[Senate Report 118-50]
[From the U.S. Government Publishing Office]


                                                  Calendar No. 122

118th Congress}                                           { Report
                                 SENATE
 1st Session  }                                           { 118-50

======================================================================
 
                ROOT AND STEM PROJECT AUTHORIZATION ACT

                                _______
                                

                 July 11, 2023.--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. 199]

    The Committee on Energy and Natural Resources, to which was 
referred the bill (S. 199), 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 without amendment and recommends that the 
bill do pass.

                                PURPOSE

    The purpose of S. 199, 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, as 
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 
hire contractors to do 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 that was 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. 199 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 as 
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. 199 was introduced by Senators Daines and Feinstein on 
February 1, 2023. Similar legislation, S. 3046, was introduced 
in the 117th Congress by Senators Daines and Feinstein on 
October 21, 2021. The Subcommittee on Public Lands, Forests, 
and Mining held a hearing on S. 3046 on June 7, 2022. The 
committee held an open business session on July 21, 2022 and by 
a voice vote of a quorum present, recommended that the Senate 
pass S. 3046, as amended.

                        COMMITTEE RECOMMENDATION

    The Senate Committee on Energy and Natural Resources, in 
open business session on May 17, 2023, by a voice vote of a 
quorum present, recommends that the Senate pass S. 199.

                      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 2023''.

Sec. 2. Root and Stem projects

    Subsection (a) provides key definitions for the bill.
    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 would normally be deposited into the Treasury will 
be available, without further appropriation or fiscal year 
limitation, to repay the person who provides initial 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 who 
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 who 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. 199 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. 199. 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. 199, as ordered reported.

                   CONGRESSIONALLY DIRECTED SPENDING

    S. 199, 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, 
similar legislation that was filed during the 117th Congress, 
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 S. 199 as ordered reported.

                                  [all]