Wildfire Protection in the 108th Congress

Wildfire Protection in the 108th Congress

Order Code IB10124
CRS Issue Brief for Congress
Received through the CRS Web
Wildfire Protection in the 108th Congress
Updated November 19, 2004
Ross W. Gorte
Resources, Science, and Industry Division
Congressional Research Service ˜ The Library of Congress

CONTENTS
SUMMARY
MOST RECENT DEVELOPMENTS
BACKGROUND AND ANALYSIS
Wildfire Funding
Fuel Reduction
Administrative Action
Legislative Activity in the 108th Congress
LEGISLATION
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Wildfire Protection in the 108th Congress
SUMMARY
Many argue that the threat of severe
under the National Environmental Policy Act
wildfires has grown in recent years because of
[NEPA]) and from administrative appeals and
unnaturally high fuel loads (e.g., dense under-
judicial reviews of decisions. Critics dispute
growth and dead trees), raising concerns about
these assertions and are concerned that speed-
damage to property and homes in the
ier action could allow environmentally damag-
wildland-urban interface (WUI) — forests
ing timber harvesting, without adequate envi-
near or surrounding homes. Debates about
ronmental review and public oversight.
fire control and protection, including funding
and fuel treatments (e.g., thinning and pre-
Wildfire protection bills were introduced
scribed burning), have focused on national
in the 107th Congress, but none was enacted.
forests and other federal lands, but nonfederal
Issues addressed in various proposals included
lands are also at risk.
priorities for action (typically emphasizing the
WUI, municipal watersheds, and areas with
Federal wildfire management funding
insect and disease problems and blown-down
rose dramatically after the severe 2000 fire
trees); the necessity of NEPA environmental
season. In September 2000, President Clinton
analysis and other environmental protection;
proposed a new National Fire Plan, requesting
public involvement and collaboration in, and
$1.8 billion to supplement the $1.1 billion
administrative and judicial review of, fuel
originally requested for FY2001. Congress
reduction projects; and the magnitude and
enacted most of this proposal and funding
duration of the program.
request, and support for expanded wildfire
programs (excluding supplemental firefighting
Much of the attention in the 108th Con-
money) generally has continued.
gress was on the Healthy Forests Restoration
Act of 2003, H.R. 1904. This bill addressed
On August 22, 2002, President Bush
many issues treated in the President’s Initia-
proposed the Healthy Forests Initiative. The
tive — priorities, NEPA analysis, and public
initiative proposed changes to forest manage-
involvement and review — but also included
ment laws, in part, to improve fire protection
titles allowing grants to use biomass, provid-
through fuel reduction. Several tools can
ing watershed forestry assistance, addressing
reduce fuel loads — prescribed burning,
insect infestations, and establishing private
thinning, and salvage and other timber cutting.
forest reserves. The bill passed the House on
Proponents of fuel reduction have expressed
May 20, 2003, the Senate on October 30, and
frustration with alleged project delays from
was signed into law (P.L. 108-148) on Decem-
environmental analyses of, and public partici-
ber 3, 2003.
pation in, federal agency decisions (primarily
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MOST RECENT DEVELOPMENTS
On December 3, 2003, the President signed the Healthy Forests Restoration Act of
2003, P.L. 108-148. This act contains provisions to expedite authorized fuel reduction
projects on FS and BLM lands, as well as several other titles for related programs.
A bill (H.R. 2696) to establish research institutes in the Southwest, to demonstrate
adaptive management for western fire-adapted ecosystems, passed the House on February
24, 2004, and was reported by the Senate Committee on Energy and Natural Resources on
March 29, 2004.
On September 14, 2004, the Senate Appropriations Committee recommended $2.98
billion for the National Fire Plan for FY2005, including emergency funds of $100 million
for the BLM and $400 million for the FS, if needed (S. 2804, S.Rept. 108-341). This is
$36.8 million (1%) less than the House provided in H.R. 4568 ($3.02 billion, including
emergency funds of $100 million for the BLM and $400 million for the FS, if needed). The
Senate’s recommended level is $514.7 million (21%) above the budget request, and $310.9
million (9%) less than FY2004 appropriations ($3.29 billion), including emergency funding
of $947.3 million enacted in three separate laws.
BACKGROUND AND ANALYSIS
Wildfires and efforts to halt the damage they cause have been the center of increased
attention in recent years. The 2000 and 2002 fire seasons were, by most standards, among
the worst in the past 50 years, and many argue that the threat of severe wildfires has grown
in recent years, because many forests have unnaturally high fuel loads (e.g., dead trees and
dense undergrowth) and a historically unnatural mix of plant species (e.g., exotic invaders
or an understory of trees differing from the overstory). (For more information on these forest
health problems, see CRS Report RS20822, Forest Ecosystem Health: An Overview, by Ross
W. Gorte.) These higher threats have raised concerns about potential damage to homes that
increasingly abut or are surrounded by forests — the wildland-urban interface, or WUI. (See
CRS Report RS21880, Wildfire Protection in the Wildland-Urban Interface, by Ross W.
Gorte.) The threats have led to debates over fire control and fire protection efforts, including
questions about funding levels and fire protection treatments (e.g., thinning and prescribed
burning).
Debates about wildfire protection have focused on federal lands — especially the
national forests administered by the USDA Forest Service (FS) and the lands administered
by the Bureau of Land Management (BLM) and other Department of the Interior (DOI)
agencies — since federal lands are subject to congressional authority. However, the threats
are not limited to federal lands, and many lands in the WUI are privately owned.
Wildfire Funding. The severe 2000 fire season led President Clinton to propose, in
September 2000, a new program of fire control, protection, and funding — the National Fire
Plan. He requested an additional $1.8 billion to supplement the $1.1 billion for FY2001
wildfire management requested before the fire season began. Much of the funding was to
pay for FY2000 firefighting, but money also was increased for fuel treatment, burned area
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restoration, assistance to affected communities, and preparation for future fire seasons.
Congress largely enacted this proposal in the Interior Appropriations Act for FY2001 (P.L.
106-291). President Bush’s budget requests have proposed continuing most of the wildfire
management programs expanded under President Clinton. (For background on wildfire
funding, see CRS Report RS21544, Wildfire Protection Funding. For action on bills
appropriating fire funds, see CRS Report RL32306, Appropriations for FY2005: Interior and
Related Agencies.)
In the FY2005 Interior Appropriations Act (H.R. 4568), the House provided $3.02
billion, including $500 million for emergency firefighting funds ($100 million for the BLM
and $400 million for the FS). This is $551.5 million (22%) above the Administration’s
FY2005 budget request, and $274.1 million (8%) less than FY2004 appropriations ($3.29
billion), including enacted emergency funding of $947.3 million. The Senate Appropriations
Committee reported a separate Interior Appropriations Act (S. 2804, S.Rept. 108-341) with
$2.98 billion for FY2005, including emergency funds of $100 million for the BLM and $400
million for the FS, if needed. This is $36.8 million (1%) less that the House provided.
The FS and BLM wildland-fire line items include funds for fire suppression (fighting
fires), preparedness (equipment, training, baseline personnel, prevention, and detection), and
other operations (rehabilitation, fuel treatment, research, and state and private assistance).
In addition, the FS has fire protection assistance programs funded under State and Private
Forestry (S&PF). These programs provide assistance to states — financial and technical help
for fire prevention, fire control, and prescribed fire use by state foresters — and through
them, to other agencies and organizations, and also provide direct assistance to volunteer fire
departments. Also, the 2002 farm bill (P.L. 107-171) created a community fire protection
program to authorize the FS to act on nonfederal lands (with the consent of the landowner)
and assist in protecting structures and communities from wildfires.
Fuel Reduction. The severe 2002 fire season prompted President Bush to propose
a Healthy Forests Initiative, which aims to alter federal forest management laws to accelerate
many of the existing procedures for reducing the fuel levels on federal lands. These
proposals led to extensive discussions in the 107th Congress of the various fire protection
programs, primarily fuel reduction, and of various viewpoints on limitations or difficulties
in their use. As legislation was not enacted in the 107th Congress, the discussions continued
in the 108th Congress.
Several tools exist for reducing fuel loads. Prescribed burning — setting fires under
prescribed weather and fuel conditions — can be effective for converting small fuels
(grasses, needles or leaves, twigs) to minerals and to carbon dioxide and other gases, but
prescribed fires produce large quantities of smoke and can be difficult to control. Salvage
and other timber harvesting can reduce biomass from medium- and large-diameter trees, but
the limbs and tree tops (slash) that are left after logging increase fuel loads, at least until the
slash has rotted or been burned or removed. In addition, generally only sound trees of at least
6 inches in diameter can be sold for wood products, and thus commercial sales may be
ineffective for removing small-diameter and low quality trees. Thinning, especially
precommercial thinning (cutting trees with little or no commercial value), may be effective
at reducing medium- and small-diameter trees, but also leaves behind slash, and is usually
quite expensive.
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These and other tools and techniques are commonly used in combination to achieve the
desired goals (lower fuel loads, better water quality, etc.). A single tool might be sufficient
for a particular site, but the variety of forest conditions suggests a coordinated program of
relevant tools and techniques. The need to combine tools and the high cost of many tools has
led some observers to propose a different approach: trading goods (timber) for services
(other activities in the same area). This approach has been called goods-for-services
contracting, land management service contracting, stewardship contracting, end-results
contracting, and other terms. These contracts are generally modified timber sales, where the
agency requires timber purchasers to perform other, typically related services (e.g.,
precommercial thinning), and in return they pay less for the timber. (See CRS Report
RS20985, Stewardship Contracting for the National Forests, by Ross W. Gorte.) Authority
for the FS and the BLM to use goods-for-services stewardship contracting through 2013 was
enacted in §323 of Division F of the Consolidated Appropriations Resolution for FY2003
(P.L. 108-7).
The presence of unnaturally high fuel loads (dense undergrowth and dead trees) in many
forests is widely presumed to be a significant factor in the apparently increasing severity of
recent fire seasons. This leads to the logical conclusion that lowering fuel loads will reduce
the extent, severity, and costs of wildfires, and many assert that reducing fuel loads is
necessary to allow control of severe wildfires and to reduce the damage they do. Critics of
that conclusion contend that these recent severe fire seasons are the result of prolonged
drought, combined with lightning to start fires and high winds to push them, and argue that
lower fuel loads may have little effect on the extent and severity of wildfires. Critics also
question the effectiveness of fuel treatment. Research has shown that treatments (including,
but not limited to, reducing fuels) can protect individual structures and can reduce fire
damages in certain ecosystems. However, research documenting the effectiveness of broad-
scale fuel reduction treatments for reducing the extent, severity, and control costs of wildfires
is generally lacking.
Proponents of fuel reduction have expressed frustration with alleged project delays
resulting from analyses of the environmental effects of proposed projects, from public
involvement in agency planning and decision-making, and from administrative and judicial
challenges to agency decisions. The National Environmental Policy Act of 1969 (NEPA;
P.L. 91-190, 42 U.S.C. §§4321-4347) requires federal agencies to assess the possible
environmental effects of their actions and to involve the public in their decisions. The FS
is also required by §322 (commonly known as the Forest Service Appeals Reform Act) of
the 1993 Interior Appropriations Act (P.L. 102-381) to allow administrative appeals of most
plans and decisions. (The DOI has different administrative review processes, but the
processes have not been as controversial as the FS appeals process.) The agencies and
certain interest groups see these laws as causing lengthy delays for projects seen as critical
to protecting both wildlands and communities from wildfire, and propose eliminating or
streamlining environmental studies, administrative reviews, and judicial review. Opponents
contend that the reports of delays are exaggerated and that these laws are designed to protect
the environment. They are also suspicious of Administration plans that could increase timber
harvests for the industry and road construction into roadless areas while, they assert, reducing
public input into decision-making.
The House-passed Interior Appropriations Act matches the President’s FY2005 budget
request for fuel reduction — $475.5 million, a rise of $58.1 million (14%) from FY2004
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appropriations ($417.4 million). The Senate Appropriations Committee recommended fuel
reduction funding of $470.5 million, $5.0 million (1%) below the House and requested
levels. These amounts are substantially below the $760.0 million authorized for fuel
reduction in Title I of the Healthy Forests Restoration Act of 2003.
Administrative Action. Because wildfire protection legislation was not enacted in
the 107th Congress, the Bush Administration has made two administrative changes to
facilitate fuel reduction by the FS and by DOI. The effect of both changes would be to
expedite the authorized activities by reducing environmental review and/or public
involvement.
One change is the addition of two new categories of actions to be excluded from NEPA
analysis and documentation: fuel reduction and post-fire rehabilitation activities (68 Federal
Register 33814, June 5, 2003). Categorically excluded mechanical fuel reduction (e.g.,
thinning) is limited to 1,000 acres and prescribed burning to 4,500 acres, and both are limited
to the WUI or to certain hazardous condition classes and historic fire regimes. These
categorical exclusions cannot be used in wilderness, or in wilderness study areas if doing so
would impair the suitability of those areas for preservation as wilderness, or if “extraordinary
circumstances” exist and the managers determine that the effects might be significant. Post-
fire rehabilitation projects are limited to 4,200 acres and must be completed within three
years after the wildfire. Fuel reduction and rehabilitation projects using herbicides or
pesticides or involving new permanent road construction may not be categorically excluded,
but the exclusions may be used for projects that include timber sales if fuel reduction is the
primary purpose.
The second change is the revision of the FS administrative appeals process (68 Federal
Register 33582, June 4, 2003). Among the many changes is a clarification that some
emergency actions may be implemented immediately and others may be implemented after
complying with publication requirements. The proposal expands emergency situations to
include those “that would result in substantial loss of economic value to the Government if
implementation of the proposed action were delayed,” while deleting examples of emergency
situations. It also would exclude public notice and opportunity for the public to comment
on or to appeal actions categorically excluded from NEPA, such as the fuel reduction
activities discussed above.
These changes must be read in conjunction with other final and proposed regulatory
changes to understand the potential consequences for fuel reduction, public involvement, and
environmental impacts. New FS forest planning regulations were proposed on December 6,
2002 (67 Federal Register 72770), new procedures for the effect of extraordinary
circumstances on categorical exclusions were finalized on August 23, 2002 (67 Federal
Register 54622), and new categorical exclusions for small FS timber harvesting projects were
finalized on July 29, 2003 (68 Federal Register 44598). The total impact of these proposals
seems to be greater discretion for the FS, and to a lesser extent for the BLM, to act without
environmental studies and with fewer opportunities for the public to comment on or to
administratively appeal those actions.
Legislative Activity in the 108th Congress. Most of the congressional attention
on wildfire protection in the 108th Congress was on the Healthy Forests Restoration Act of
2003, H.R. 1904. The bill, as passed by the House, contained many provisions to expedite
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authorized fuel reduction projects on FS and BLM lands, as well as several other titles for
related programs. The version reported by the Senate Committee on Agriculture, Nutrition,
and Forestry (S.Rept.108-121) was quite similar, but with modifications in many of the
details. After the bill was reported, the committee developed a compromise version that was
offered as a substitute on the Senate floor; the new version passed the Senate on October 30,
2003. It was also quite similar to the House-passed bill, but with many differences in the
details and with many additional sections. An agreement was reached resolving differences
between the House- and Senate-passed versions, and the conference report (H.Rept. 108-386)
was agreed to in the House and the Senate on November 21. The President signed P.L. 108-
148 on December 3, 2003.
Title I of the law addresses hazardous fuel reduction on federal lands. It authorizes a
new alternative process for reducing fuels on up to 20 million acres of national forests or
BLM lands in or near the wildland-urban interface and municipal water supply systems, as
well as certain endangered species habitats and areas affected by wind or ice storms or by
insect or disease epidemics that threaten ecological health or natural resources. Priority is
directed to protecting “at-risk communities” and municipal watersheds. Authorized projects
must be consistent with land management plans and are generally to focus on small trees,
thinning, fuel breaks, and prescribed burning while retaining large trees and maintaining old
growth stands, but are prohibited on certain lands, such as wilderness areas. The law
authorizes $760 million annually for authorized projects and for any other fuel reduction
activities, including grants to states, without allocating funds between authorized and other
projects.
For authorized projects, the FS or BLM must prepare NEPA documents, but are allowed
to analyze a very limited number of alternatives. The public can be involved through
scoping, collaboration, and multi-party monitoring of project impacts; the public also must
be given a chance to comment on proposed projects. For FS projects, the agency is to
develop a new pre-decisional review process to supplant the existing administrative appeals
process, and administrative reviews must be “exhausted” before litigation is allowed.
Lawsuits must be filed in the district court for the area where the project is proposed, and
courts are encouraged to review cases expeditiously. Preliminary injunctions are limited to
60 days, but can be renewed, and courts are directed to balance short- and long-term impacts
of action and of inaction.
P.L. 104-148 contains five other titles, as well. Title II expands biomass research,
authorizes a new biomass rural revitalization program, and authorizes grants for biomass use.
Title III establishes a watershed forestry assistance program with cost-sharing assistance to
landowners and financial and technical assistance to states and to tribal governments to
protect water quality through forestry practices. Title IV authorizes data collection on forest-
damaging insects and “applied silvicultural assessments” (treatments for research purposes)
of up to 1,000 acres each (250,000 acres total) which are categorically excluded from NEPA,
but with peer review and public notice and comment on each project. Title V authorizes a
program of 10-year agreements or 30-year or long-term (up to 99-year) easements to pay
willing private landowners to protect or restore their lands as habitat for endangered species.
Finally, the one section in Title VI authorizes an “early warning system” for environmental
threats primarily to eastern U.S. forests.
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Other wildfire protection legislation has been introduced in the 108th Congress. Some
of these measures (e.g., H.R. 387) are substantially the same as 107th Congress bills. (See
CRS Report RL31679, Wildfire Protection: Legislation in the 107th Congress and Issues in
the 108th Congress, by Ross W. Gorte.) Still others focus on narrow aspects of fire
protection (e.g., firefighting equipment availability) or protecting private lands (e.g., H.R.
1042). Other comprehensive bills also have been introduced, notably H.R. 1621, S. 1314,
H.R. 2639/S. 1352, S. 1449, and S. 1453. S. 1449 is similar to H.R. 1904. The others,
although they have significant differences, would authorize or direct categorical exclusions
from NEPA for fuel reduction projects on certain lands and under certain conditions over the
next five years, with priority on the WUI and municipal water supply systems. S. 1314 also
would authorize assessments of insect infestations, borrowing for fire suppression, and
funding for wildfire risk reduction and burned area restoration on nonfederal lands, while
limiting application of the competitive sourcing initiative. H.R. 2639/S. 1352 also would
authorize biomass utilization grants, forest health inventory and monitoring, emergency fuel
reduction grants to private landowners, and priority for assistance to communities with
proactive steps to reduce fire risks. S. 1453 also would authorize specific forestry research,
watershed forestry assistance, federal compensation for private forest reserves, and an
economic assistance program for forest resource dependent communities.
LEGISLATION
P.L. 108-148, H.R. 1904
The Healthy Forests Restoration Act of 2003 authorizes expedited planning and review
procedures for fuel reduction projects on federal lands, grants for biomass utilization,
watershed forestry assistance, assessment and treatment of insect infestations, federal
payments for a private forests reserve system, and monitoring of environmental threats to
forests. Passed House May 20, 2003, and Senate, with an amendment in the nature of a
substitute, October 31, 2003. Conference agreement (H.Rept. 108-386) agreed to by House
and Senate November 21, 2003. Signed into law December 3, 2003.
H.R. 387 (Shadegg)
The Wildfire Prevention and Forest Health Protection Act authorizes FS Regional
Foresters to exempt tree-thinning projects from any provision of law, and from
administrative appeals and judicial review. Introduced January 27, 2003; referred to
Committee on Agriculture and Committee on Resources.
H.R. 460 (Hayworth)/H.R. 2696 (Renzi)/S. 32 (Kyl)
The Wildfire Prevention Act of 2003/Southwest Forest Health and Wildfire Prevention
Act of 2003 establishes Institutes to demonstrate and promote adaptive ecosystem
management to reduce the risk of wildfires and restore healthy fire-adapted ecosystems in
the West. S. 32 introduced January 7, 2003; Senate Committee on Energy and Natural
Resources held hearings February 27, 2003 (S.Hrg. 108-10). H.R. 460 introduced January
29, 2003; referred to House Committee on Resources. H.R. 2696 introduced July 10, 2003;
passed House February 24, 2004 and reported by Senate Committee on Energy and Natural
Resources (S.Rept. 108-252) March 29, 2004.
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H.R. 1042 (Udall, M.)
The Forest Restoration and Fire Risk Reduction Act authorizes a cooperative program
for wildland fire hazard reduction and forest restoration on federal and other lands, with
special procedures for projects meeting the specified conditions. Introduced February 27,
2003; referred to Committee on Agriculture and Committee on Resources.
H.R. 1621 (Miller, G.)
The Federal Lands Hazardous Fuels Reduction Act of 2003 authorizes expedited
procedures for fuel reduction projects on certain federal lands over the next five years.
Introduced April 3, 2003; referred to Committee on Agriculture and Committee on
Resources.
H.R. 2639 (Hooley)/S. 1352 (Wyden)
The Community and Forest Protection Act authorizes expedited procedures for fuel
reduction projects on certain federal lands over the next five years, biomass utilization grants,
forest health inventory and monitoring, emergency fuel reduction grants, and assistance to
communities with proactive steps for fire protection. Both introduced June 26, 2003; H.R.
2639 referred to House Committee on Agriculture and House Committee on Resources, and
S. 1352 referred to Senate Committee on Agriculture, Nutrition, and Forestry. Senate
Committee on Energy and Natural Resources held hearings on S. 1352 July 22, 2003.
S. 1314 (Bingaman)
The Collaborative Forest Health Act authorizes expedited procedures for certain fuel
reduction projects over the next five years, assessment of insect infestations, borrowing for
fire suppression, limits on competitive sourcing, and funding for wildfire protection and
rehabilitation of nonfederal lands. Introduced on June 23, 2003. Senate Committee on
Energy and Natural Resources held hearings July 22, 2003.
S. 1449 (Crapo)
America’s Healthy Forest Restoration and Research Act authorizes expedited planning
and review procedures for fuel reduction projects on federal lands; grants for biomass use;
watershed forestry assistance; research on insect infestations, forest threats, biomass use, and
economic development and treatment of insect infestations; federal payments for private
forest reserves; and a program for controlling invasive plants. Introduced July 23, 2003;
referred to Committee on Agriculture, Nutrition, and Forestry.
S. 1453 (Leahy)
Forestry and Community Assistance Act of 2003 authorizes expedited procedures for
certain fuel reduction projects over five years, research on forest health protection, watershed
forestry assistance, federal payments for private forest reserves, and assistance for rural
communities dependent on natural resources. Introduced July 23, 2003; referred to
Committee on Agriculture, Nutrition, and Forestry.
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FOR ADDITIONAL READING
CRS Report RL30755. Forest Fire/Wildfire Protection, by Ross W. Gorte.
CRS Report RS21544. Wildfire Protection Funding, by Ross W. Gorte.
CRS Report RS21880. Wildfire Protection in the Wildland-Urban Interface, by Ross W.
Gorte.
CRS Report RS20822. Forest Ecosystem Health: An Overview, by Ross W. Gorte.
CRS Report RL32306. Appropriations for FY2005: Interior and Related Agencies,
coordinated by Carol Hardy Vincent and Susan Boren.
CRS Issue Brief IB10076. Public (BLM) Lands and National Forests, coordinated by Ross
W. Gorte and Carol Hardy Vincent.
CRS Report RL31679. Wildfire Protection: Legislation in the 107th Congress and Issues in
the 108th Congress, by Ross W. Gorte.
CRS Congressional Distribution Memorandum. The Healthy Forests Restoration Act of
2003, by Ross W. Gorte (January 5, 2004).
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