[Senate Report 117-197]
[From the U.S. Government Publishing Office]


                                                     Calendar No. 548
117th Congress        }                         {             Report
                                 SENATE
 2d Session           }                         {             117-197

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


 
                ROOT AND STEM PROJECT AUTHORIZATION ACT

                                _______
                                

               November 15, 2022.--Ordered to be printed

                                _______
                                

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

                              R E P O R T

                         [To accompany S. 3046]

    The Committee on Energy and Natural Resources, to which was 
referred the bill (S. 3046), to codify the authority of the 
Secretary of Agriculture and the Secretary of the Interior to 
conduct certain landscape-scale forest restoration projects, 
and for other purposes, having considered the same, reports 
favorably thereon with an amendment in the nature of a 
substitute and recommends that the bill, as amended, do pass.

                               AMENDMENT

    The amendment is as follows:
    Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Root and Stem Project Authorization 
Act of 2022''.

SEC. 2. ROOT AND STEM PROJECTS.

    (a) Definitions.--In this section:
          (1) Collaborative process.--The term ``collaborative 
        process'' means a process that--
                  (A) includes multiple interested persons representing 
                diverse interests; and
                  (B)(i) is transparent and nonexclusive; or
                  (ii) meets the requirements for a resource advisory 
                committee under subsections (c) through (f) of section 
                205 of the Secure Rural Schools and Community Self-
                Determination Act of 2000 (16 U.S.C. 7125).
          (2) Federal land.--The term ``Federal land'' means--
                  (A) land of the National Forest System (as defined in 
                section 11(a) of the Forest and Rangeland Renewable 
                Resources Planning Act of 1974 (16 U.S.C. 1609(a))); 
                and
                  (B) public lands (as defined in section 103 of the 
                Federal Land Policy and Management Act of 1976 (43 
                U.S.C. 1702)).
          (3) Secretary concerned.--The term ``Secretary concerned'' 
        means, as applicable--
                  (A) the Secretary of Agriculture, acting through the 
                Chief of the Forest Service; or
                  (B) the Secretary of the Interior, acting through the 
                Director of the Bureau of Land Management.
    (b) List of Contractors.--The Secretary concerned shall--
          (1) maintain a list of non-Federal, third-party contractors 
        that the Secretary concerned can hire in each State to complete 
        the analysis described in subsection (c)(1); and
          (2) not later than 180 days after the date of enactment of 
        this Act, and every 3 years thereafter, submit to the Committee 
        on Energy and Natural Resources of the Senate and the Committee 
        on Natural Resources of the House of Representatives a copy of 
        the list described in paragraph (1).
    (c) Agreements.--If a person submits to the Secretary concerned a 
proposal for a project on Federal land that was developed through a 
collaborative process and that meets local and rural community needs, 
the Secretary concerned may enter into an agreement with the person, 
under which--
          (1) the person initially provides to the Secretary concerned 
        all, or a portion of, the funding necessary to complete any 
        analysis that the Secretary concerned determines to be 
        necessary under Federal law, including the National 
        Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and 
        the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.), 
        for the consideration of the proposed project;
          (2) the Secretary concerned uses the funding provided under 
        paragraph (1) to pay a contractor included on the list 
        maintained under subsection (b)(1) to conduct the analysis 
        described in paragraph (1);
          (3) on completion of the analysis described in paragraph (1), 
        if the Secretary concerned makes a decision to proceed with the 
        project, the Secretary concerned--
                  (A) solicits bids to carry out the project; and
                  (B) enters into a contract or agreement under section 
                604 of the Healthy Forests Restoration Act of 2003 (16 
                U.S.C. 6591c) to carry out the project; and
          (4) using any receipts described in subsection (d)(1), the 
        Secretary concerned, to the maximum extent practicable, repays 
        to the person the funding initially provided under paragraph 
        (1).
    (d) Additional Related Authorities.--
                  (1) Use of receipts.--Any receipts that are generated 
                by a project described in subsection (c) that are 
                normally deposited in the General Fund of the Treasury 
                shall be available for expenditure by the Secretary 
                concerned, without further appropriation or fiscal year 
                limitation, for the use described in subsection (c)(4).
          (2) Contractors.--The Secretary concerned may 
        noncompetitively hire a contractor included on the list 
        maintained under subsection (b)(1) to conduct the analysis 
        described in subsection (c)(1).
    (e) Savings Clauses.--
          (1) Authority of the secretary concerned.--The Secretary 
        concerned shall--
                  (A) determine the sufficiency of any documents 
                prepared by a contractor under subsection (c)(2); and
                  (B) retain responsibility for any authorizing 
                decision relating to a proposed project described in 
                subsection (c).
          (2) Review and approval of independent third parties.--The 
        Secretary concerned shall verify that there is no conflict of 
        interest between--
                  (A) a person that submits a proposal under subsection 
                (c); and
                  (B) a contractor that the Secretary concerned hires 
                under paragraph (2) of that subsection to carry out an 
                analysis with respect to that proposal.
          (3) Administrative costs.--The Secretary concerned--
                  (A) shall only use the funding provided to the 
                Secretary concerned under subsection (c)(1) to pay a 
                contractor pursuant to subsection (c)(2); and
                  (B) shall not use any portion of the funding provided 
                to the Secretary concerned under subsection (c)(1) to 
                cover any other expense or cost incurred by the 
                Secretary concerned, including administrative costs.
          (4) Limitations on reimbursements.--If insufficient receipts 
        are generated by a project described in subsection (c) to 
        reimburse the person that provided funding under paragraph (1) 
        of that subsection, the Secretary concerned shall not provide 
        additional funding to the person.
    (f) Promotion.--Not later than 60 days after the date of enactment 
of this Act, the Secretary concerned shall provide guidance to each 
local field office of the Secretary concerned for--
          (1) making stakeholders aware of the authority under this 
        Act; and
          (2) encouraging use of that authority to meet land management 
        goals.
    (g) Treatment of Collaborative Members.--For purposes of a civil 
action relating to a project described in subsection (c), any person 
that participated in the collaborative process to develop the proposal 
for the project shall be--
          (1) entitled to intervene, as of right, in any subsequent 
        civil action; and
          (2) considered to be a full participant in any settlement 
        negotiation relating to the project.
    (h) Sunset.--The requirements described in subsection (b) and the 
authority to enter into an agreement under subsection (c) shall expire 
on January 1, 2033.

                                PURPOSE

    The purpose of S. 3046, as ordered reported by the 
Committee, is to codify the authority of the Secretary of 
Agriculture and the Secretary of the Interior to authorize a 
third-party contractor to prepare the environmental analysis 
and documentation necessary under Federal law to conduct 
certain forest restoration projects.

                          BACKGROUND AND NEED

    The National Environmental Policy Act (NEPA) requires all 
Federal agencies to consider the environmental impacts of their 
actions before undertaking those actions. 42 U.S.C. 4332. 
Funding constraints and agency staff shortages can often limit 
the ability of the Forest Service and Bureau of Land Management 
(BLM) to undertake the environmental reviews required by NEPA 
for forest restoration projects, which can delay the completion 
of these important land management projects.
    Regulations implementing NEPA adopted by the Council on 
Environmental Quality have long permitted a contractor retained 
by a Federal agency to prepare the environmental documents so 
long as the contractor has no financial or other interest in 
the outcome of the project and the Federal agency independently 
evaluates the environmental documents prior to their approval 
and takes responsibility for them. 40 C.F.R. 1506.5. Although 
the Forest Service and the BLM currently have the authority to 
contract out the required NEPA work for projects, they seldom 
use this authority for forest restoration projects.
    One notable exception in which the Forest Service did 
contract out its NEPA responsibilities was the North Fork Mill 
Creek A to Z Project in the Colville National Forest in 
northeastern Washington. In that case, the Forest Service 
awarded a contract for a 10-year ecosystem restoration project 
to a lumber company. Under the contract, the lumber company 
selected, hired, and paid a third-party subcontractor to 
prepare the environmental assessment for the project required 
by NEPA. The Forest Service approved the lumber company's 
selection of the subcontractor and reviewed and approved the 
environmental assessment prepared by the subcontractor. The 
arrangement was challenged but ultimately upheld in federal 
district court in 2018. Alliance for the Wild Rockies v. Pena, 
2018 U.S. Dist. LEXIS 170283 (E.D. Wash. 2018).
    S. 3046 makes it clear that the Forest Service and the BLM 
may use this arrangement for stewardship contracts under 
section 604 of the Healthy Forests Restoration Act of 2003 so 
long as there are no conflicts of interest and the agency 
retains responsibility for determining the legal sufficiency of 
the environmental documents.

                          LEGISLATIVE HISTORY

    S. 3046 was introduced in the Senate by Senator Daines and 
Senator Feinstein on October 21, 2021. The Subcommittee on 
Public Lands, Forests, and Mining held a hearing on S. 3046 on 
June 7, 2022.

                        COMMITTEE RECOMMENDATION

    The Senate Committee on Energy and Natural Resources, in an 
open business session on July 21, 2022, by a voice vote of a 
quorum present, recommends that the Senate pass S. 3046, if 
amended as described herein.

                          COMMITTEE AMENDMENT

    During its consideration of S. 3046, the committee adopted 
an amendment in the nature of a substitute. The amendment 
requires the Secretary of Agriculture and the Secretary of the 
Interior to maintain lists of non-Federal, third-party 
contractors qualified to conduct environmental analysis of 
forest restoration projects under the Act. It also clarifies 
how the person proposing the project who provides the upfront 
funding for the third-party contractor's environmental analysis 
would be reimbursed. Further, it removed the provisions in the 
introduced bill pertaining to injunctions and the establishment 
of a statute of limitations for these projects. Also, the 
amendment includes a new provision that grants certain persons 
the right to intervene in civil actions brought against a 
project that is undertaken pursuant to this Act.
    The amendment is further explained in the section-by-
section analysis below.

                      SECTION-BY-SECTION ANALYSIS

Section 1. Short title

    This section provides the short title of the bill as ``Root 
and Stem Project Authorization Act of 2022''.

Sec. 2. Root and stem projects

    Subsection (a) provides key definitions for the bill. 
Although the committee amendment retains the term ``root and 
stem'' in the short title and section heading, it eliminates 
the definition found in the bill as introduced and does not 
otherwise use the term in the text. The bill as introduced 
defined a ``root and stem project'' to mean a stewardship 
contract project under section 604 of the Healthy Forests 
Restoration Act of 2003.
    Subsection (b) requires the Secretaries to maintain a list 
of non-Federal third-party contractors that can be hired in 
each State to complete the NEPA reviews and directs the 
Secretaries to send this list to Congress within 6 months of 
enactment and every three years thereafter.
    Subsection (c) states that if a person proposes a 
stewardship contract project on Federal land, and that project 
is developed through a collaborative process, a Secretary may 
enter into an agreement under which the person provides upfront 
funding for a third-party contractor to carry out the 
environmental review for the project. If the Secretary decides 
ultimately to proceed with the project, the Secretaries must 
solicit bids to carry out the project and use any available 
receipts generated by the project to repay the person who 
provided the upfront funding for the environmental analysis 
performed by the third-party contractor.
    Subsection (d) states that any receipts generated by the 
project that are typically deposited into the Treasury will be 
available, without further appropriation or fiscal year 
limitation, to reimburse the person who provides upfront 
funding for the project. This section also states that the 
Secretaries may noncompetitively hire third-party contractors 
included on the list required by subsection (b) to conduct the 
necessary environmental reviews for the project.
    Subsection (e) clarifies that the Secretaries must still 
determine the sufficiency of any NEPA documents prepared by the 
third-party contractor and must still authorize a project to 
proceed. Subsection (e) requires the Secretaries to verify that 
there are no conflicts of interest between the person that 
submits the project proposal and the third-party contractor 
that is hired to prepare the NEPA documents. The Secretaries 
are prohibited from using any of the funding provided by the 
person for administrative costs. Lastly, this subsection 
clarifies that the Secretaries can only provide reimbursement 
to the person to the extent sufficient receipts are available 
from the project.
    Subsection (f) requires the Secretaries within 60 days of 
enactment to provide guidance on the use of this authority to 
local field offices.
    Subsection (g) states that if there is civil action 
associated with a project, any person that participated in the 
collaborative process to develop the project may intervene in 
any subsequent civil action and may participate fully in any 
settlement negotiation.
    Subsection (h) provides that the requirements and authority 
to enter into agreements expires on January 1, 2033.

                    COST AND BUGETARY CONSIDERATIONS

    The Committee has requested, but has not yet received, the 
Congressional Budget Office's estimate of the cost of S. 3046 
as ordered reported. When the Congressional Budget Office 
completes its cost estimate, it will be posted on the Internet 
at www.cbo.gov.

                      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. 3046. 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. 3046, as ordered reported.

                   CONGRESSIONALLY DIRECTED SPENDING

    S. 3046, as ordered 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 testimony provided by the Department of the Interior 
and the Forest Service at the June 7, 2022, hearing on S. 3046 
follows:

  Testimony of Nada Wolff Culver, Deputy Director, Policy & Programs, 
Bureau of Land Management, U.S. Department of the Interior

           *       *       *       *       *       *       *


    Thank you for the opportunity to provide testimony on the 
following bills related to Bureau of Land Management (BLM).

           *       *       *       *       *       *       *

S. 3046, Root & Stem Project Authorization
    S. 3046 authorizes the BLM and USFS to enter into contracts 
and agreements to conduct ``Root and Stem'' projects, which 
involve stewardship contracts to improve, maintain, or restore 
forest or rangeland health; restore or maintain water quality; 
improve fish and wildlife habitat; and reduce danger from 
wildfires, as outlined in section 604 of the Healthy Forests 
Restoration Act of 2003. Under the bill, Root and Stem projects 
must be designed and implemented through a collaborative 
process, be proposed prior to completing the environmental 
review process under NEPA, and may not exceed a period of ten 
years. S. 3046 establishes a statute of limitations of 120 days 
for legal action challenging a Root and Stem project or any 
activity under a Root and Stem project. Finally, the bill 
prohibits courts from enjoining Root and Stem projects if the 
court determines that the plaintiff is unable to demonstrate 
that their claim is likely to succeed on the merits.
Analysis
    In the context of the BLM forestry program, ``Stewardship'' 
refers to the ability to trade forest products for land 
management services. Stewardship contracting authority includes 
agreements with nonprofits, best-value contracts, and a goods 
for services arrangement. Congress permanently authorized 
stewardship contracting through the 2014 Farm Bill, ensuring 
that the BLM will always have available this valuable tool. The 
BLM supports the goals of S. 3046 to facilitate efficient 
forest management and collaborative partnerships, and would 
like to work with the Sponsor to provide greater opportunities 
for judicial review.
    S. 3046 requires environmental review for Root and Stem 
projects under NEPA to be conducted by an independent third 
party, selected by the entity carrying out a Root and Stem 
project and approved by the Secretary. Further, the NEPA work 
must occur after the parties enter into the contract or 
agreement. The Secretary is directed to review the independent 
third party for conflicts of interest, including any conflicts 
between the independent third party and the entity carrying out 
the Root and Stem project. The BLM interprets this provision as 
allowing Root and Stem contracts to include both NEPA review 
and the service work performed to achieve land management 
objectives. The BLM notes that new information gained during 
the NEPA process may have an impact on the scope of the service 
work necessary to achieve land management goals. While 
including NEPA review and service work in a single contract may 
improve efficiency, new information could necessitate contract 
modifications and detract from any efficiency achieved.
    S. 3046 limits judicial review to 120 days from the date on 
which the Secretary concerned provides public notice of the 
award of a contract or agreement, and the date the Secretary 
issues a decision approving the Root and Stem project. The BLM 
recommends allowing concerned parties more than 120 days to 
bring action. Finally, the BLM recommends modifications to the 
bill allowing courts to issue injunctions when necessary to 
prevent irreparable harm.

           *       *       *       *       *       *       *


Testimony of Christopher French, Deputy Chief, National Forest System, 
United States Department of Agriculture Forest Service

           *       *       *       *       *       *       *


    Chair Cortez Masto, Ranking Member Lee, and Members of the 
Subcommittee, thank you for the opportunity to appear before 
you today to discuss the views of the U.S. Department of 
Agriculture on several bills that includes provisions related 
to the USDA Forest Service.

           *       *       *       *       *       *       *

S. 3046, Root and Stem Project Authorization Act of 2021
    S. 3046 amends the Healthy Forests Restoration Act of 2003 
(HFRA) (16 U.S.C. 6591c) to allow the Secretaries of 
Agriculture and Interior to enter into 10-year contracts or 
agreements with eligible entities to design, analyze, and 
implement ``Root and Stem projects'' through a collaborative 
process on Federal lands. S. 3046 directs Root and Stem 
projects shall be subject to judicial review in the same manner 
as HFRA authorized hazardous fuel reduction projects, except 
that it provides for a 120-day statute of limitations and 
special instructions concerning injunctive relief. USDA is 
generally supportive of increasing capacity to accomplish our 
work and would like to work with the Subcommittee and bill 
sponsors to address technical concerns related to timing and 
intersection with existing laws.

           *       *       *       *       *       *       *


                        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 as ordered 
reported.

                                  
                                  
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