideration of S. 1344, the Committee adopted 
an amendment in the nature of a substitute. A number of the 
provisions in the bill required the Secretary to act within 
timeframes that already had expired, so the amendment adjusts 
the focus and timeframes of the bill from emergency to near-
term response. The amendment also eliminates a number of 
provisions regarding environmental compliance, including 
provisions that the Forest Service testified would have 
hindered its flexibility in carrying out projects. The 
Committee amendment is explained in detail in the section-by-
section analysis below.

                      SECTION-BY-SECTION ANALYSIS

    Section 1 provides the short title for the bill.
    Section 2 defines certain terms used in the bill.
    Section 3 requires the Secretary of Agriculture to conduct 
a rapid evaluation of the area burned by the Wallow Fire. The 
evaluation would include a map of the burn intensity in the 
area, and a description of the forest conditions, the short- 
and long-term risks they pose to people, property, and natural 
resources, and the actions taken by the Forest Service to 
address those risks. It also would include a description of 
where it would be appropriate to remove hazard and burned 
trees, and a preliminary estimate of the costs and receipts 
associated with such removal operations. Finally, it would 
include a description of the desired outcomes associated with 
potential rehabilitation and tree removal operations in the 
burned area.
    Section 4(a) requires the Secretary to identify at least 
one project that could reduce the short- or long-term risks 
identified in the evaluation through tree removal operations.
    Subsection (b) establishes congressional intent that any 
project that is identified under subsection (a) and carried out 
by the Forest Service be completed by the end of fiscal year 
2013 in order to protect public safety and capture the economic 
value of any burned timber that is removed through the project.
    Subsections (c), (d), and (e) describe certain 
considerations, monitoring requirements, and limitations that 
would apply to any project identified under subsection (a) that 
is carried out by the Forest Service.
    Subsection (f) authorizes the Secretary to use the 
predecisional administrative review process established in 36 
C.F.R. pt. 218 in lieu of a traditional administrative appeal 
if the project is collaboratively developed, the purpose of the 
project is to remove hazard and burned trees, the project is 
carried out in accordance with section 4, and the project 
planning is initiated soon enough that a decision notice or 
record of decision is issued by the end of fiscal year 2012 
(thereby providing a reasonable opportunity for the project to 
be completed by the end of fiscal year 2013). Paragraph (2) 
simply clarifies that such a project would be eligible for the 
predecisional review process in accordance with section 4 even 
if it would not otherwise meet the definition of ``authorized 
hazardous fuel reduction project'' found in 36 C.F.R. 218.2 
(2010).

                   COST AND BUDGETARY CONSIDERATIONS

    The following estimate of costs of this measure has been 
provided by the Congressional Budget Office:

S. 1344--Arizona Wallow Fire Recovery and Monitoring Act

    S. 1344 would require the Forest Service to evaluate 
portions of the National Forest System affected by the Wallow 
fire in eastern Arizona. The bill also would authorize the 
agency to solicit public objections to proposed timber removal 
projects before the agency decides whether to conduct such 
projects in areas affected by the fire. Based on information 
provided by the Forest Service, CBO estimates that implementing 
S. 1344 would have no significant impact on the federal budget. 
Enacting the legislation would not affect direct spending or 
revenues; therefore, pay-as-you-go procedures do not apply.
    Many activities that would be completed as part of the 
evaluation required under the bill are similar to activities 
performed by the Forest Service under current law. In addition, 
because the agency is using existing authorities to 
expeditiously restore forest lands affected by the fire, CBO 
does not expect that the new authorities provided by S. 1344 
would significantly affect the timing of such work. Therefore, 
we estimate that implementing the bill would have no 
significant impact on the federal budget.
    S. 1344 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would impose no costs on state, local, or tribal governments.
    The CBO staff contact for this estimate is Jeff LaFave. The 
estimate was approved by Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.

                      REGULATORY IMPACT EVALUATION

    In compliance with paragraph 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee makes the following 
evaluation of the regulatory impact which would be incurred in 
carrying out S. 1344.
    The bill is not a regulatory measure in the sense of 
imposing Government-established standards or significant 
economic responsibilities on private individuals and 
businesses.
    No personal information would be collected in administering 
the program. Therefore, there would be no impact on personal 
privacy.
    Little, if any, additional paperwork would result from the 
enactment of S. 1344, as ordered reported.

                   CONGRESSIONALLY DIRECTED SPENDING

    S. 1344, as reported, does not contain any congressionally 
directed spending items, limited tax benefits, or limited 
tariff benefits as defined in rule XLIV of the Standing Rules 
of the Senate.

                        EXECUTIVE COMMUNICATIONS

    The views of the Administration were included in testimony 
received by the Committee at the October 3, 2011, hearing, 
which is provided below.

    Statement Thomas Tidwell, Chief, Forest Service, Department of 
                              Agriculture

    Chairman Wyden, Ranking Member Barrasso, and members of the 
Subcommittee, thank you for the opportunity to appear before 
you today to provide the Department of Agriculture's views on 
S. 1344, the ``Arizona Wallow Fire Recovery and Monitoring 
Act'' and S. 1090, the ``Tennessee Wilderness Act of 2011.''


      s. 1344, the arizona wallow fire recovery and monitoring act


    The Department supports the objectives and comprehensive 
response that underlie the legislation and agrees that the 
response to this fire should be addressed with a sense of 
urgency. With or without this legislation, the U.S Forest 
Service is committed to accomplish the restoration objectives 
in a timely manner. The Wallow Fire burned over a half million 
acres of National Forest System land, as well as tribal, state 
and private lands (including lands in New Mexico). In terms of 
acres of forest burned, the Wallow Fire was the largest fire in 
Arizona's history. The effects of this wildfire are significant 
for the communities of eastern Arizona. I want to assure you 
that the U.S. Forest Service understands and appreciates the 
magnitude and scope of the task ahead to restore the landscapes 
damaged by this fire and we have already started this work.
Background
    Igniting on May 29, 2011 in the Apache-Sitgreaves National 
Forest southwest of Alpine, Arizona, the Wallow Fire was 
contained on July 8th. Its cause is under investigation. The 
fire's burned area includes 840 square miles (535,000 acres) 
and includes 24 square miles (15,000 acres) of western New 
Mexico. Nearly half of the Wallow Fire's burned area (48%) is 
classified as low burn severity, 14% moderate severity and 16% 
high severity. Burned Area Emergency Response (BAER) 
assessments have been completed with approved funding and 
prescriptions being implemented. USDA agencies and Arizona 
State agencies are assisting the Forest Service at public 
workshops to provided information on programs and assistance to 
home owners and small businesses affected by fires and/or 
floods. At the zenith of the Wallow Fire's run more than 4,700 
firefighters from the Forest Service and cooperating agencies 
responded. Moreover, fuels treatments developed with private 
citizens and state and local governments as part of the White 
Mountain Stewardship Project and implemented between 2004 and 
2011 successfully reduced fire behavior near the Arizona 
communities of Greer, Eagar, Nutrioso, and Alpine.
Current planning
    The Forest Service is in the process of conducting an 
evaluation which includes an assessment of restoration needs 
and salvage as required by the bill. In order to assess the 
magnitude of the restoration needs resulting from the Wallow 
Fire, a Rapid Assessment Team was assembled. The Team is 
currently developing a comprehensive restoration plan for the 
Wallow Fire area. The plan will identify and organize all 
restoration needs for the Wallow Fire area, including ongoing 
Burned Area Emergency Response (BAER) projects, and projects to 
reduce risks to health and safety in the short term and restore 
the area over the longer term. The Forest Service will adjust 
work priorities in order to focus the resources necessary to 
ensure the recovery of the Wallow Fire area.
Ongoing and proposed work
    The Forest Service's BAER work is ongoing. We have just 
completed seeding some 36,000 acres of 80,000 acres projected 
for seeding, spreading straw on 18,000 acres of 25,000 
projected, and are currently removing hazard trees along 245 
miles of road from a projected 300 miles of road needing 
treatment. The roadside hazard tree removal could result in 
approximately 162,000 tons of material. Approximately 39 miles 
of power line corridors have been identified for emergency 
hazard tree removal (BAER work) in conjunction with various 
power companies. In addition, our post-emergency assessment 
shows that there is a substantial risk of falling hazard trees 
along an additional 350 miles of roads and power line 
corridors. These roads and power line corridors are critically 
important to the communities of Greer, Alpine, Nutrioso, and 
Eagar, among others. We estimate that treatments within these 
corridors could result in the removal of approximately 150,000 
tons of material on approximately 10,400 acres. In order to 
minimize the safety risk and provide employment opportunities, 
we plan to proceed expeditiously so that some of the wood can 
be used for higher valued products.
Collaborative efforts
    The White Mountain Stewardship collaborative, a diverse 
group of local, state, tribal, environmental and other 
partners, is assisting us in developing our rehabilitation 
plans. Our plan is to complete the environmental analyses and 
administrative review for the projects to carry out the plan, 
and prepare the contracts over the next several months. 
Roadside corridor work would conclude by the end of 2012. Other 
projects would conclude as expeditiously as possible. Our plan 
is to use our current authorities to utilize receipts for 
future salvage sales that carry out post-fire rehabilitation. 
We are planning to work with many of the same individuals and 
groups in monitoring our rehabilitation work.
Provisions of the bill
    Section 4 of S. 1344 would direct the Secretary to prepare 
a hazard tree and commercial timber evaluation. The evaluation 
would describe the forest conditions in the Wallow Fire Area 
and the short- and long-term risks posed by the conditions. The 
evaluation also would include a map of the areas for potential 
hazard tree removal, a map of areas for potential fire-damaged 
commercial tree removal, and a map of areas where harvest 
should not be considered. In the evaluation, the Secretary 
would be required to describe one or more proposals for timber 
removal projects and a description of the desired outcomes of 
rehabilitation and tree removal. The Secretary would involve 
the public in preparing the evaluation and would be required to 
complete the evaluation within 45 days after initiating it.
    Section 5 of S. 1344 also would provide that a timber 
removal project carried out under the bill would limited to the 
removal of hazard trees and the removal of trees that are 
already down, dead, or severely root-sprung such that there is 
a high probability of mortality. The bill would require the 
Secretary to prepare an environmental assessment for a timber 
removal project carried out under the bill for portions of the 
Wallow Fire Area that are in a Community Protection Management 
Area. The Secretary would not be required to consider any 
alternative to the proposed agency action in the environmental 
assessment. Any timber removal project carried out in the 
Wallow Fire Area would be subject to the pre-decisional 
objection process under section 105 of the Healthy Forests 
Restoration Act (HFRA). S. 1344 also specifies that receipts 
from timber removal projects be available, without further 
appropriation for restoration purposes on the Apache-Sitgreaves 
National Forest in the State of Arizona.
Departmental perspective on specific bill provisions
    While we support the objectives of S. 1344, we note that 
the Forest Service already has appropriated funds, stewardship 
contracting authority, and the salvage sale fund to address 
various forest management scenarios proposed in the bill. In 
complying with NEPA under current authorities, the Forest 
Service is utilizing categorical exclusions for tree removal 
projects in certain high risk areas. We would prefer that any 
legislation maintain this flexibility. Under current 
authorities, the Forest Service is required to use a post-
decisional appeals process and does not have the option of 
using the pre-decisional objection process in HFRA except for 
hazardous fuel reduction projects covered by HFRA. The HFRA 
pre-decisional review procedures provide the public with an 
opportunity to raise concerns before a final decision is 
issued, making the process more collaborative and helpful.
Demonstrated benefits of White Mountain Stewardship and anticipated 
        benefits from the Four Forests Restoration Initiative
    As devastating as the Wallow fire was, it could have been 
significantly worse if it had not been for the thousands of 
acres that had been treated as part of the White Mountain 
Stewardship project. The accomplishments of the White Mountain 
Stewardship project have been significant--50,851 acres treated 
as of July 23, 2011. The Community Wildfire Protection Plans 
for the communities of Nutrioso, Eagar, Alpine and Greer 
provided much of the guidance for the accomplishment of that 
work. There is no doubt that a significant number of 
neighborhoods and portions of the forest were spared thanks to 
this work. The forest fuels thinning and removals in the path 
of this fire clearly demonstrate what can be accomplished 
through collaboration and stewardship contracting at the 
landscape scale. Fire behavior can be modified, communities can 
be protected, local jobs can be created, and relationships 
between organizations and individuals can be built. The Four 
Forests Restoration Project (4FRI) is the next step in 
expanding this collaborative model. Through the 4FRI is a 
Collaborative Forest Landscape Restoration (CFLRP) project, the 
Forest Service aspires to restore approximately 2.4 million 
acres of ponderosa pine forests on portions of the Apache-
Sitgreaves, Coconino, Kaibab, and Tonto National Forests in 
Northern Arizona over the next 20 years. In the past two years, 
more than eleven million dollars has been committed to this 
initiative.
    In summary, the Department supports the objectives of this 
legislation. However, we are already engaged in focusing our 
workforce and resources to accomplish these objectives in an 
expeditious manner and we have the appropriate authorities to 
meet the intent of this legislation.

                        CHANGES IN EXISTING LAW

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, the Committee notes that no 
changes in existing law are made by the bill S. 1344 as ordered 
reported.

                                  
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