Wildfire Protection: Legislation in the 107th Congress and Issues in the 108th Congress

Wildfire Protection: Legislation in the 107th Congress and Issues in the 108th Congress

Order Code RL31679
Report for Congress
Received through the CRS Web
Wildfire Protection:
Legislation in the 107th Congress
and Issues in the 108th Congress
January 21, 2003
Ross W. Gorte
Natural Resource Economist and Senior Policy Analyst
Resources, Science, and Industry Division
Congressional Research Service ˜ The Library of Congress

Wildfire Protection: Legislation in the 107th Congress
and Issues in the 108th Congress
Summary
The 2000 and 2002 fire seasons were, by most standards, among the worst in the
past 50 years. Many argue that the threat of severe wildfires has grown, because of
unnaturally high fuel loads (e.g., dense undergrowth and dead trees), raising concerns
about damage to property and homes in the “wildland-urban interface” (WUI) —
homes in or near forests. Debates about fire control and protection, including
funding and fuel treatments (e.g., thinning and prescribed burning), have focused on
national forests and other federal lands, but nonfederal lands are also at risk.
Federal wildfire management funding rose dramatically after the severe 2000
fire season. In September 2000, President Clinton proposed a new National Fire
Plan, requesting $1.8 billion to supplement the $1.1 billion originally requested for
FY2001. Congress largely enacted this proposal and funding request, and the
expanded wildfire management programs (excluding the supplemental firefighting
money) have generally been sustained. In the FY2003 Interior Appropriations bill
(H.R. 5093), the House added, and the Senate debated adding, money for firefighting
in the summer of 2002; this legislation was not enacted.
Reducing fuel loads has been proposed for fire protection. Several tools exist
— prescribed burning, salvage and other timber cutting, and thinning. Stewardship
(goods-for-services) contracting has been suggested as a way to fund additional fuel
reduction. Proponents of fuel reduction have expressed frustration with project
delays from environmental analyses of, and public participation in, agency decisions
(primarily under the National Environmental Policy Act, NEPA) and from
administrative appeals and judicial challenges of decisions. Critics, however, are
concerned that hasty action will allow environmentally damaging timber harvesting,
without adequate environmental review and public oversight.
On August 22, 2002, President Bush proposed the Healthy Forests Initiative, to
improve fire protection through fuel reduction. Related bills were introduced in the
107th Congress; however, none was enacted. Several would have eliminated or
reduced NEPA analysis of environmental impacts, broadly or within prescribed
conditions. Some measures proposed eliminating, reducing, or modifying public
involvement in agency decisions. Many would have exempted fuel reduction from
administrative reviews, and two sought to repeal the statute establishing the Forest
Service administrative appeals process. Several would have prohibited, restricted,
or altered judicial review for fuel reduction projects. However, many also would
have required a new collaborative process for decisions on fuel reduction. Most
proposals would have established priorities for action, typically emphasizing the
WUI, municipal watersheds, and areas with insect and disease infestations and
blown-down trees. Some of the bills sought to limit the acreage treated under the
newly-established procedures, to exclude specific classes of lands, and/or to restrict
road construction. Two would have authorized stewardship goods-for-services
contracting. Most proposals would have established permanent programs. This
report is an overview of wildfire protection activity in the 107th Congress, and is
unlikely to be updated.

Contents
Wildfire Management Funding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Hazardous Fuel Treatment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Legislative Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Environmental Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Public Involvement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Priorities for Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Limitations on Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Other Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Legislative Proposals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
H.R. 4775 (Daschle), §706 of the Supplemental Appropriations
Act for FY2002 (P.L. 107-206 . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
H.R. 5214 (Rehberg), the National Forest Fire Prevention Act . . . . . . 10
H.R. 5309 (Shadegg), the Wildfire Prevention and Forest Health
Protection Act of 2002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
H.R. 5319, as Introduced (McInnis), the Healthy Forests Reform
Act of 2002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
H.R. 5319, as Reported, the Healthy Forests and Wildfire Risk
Reduction Act of 2002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
H.R. 5341 (C. Taylor), the National Forest Fire Fuels Reduction
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
H.R. 5376 (Combest) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
S. 2811 (Enzi), the Emergency Forests Rescue Act of 2002 . . . . . . . . 14
S. 2920 (Baucus) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
S.A. 4518 (Craig), the Emergency Hazardous Fuels Reduction
Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
S.A. 4685 (Bingaman-Daschle) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
List of Tables
Table 1. Federal Wildfire Management Appropriations,FY1999-FY2003 . . . . . 2
Table 2. Federal Wildfire Management Legislative Proposals and Issues . . . . . 11

Wildfire Protection: Legislation in the 107th
Congress and Issues in the 108th Congress
Wildfires and efforts to halt the damage they cause have been the focus of
increased attention. 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 because many forests have unnaturally high fuel loads (e.g., dead trees and
dense undergrowth) and an historically unnatural mix of plant species (e.g., exotic
invaders).1 These higher threats have raised concerns about damages to homes that
increasingly abut or are surrounded by forests — the “wildland-urban interface”, or
WUI. 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 have focused on federal lands, especially the
national forests, since federal lands are subject to congressional authority, but the
threats are not limited to federal lands.
Wildfire Management 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. The President 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 was also
increased for fuel treatment, burned area 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 FY2003 budget request proposed continuing most of the
wildfire management programs expanded under President Clinton. Table 1 shows
annual fire management appropriations for FY1999–FY2003 for the major funding
categories: preparedness (having equipment and personnel ready to fight fires);
suppression (fighting ongoing fires); fuel reduction treatments; burned area
restoration and rehabilitation; and other (fire research, facilities, state and local
assistance for firefighting and economic recovery, etc.). The table includes funding
for the USDA Forest Service (about two-thirds of the total) and for the Department
of the Interior through the Bureau of Land Management (BLM). The FY2003
appropriations show the Administration’s request, the levels passed by the House in
H.R. 5093, and the levels recommended by the Senate Appropriations Committee
(S.Rept. 107-201).
1See CRS Report RS20822, Forest Ecosystem Health: An Overview.

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Table 1. Federal Wildfire Management Appropriations,
FY1999-FY2003
(in millions of dollars)
Prepared-
Fuel
Restore
Suppression
Other a
Total
ness
Reduction
& Rehab.
FY1999
527.7
443.8
98.8
5.5 b
26.9
1,102.7
FY2000
566.6
887.3
117.0
20.0
35.2
1,626.1
FY2001
917.9
1,097.1 c
400.1
246.5
235.9
2,887.5
FY2002
903.4
682.7
395.2
82.7
174.7
2,238.8
FY2003
Request d
877.9
581.1
414.2
23.6
126.0
2,022.9
House
918.6
581.1
414.5
83.0
171.6
2,168.8
S. Rec.
877.9
581.1
414.8
23.6
134.2
2,023.5
a Includes BLM funding for the Joint Fire Sciences Program; excludes Forest Service funding
of state and volunteer fire assistance under the State & Private Forestry branch.
b BLM burned area restoration and rehabilitation funding included in suppression for FY1999.
c Includes $624.6 million for FY2000 firefighting and emergency burned area rehabilitation.
d The Administration’s request is adjusted to exclude the costs of a proposal to shift some of the
cost of federal health and retirement benefits.
In addition to FY2003 wildfire management funding, the House included $700
million in H.R. 5093 for FY2002, to reimburse agencies for firefighting efforts
during the severe 2002 fire season. After initially opposing supplemental fire
funding, the Bush Administration requested an additional $825 million in August
2002. This amount was offered in a Senate floor amendment by Sen. Byrd (No.
4480). An amendment to the Byrd amendment by Sen. Craig (No. 4518) on
hazardous fuel reduction became a major focus of the floor debate, but the
discussions and negotiations on a bipartisan substitute did not resolve the issue.
Debate stalled on September 25, 2002, and the Senate enacted continuing funding
resolutions, instead of the Interior (and many other) appropriations acts. These
continuing resolutions did not provide supplemental FY2002 firefighting funds.
Hazardous Fuel Treatment
The presence of unnaturally high fuel loads (i.e., dense undergrowth and dead
trees) in many forests has spurred interest in treatments to reduce those loads. It is
widely presumed that lower hazardous fuel loads will reduce the extent, severity, and
control costs of wildfires. 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
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 in medium- and large-diameter trees, but the limbs and tree tops —
the “slash” — left after logging increase fuel loads, at least until the slash has rotted

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or been burned or removed; in addition, 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.
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 largely modified timber sales, where the agency requires timber
purchasers to perform other, typically related services (e.g., precommercial thinning),
and in return pay less for the timber.2 To date, however, this approach has only been
authorized as pilot programs for the Forest Service.
Critics question the effectiveness of fuel treatment. Research has shown that
treatments (including, but not limited to, reducing fuels) can protect individual
structures.3 Many anecdotes have reported that fuel reduction treatments have helped
in controlling wildfires. However, research documenting the effectiveness of broad-
scale fuel reduction treatments for reducing the extent, severity, and control costs of
wildfires is generally lacking.4
Proponents of fuel reduction have expressed frustration with project delays
resulting from analyses of the environmental effects of proposed projects, from
public involvement in agency planning and decisionmaking, 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 Endangered Species Act (ESA; P.L. 93-205, 16 U.S.C.
§§1531-1540) requires federal agencies to consult with the U.S. Fish and Wildlife
Service (or, in some cases, NOAA Fisheries) on actions that might jeopardize a listed
endangered or threatened species or adversely modify the species’ critical habitat.
The agency and certain interest groups see these laws as causing lengthy delays for
projects seen as critical to protecting wildlands and communities from wildfire.
Opponents contend that these laws are designed to protect the environment, and are
2See CRS Report RS20985, Stewardship Contracting for the National Forests.
3See J. Cohen and J. Saveland, “Structure Ignition Assessment Can Help Reduce Fire
Damages in the W-UI,” Fire Management Notes, v. 57, no. 4 (1997): 19-23.
4 One study reported that certain fuel reduction treatments can moderate extreme wildfires
in some ecosystems and can improve firefighter safety, but observed that fuel reduction
treatments might not be effective in other ecosystems and in windy conditions. See Philip
N. Omi and Erik J. Martinson, Final Report: Effect of Fuels Treatment on Wildfire Severity,
unpublished report submitted to the Joint Fire Science Program Governing Board (Fort
Collins, CO: Colorado State Univ., Western Forest Fire Research Center, March 25, 2002).

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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.
Fuel treatment proponents also argue that administrative appeals of Forest
Service fuel reduction projects add substantially to the delays.5 Two separate studies
examined administrative appeals of fuel reduction projects. The General Accounting
Office (GAO) reported that Forest Service data showed 20 of 1,671 projects (1%)
had been appealed.6 In contrast, the Forest Service reported that 155 of 326
mechanical fuel reduction projects (48%) had been appealed.7 One review by a forest
advocacy group, however, reported that the Forest Service study contained unreliable
and biased data.8
Some argue that fuel reduction is an emergency that warrants immediate action.
More acres burned during the 2000 fire season than in any other year since 1960, and
early severe fires in Arizona and Colorado made the 2002 fire season seem destined
to be even worse. (The 2002 season moderated somewhat later in the summer, but
still ranked 4th in acres burned since 1960.) In the 2002 fire season, fires caused
extensive impacts with smoke and apparent threats to homes, but burned less than
1% of the wildlands in the interior West.9 No data exist on the acres burned in the
WUI, nor on the number or proportion of WUI homes burned or evacuated.
Legislative Issues
Concerns over wildfire threats spawned numerous legislative proposals. Bills
addressed various aspects of federal wildfire management: environmental
considerations; public involvement and challenges to decisions; priorities for action;
limitations on action; and other factors.
5The Forest Service allows the public to request an internal agency review of its decisions,
as required by §322 of the FY1993 Interior Appropriations Act (P.L. 102-381; 16 U.S.C.
§1612 note).
6U.S. General Accounting Office, Forest Service: Appeals and Litigation of Fuel Reduction
Projects, GAO-01-1114R (Washington, DC: Aug. 31, 2001).
7U.S. Dept. of Agriculture, Forest Service, Factors Affecting Timely Mechanical Fuel
Treatment Projects (Washington, DC: July 2002). Note that mechanical fuel reduction is
a subset of all fuel reduction practices.
8Jeffrey Morton and Laura McCarthy, A Comparison of Two Government Reports on
Factors Affecting Timely Fuel Treatment Decisions (Santa Fe, NM: The Forest Trust, Sept.
3, 2002).
9As of November 15, a total of 7.11 million acres had burned in 2002, including 2.56 million
in the eight interior western states (Arizona, Colorado, Idaho, Montana, Nevada, New
Mexico, Utah, and Wyoming), according to the National Interagency Fire Center [http://
www.nifc.gov/fireinfo/nfnmap.html] on January 16, 2003. These states contain nearly 470
million acres of wildlands (257 million acres of federal lands plus 212 million acres of non-
federal forests and rangelands, according to the USDA Natural Resources Conservation
Service, Summary Report: 1997 National Resources Inventory [Washington, DC: Dec.
2000], pp. 18-24). Thus, 0.55% of wildlands in these 8 states burned in wildfires in 2002.

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Environmental Considerations. NEPA documentation and ESA
consultation were the focus of wildfire protection legislation in the 107th Congress,
although some bills contained additional ecological safeguards. Many bills would
have required the completion of projects under a May, 2002 Forest Service plan, A
Collaborative Approach for Reducing Wildland Fire Risks to Communities and the
Environment, 10-Year Comprehensive Strategy Implementation Plan, often
“notwithstanding” NEPA. In two proposals, this direction to complete projects
would have been limited to “condition class 3” lands.10 A few bills would have
extended this approach broadly, to all proposed fuel treatment projects.
Two bills would specifically have allowed “categorical exclusions” (CEs) from
NEPA documentation for projects on class 3 lands, generally in the WUI, except
under “extraordinary circumstances.” Categorical exclusions can be used by the
Forest Service for projects that are known to have minimal environmental impacts.
However, some CEs have been controversial, and current guidance on CEs includes
timber sales of less than 250 thousand board feet (250 mbf) or salvage sales of less
than 1 million board feet (1 mmbf).11 A court injunction currently prevents the
agency’s use of these CEs for timber harvesting and thinning projects.12 Forest
Service policy had prevented CEs from being used for projects in the presence of
extraordinary circumstances, such as in roadless areas or in endangered species
habitat. However, in December 2001, the agency changed its policy to allow
decision-makers to use CEs in extraordinary circumstances, if they determine that the
proposed actions would not have a significant effect on the environment.
Two proposals would have directed the use of “alternative arrangements” for
NEPA documentation. Alternative arrangements, under 40 CFR §1506.11, allow
agencies to negotiate expedited NEPA procedures with the Council on
Environmental Quality for emergencies. One would have directed such procedures
for designated “emergency mitigation areas,” while the other would have authorized
such procedures for actions that would shift class 3 or class 2 lands to class 1.
Finally, one bill would have authorized analysis of only one alternative, rather
than the broad array required by NEPA. However, in cases where the alternative
includes new road construction, the NEPA analysis would have been required to
include at least one option with no road building (and thus essentially requiring a
second alternative).
Fewer proposals addressed ESA processes. Four proposals would effectively
have eliminated the required ESA consultations for projects that might jeopardize a
10Condition classes 1, 2, and 3 refer to areas with low, moderate, or high (respectively)
likelihood of significant ecological damage from wildfire, as identified in Development of
Coarse-Scale Spatial Data for Wildland Fire and Fuel Management, Gen. Tech. Rept.
RMRS-87 (Fort Collins, CO: USDA Forest Service, April 2002).
11U.S. Dept. of Agriculture, Forest Service, “Chapter 30: Categorical Exclusions from
Documentation,” FSH 1909.15 – Environmental Policy and Procedures Handbook
(Washington, DC).
12Heartwood, Inc. v. United States Forest Service, 73 F.Supp. 2d 962 (S.D. Ill. 1999), aff’d
230 F.3d 947 (7th Cir. 2000).

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species or degrade critical habitat. However, one was limited to specific existing
timber sale areas that have been the subject of litigation and a settlement agreement,
and another would have prohibited timber harvesting in areas where “any threatened
or endangered bird species is known to be nesting ....” In addition, one proposal
would have required consultations to be completed within 75 days, and would have
directed agency budget priorities to assure that the deadline was met. Two proposals
would have directed the agencies to develop expedited consultation procedures.
One bill took a quite different tack. Fuel reduction projects would have been
authorized in threatened or endangered species habitat, if the species had a recovery
plan calling for frequent ground fires as part of the recovery, and if the projects
would have reduced the threat of catastrophic crown fires.
Finally, a few bills would have directed the agencies to maintain “old and large”
trees, although the language varied. One bill would have required retaining at least
the 10 largest trees on each acre. Another would have required keeping old and large
trees, and focusing projects on removing small-diameter trees and brush. A third
would have directed the agencies to retain “an ecologically sufficient number of old
and large trees appropriate for each ecosystem” and to emphasize “thinning from
below” (i.e., the removal of the smallest trees in the stands being thinned). Finally,
one would have limited the cutting of “fire resistant, pre-fire-exclusion old and large
trees ... so as to maintain as nearly as possible an ecologically optimum number of
such trees ....”
Public Involvement. NEPA also requires public involvement in agency
decision-making that affects the environment. Typically, agencies undertake
“scoping” early in the process to understand public interests and identify possible
alternative actions, then may get public comments on the draft alternatives in the
environmental documents and adjust the proposed action in response to those
comments. In addition, the Forest Service provides an opportunity for the public to
request an internal review (known as an administrative appeal) of its final decisions,
as required by §322 of the FY1993 Interior Appropriations Act (P.L. 102-381; 16
U.S.C. §1612 note). The public can also challenge the legality of most agency
decisions in court.
Most legislative proposals to reduce fuels generally would have altered public
involvement under NEPA. Proposals directing completion of fuel reduction projects
under the May, 2002 Collaborative Approach for Reducing Wildland Fire Risks to
Communities and the Environment, 10-Year Comprehensive Strategy Implementation
Plan generally would have halted the public involvement process, although public
input may have been at or near completion already. Other proposals essentially
would have eliminated NEPA public involvement, either by exempting fuel reduction
projects from NEPA or by authorizing categorical exclusions for projects, although
all of the latter proposals specifically would have directed scoping (and thus
presumably public input) on fuel reduction projects.
As noted above, two proposals would have directed the use of “alternative
arrangements” for NEPA documentation for emergency mitigation areas and for
emergency circumstances, respectively. Alternative arrangements, under 40 CFR
§1506.11, allow agencies to negotiate expedited NEPA procedures with the Council

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on Environmental Quality for emergencies. Since procedures would have to be
negotiated, the direction might have altered NEPA public involvement, and might
have induced greater use of alternative arrangements, but the nature and extent of
changes in public involvement are unclear. One proposal seems more explicit, as it
would have established shorter time limits for filing and reviewing comments.
One bill would have altered NEPA public involvement in another way. The bill
sought to establish a new “pre-decisional” process to obtain public input earlier in the
decision-making. Another proposal generally would have authorized the NEPA
analysis to consider only one alternative for public comment, instead of an array of
alternatives as required by law.
Many of the legislative proposals to reduce fuels would have made the projects
not subject to administrative appeals. Some would have exempted fuel reduction
projects from Forest Service regulations under §322 of the FY1993 Interior
Appropriations Act. Others would have exempted such projects from all
administrative appeals, without mentioning §322. Two proposals would have
repealed §322 of the FY1993 Interior Appropriations Act, effectively eliminating the
legal requirement for the Forest Service to provide such administrative reviews.
(Note that §322 is also the source requiring public notice of agency decisions.)
Finally, one bill would have established a new process to expedite administrative
review of fuel reduction projects, to supplant the §322 process in this context.
Several bills, although exempting fuel reduction projects from administrative
appeals, would have directed the agencies to establish a new collaborative process
for decision-making. The new processes would have been required to be consistent
with the Forest Service’s May 2002 10-Year Implementation Plan. In addition, one
proposal would have allowed the agencies to use the collaborative process developed
under the Secure Rural Schools and Community Self-Determination Act of 2000
(P.L. 106-393, 16 U.S.C. §500 note).
Finally, several proposals would have restricted or altered judicial review of fuel
reduction projects. Some would have made decisions not subject to judicial review,
while one would have made just the environmental analysis and public involvement
processes not subject to such review. Several would have shortened the time allowed
for filing lawsuits (to as little as 7 days); many of the same bills would have set
deadlines for court rulings (to as little as 45 days). Some would have prohibited or
restricted preliminary injunctions during court deliberations while others would have
restricted agency action pending a court decision.
Standards for court rulings also would have been modified in some proposals.
One would have set the sole standard as “arbitrary and capricious;” the more usual
“arbitrary and capricious or otherwise not in accordance with applicable law” was
contained in two proposals, although one would also have excluded several statutes
(including NEPA and ESA) from “applicable law.” One bill would have directed
courts to “consider the public interest in avoiding long-term harm” by taking action,
and to “give deference to any agency finding” that avoiding long-term harm
outweighs the short-term effects of action.

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Priorities for Action. Two principal sets of priorities for fuel reduction
activities were included in legislation. Three bills contained seven criteria, in order
of priority: (1) within 1/ mile of private lands with protective treatments; (2) fire
4
hazard or insect-infested stands near private lands or communities; (3) densest insect
infestations that could spread; (4) fire hazard or insect-infested stands near sites with
high resource values; (5) fire hazard or insect-infested stands within “skidding
distance” of existing roads; (6) concentrations of insect-infested trees; and (7) densest
stands most susceptible to insects and near infested trees.
Five proposals included similarly-worded criteria: (1) the WUI; (2) municipal
watersheds; and (3) areas affected by insects or diseases, containing windthrow (trees
blown down), or susceptible to “reburn” (burned areas with sufficient fuel remaining
to burn again). Another generally followed this set, but used areas proximate to
municipal water supply systems (instead of municipal watersheds) and “at-risk”
federal lands, defined as areas with windthrow or the existence or threat of large-
scale disease or insect infestation; this proposal also included threatened and
endangered species habitat as a priority, if the species recovery plan identified the
importance of natural fire regimes and if action would provide protection from
catastrophic wildfire. It should be noted that only one bill included a definition of
the WUI. With no standards for WUI, there would effectively have been no guidance
on which areas would have priority for action.
Two proposals contained other criteria for action. One would have directed tree
removal projects in areas with high fuel loads and the possibility of harmful crown
fires or with fire-killed or fire-damaged trees. The other would have directed
designation of emergency mitigation areas that were affected by severe drought and
had many dead or dying trees “because of disease, insect infestation, an invasive
plant species, or other natural disaster.”
In addition, a few proposals would have required expenditure of at least 70% of
funds for fuel reduction projects to be spent in the WUI or within ½ mile of
communities or municipal watersheds.13 Further, one proposal would have required
100% of funds to be spent on condition class 3 lands. Finally, two proposals would
also have required 10% of funds be spent on projects that benefit small businesses
located in “small, economically disadvantaged communities.” Other bills would not
have established funding restrictions or priorities.
Limitations on Actions. Several proposals would have set limits on the
acreage treated under the established procedures, but the acreage limits varied widely,
from as little as 7,000 to more than 10 million acres. Two proposals specified areas
excluded from fuel reduction projects under the established procedures: designated
wilderness, wilderness study areas, and areas where vegetative removal was
prohibited by law or proclamation in one; and designated wilderness, roadless areas
recommended for wilderness, and areas where timber harvesting was prohibited by
law in the other.
13H.R. 5358 (Inslee; the Community Protection Against Wildfire Act of 2002) would have
required that 85% of all National Fire Plan funds be spent in the WUI, as defined in the bill.

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In addition, several proposals addressed road construction and roadless areas.
Some would have directed that authorized activities would “not affect the
determinations” of areas’ “wilderness capability, wilderness suitability, and/or
roadless character.” Several proposals would have restricted new road construction
— prohibiting all new roads, all new roads into inventoried roadless areas, or new
permanent roads into roadless areas.
Other Issues. Two other issues were addressed in some of the proposals:
goods-for-services contracting and the duration of the authorization. Two proposals
would have authorized goods-for-services contracting in a manner similar to (but
without reference to) the authorization for Forest Service pilot projects in §347 of the
FY1999 Interior Appropriations Act (enacted as §101(e) of division A of P.L. 105-
277; 16 U.S.C. §2104 note). Another would have extended the §347 pilot project
authorization to an additional 19 Forest Service projects and to 26 Interior
Department projects.
Regarding the duration of the authorization, with two exceptions the proposals
would have established permanent programs. One exception would have authorized
activities through FY2011, and the other would have authorized activities through
FY2005.
Legislative Proposals
The concerns over wildfire threats spawned numerous legislative proposals. The
earliest proposals generally were briefer, with additional concerns included in the
later proposals, especially after the President proposed his Healthy Forests Initiative
on August 22, 2002. The following list identifies legislation introduced in the 107th
Congress on wildfire protection, its principal sponsor, and the short title (if any).14
! H.R. 4775, §706; Daschle. §706 of the Supplemental Appropriations Act for
FY2002 (P.L. 107-206).
! H.R. 5214; Rehberg. The National Forest Fire Prevention Act.
! H.R. 5309; Shadegg. The Wildfire Prevention and Forest Health Protection
Act of 2002.
! H.R. 5319; McInnis. The Healthy Forests Reform Act of 2002.
! H.R. 5319, as reported with an amendment in the nature of a substitute by the
House Committee on Resources (H.Rept. 107-770, Part 1). The Healthy
Forests and Wildfire Risk Reduction Act of 2002.
! H.R. 5341; C. Taylor. National Forest Fire Fuels Reduction Act.
! H.R. 5376; Combest, by request of the Administration (and hence also known
as the Administration’s legislative proposal).
! S. 2811; Enzi. The Emergency Forests Rescue Act of 2002.
! S. 2920; Baucus.
! S.A. 4518; Craig. Emergency Hazardous Fuels Reduction Plan.
! S.A. 4685; Bingaman-Daschle.
14Numerous other draft legislative proposals were circulated, particularly substitutes for the
Craig Amendment (S.A. 4518), and one from Senators Wyden and Feinstein is available at
[http://wyden.senate.gov].

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The list excludes two wildfire-related bills which do not generally address wildfire
protection on federal lands: S. 2670 (Kyl, the Wildfire Prevention Act of 2002) to
establish fire and restoration research institutes; and H.R. 5358 (Inslee, the
Community Protection Against Wildfire Act of 2002) to authorize grants for
community and private land wildfire assistance.
Below is a bill-by-bill description of how the proposal addresses each issue. In
addition, table 2 summarizes how each legislative proposal addresses the issues.
H.R. 4775 (Daschle), §706 of the Supplemental Appropriations Act
for FY2002 (P.L. 107-206.
NEPA Environmental Consideration and Public Involvement. Directs
completion of specified projects and projects in seven identified timber sale
analysis areas, “notwithstanding” NEPA. Note that the projects and timber sale
analysis areas are covered by an existing settlement agreement pursuant to
litigation.
ESA Consideration. Not specified, but directs completion of specified
projects and projects in specified areas, “notwithstanding any other provision
of law....”
Other Ecological Restrictions. Directs activities to conform with the
existing settlement agreement.
Administrative Appeals. Specified projects and projects in specified
areas are not subject to §322 appeals.
Judicial Review. Specified projects and projects in specified areas are not
subject to judicial review.
Priorities for Action. Identifies seven criteria in order of priority, with
additional criteria for specified areas.
Limitations on Action. Limits action to the seven identified timber sale
analysis areas, variously estimated at 7,000 to 70,000 acres. Requires action to
be consistent with the settlement agreement.
Stewardship Contracting. Not authorized.
H.R. 5214 (Rehberg), the National Forest Fire Prevention Act.
NEPA Environmental Consideration and Public Involvement.
Authorizes timber projects within timber sale analysis areas, “notwithstanding”
NEPA.
ESA Consideration. Not specified, but authorizes timber projects within
specified areas, “notwithstanding any other provision of law ....”
Other Ecological Restrictions. Directs that authorized actions “shall not
affect the determination of any area’s wilderness capability, wilderness
suitability, or roadless character.”
Administrative Appeals. Authorized projects are not subject to §322
appeals.
Judicial Review. Authorized projects are not subject to judicial review.
Priorities for Action. Identifies seven criteria in order of priority. (The
seven are nearly identical to the criteria in H.R. 4775.)
Limitations on Action. Apparently limited to existing timber sale analysis
areas.
Stewardship Contracting. Not authorized.

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Table 2. Federal Wildfire Management Legislative Proposals and Issues
Ecological
Admin.
Stew.
NEPA
ESA
Judicial Review
Priorities
Acreage
Roads
Restraints
Appeals
Con.
complete
7,000–
no
H.R. 4775
exempt
exempt
exempt
7 criteria
projects
70,000
effect
no
H.R. 5214
exempt
exempt
exempt
exempt
7 criteria
effect
high fuel
H.R. 5309
exempt
exempt
exempt
exempt
load areas
alt. process;
H.R. 5319,
75 days for
45 days for decision;
perm.
pre-decisional
repealed
WUI, et al.
introduced
consultation
no agency action
author.
input
complete
keep old
WUI, et al.;
WUI + 2
no roads
H.R. 5319,
new
60+ days for decision;
more
projects; one
recovery plan
& large
70% in
million “at
in
as reported
process
no prelim. injunctions
proj.
alternative
trees
WUI
risk”
roadless
45 days for decision;
no
H.R. 5341
exempt
exempt
exempt
7 criteria
no agency action
effect
360 days for decision;
complete
expedited
no prelim. injunctions;
10 million
perm.
H.R. 5376
projects;
repealed
WUI, et al.
consultation
consider long-term v.
+ class 3
author.
collaboration
short-term effects
alt.
emergency
S. 2811
arrangements
areas
complete
keep old
3.75
no new
S. 2920
projects; CEs;
& large
exempt
WUI, et al.
million
roads
collaboration
trees; thin
complete
no perm
expedited
keep 10+
360 days for decision;
S.A. 4518
projects;
exempt
WUI, et al.
10 million
roads in
consultation
large trees
no prelim. injunctions
collaboration
roadless
complete
keep old
WUI, et al.;
no roads
S.A. 4685
projects; CEs;
& large
exempt
70% within
2.5 million
in
collaboration
trees; thin
½ mile
roadless

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H.R. 5309 (Shadegg), the Wildfire Prevention and Forest Health
Protection Act of 2002.
NEPA Environmental Consideration and Public Involvement.
Authorizes Forest Service Regional Foresters to exempt covered projects from
NEPA documentation and public involvement.
ESA Consideration. Not specified, but authorizes Forest Service
Regional Foresters to exempt covered projects “from any provision of law ...”
Other Ecological Restrictions. None specified.
Administrative Appeals. Exempts covered projects from §322 notice,
comment, and appeals.
Judicial Review. Exempts covered projects from judicial review.
Priorities for Action. None specified.
Limitations on Action. Covered projects are limited to areas with high
fuel loads and a significant threat of harmful crown fires, or with dead or fire-
damaged trees.
Stewardship Contracting. Not authorized.
H.R. 5319, as Introduced (McInnis), the Healthy Forests Reform Act
of 2002. Funding (more than $7 billion) authorized for FY2004–FY2011.
NEPA Environmental Consideration and Public Involvement.
Identifies wildfire threat as an emergency circumstance authorizing alternative
NEPA arrangements under 40 CFR §1506.11. Directs the Council on
Environmental Quality (CEQ) to establish an expedited NEPA process for each
action certified by the Secretary concerned, and specifies time limits for the
expedited process. Also establishes a new pre-decisional review process for all
Forest Service activities.
ESA Consideration. Requires consultations to be completed within 75
days, and requires agencies to allocate resources to achieve this requirement.
Other Ecological Restrictions. None specified.
Administrative Appeals. Repeals §322.
Judicial Review. Requires challenges to be filed within 15 days, and a
court decision within 45 days; prohibits implementation of action for 45 days.
Priorities for Action. Identifies four criteria for action: WUI; near
municipal watersheds; areas afflicted or imminently threatened by disease or
insect infestation; and areas with windthrow or at high risk of reburn.
Limitations on Action. None specified.
Stewardship Contracting. Authorizes a new, permanent program.
H.R. 5319, as Reported, the Healthy Forests and Wildfire Risk
Reduction Act of 2002.
NEPA Environmental Consideration and Public Involvement.
Authorizes NEPA analysis to include only one alternative (rather than the broad
array required by NEPA), unless the alternative includes road construction; then
at least one alternative must include no new roads.
ESA Consideration. No change in consultation. Excludes action in
threatened or endangered species habitat unless the species recovery plan
includes natural fire regimes for recovery and the project improves protection
from catastrophic fire.

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Other Ecological Restrictions. Limits removal of “fire resistant, pre-
fire-exclusion old and large trees” to retain “an ecologically optimum number
of such trees ....” Also directs emphasis on thinning from below.
Administrative Appeals. Establishes a new administrative appeals
process to supplant §322 for covered projects.
Judicial Review. Requires challenges to be filed within 15 days, and a
court decision within 60 days, although extensions are allowed. However, no
temporary injunctions are allowed.
Priorities for Action. Identifies four criteria for action: WUI (70% of
funding); lands where fire would affect municipal water supply systems; “at-
risk” lands (defined as lands with windthrow or existing or threatened large-
scale insect of disease infestation); and threatened or endangered species (T&E)
habitat. Also includes a process for refining the definition of WUI.
Limitations on Action. Limits treatment acreage of at-risk lands and T&E
habitat to 2 million acres annually. Covered projects are limited to condition
class 3 and adjacent or intermingled condition class 2 lands. Prohibits covered
projects in wilderness and wilderness study areas and areas where removing
vegetation is restricted. Prohibits building new roads into roadless areas in
covered projects.
Stewardship Contracting. Expands the number of Forest Service
contracts authorized, and authorizes a limited number of stewardship contracts
for Department of the Interior lands.
H.R. 5341 (C. Taylor), the National Forest Fire Fuels Reduction Act.
In addition to these several issues, this proposal allows its provisions to be used for
timber sales in preparation, allows the agency to use timber sale funds for projects,
exempts “forest fire fuels reduction timber sales” from various contracting and
procurement requirements, directs reforestation of harvested lands, authorizes sales
where the costs are likely to exceed revenues, and directs that these sales not
substitute for “planned non-forest fire fuels reduction timber sales.” The bill also
contains a provision directing expeditious timber sales in northern spotted owl habitat
“notwithstanding any other law ....”
NEPA Environmental Consideration and Public Involvement.
Authorizes “forest fire fuel reduction timber sales” within timber sale analysis
areas, “notwithstanding” NEPA.
ESA Consideration. Authorizes sales “notwithstanding” ESA, but
prohibits cutting in timber sale units where T&E bird species is known to be
nesting.
Other Ecological Restrictions. None specified.
Administrative Appeals. Exempts sales from administrative review.
Judicial Review. Directs projects to proceed “notwithstanding any
decision, restraining order, or injunction issued by a United States court before
the date of the enactment ....” Requires challenges to be filed within 15 days,
and a court decision within 45 days; prohibits awarding sales for 45 days.
Priorities for Action. Identifies seven criteria in order of priority. (The
seven are nearly identical to the criteria in H.R. 4775.)
Limitations on Action. Prohibits sales in designated wilderness areas;
roadless areas recommended for wilderness by the agencies; and areas where
timber harvesting is prohibited by law. Directs that authorized actions “shall

CRS-14
not affect the determination of any area’s wilderness capability, wilderness
suitability, or roadless character.”
Stewardship Contracting. Not authorized.
H.R. 5376 (Combest). This is the Bush Administration’s legislative proposal
for its Healthy Forests Initiative.
NEPA Environmental Consideration and Public Involvement. Directs
completing fuel reduction projects under the May, 2002 Collaborative
Approach for Reducing Wildland Fire Risks to Communities and the
Environment, 10-Year Comprehensive Strategy Implementation Plan on
condition class 3 areas. Directs a new collaborative process for selecting
projects.
ESA Consideration. Directs expedited consultation procedures.
Other Ecological Restrictions. None specified.
Administrative Appeals. Exempts projects from administrative review
and repeals §322.
Judicial Review. Requires challenges to be filed within 60 days, and a
court decision within 360 days; prohibits temporary injunctions. Prohibits
judicial review of processes established. Requires courts to consider the long-
term effects of inaction and give deference to agency findings that “the public
interest in avoiding the short-term effects of such action is outweighed by the
public interest in avoiding long-term harm to such ecosystems.”
Priorities for Action. Identifies four criteria for action: WUI; municipal
watersheds; areas affected by disease or insect activity or windthrow; or
susceptible to catastrophic reburn. (The four are quite similar to the criteria in
H.R. 5319 as introduced.)
Limitations on Action. Limits treatment to 10 million acres, plus
additional condition class 3 lands.
Stewardship Contracting. Authorizes a new permanent program.
S. 2811 (Enzi), the Emergency Forests Rescue Act of 2002.
NEPA Environmental Consideration and Public Involvement. Directs
that emergency mitigation areas are an emergency circumstance that warrants
alternative NEPA arrangements from CEQ.
ESA Consideration. Not specified.
Other Ecological Restrictions. None specified.
Administrative Appeals. Exempts projects from §322.
Judicial Review. Not specified.
Priorities for Action. Emergency mitigation areas, defined as lands
experiencing severe drought and with many trees “dead or dying because of
disease, insect infestation, an invasive plant species, or other natural disaster.”
Limitations on Action. None specified.
Stewardship Contracting. Not authorized.
S. 2920 (Baucus).
NEPA Environmental Consideration and Public Involvement. Directs
completing fuel reduction projects under the May, 2002 Collaborative
Approach for Reducing Wildland Fire Risks to Communities and the
Environment, 10-Year Comprehensive Strategy Implementation Plan . Directs
a new collaborative process for selecting projects. Authorizes categorical

CRS-15
exclusions from NEPA for projects on condition class 3 lands which remove no
more than 250 thousand board feet of timber (or 1 million board feet of salvage
timber), but requires scoping on all projects.
ESA Consideration. Not specified.
Other Ecological Restrictions. Directs retaining “old and large trees
appropriate for each ecosystem type” and emphasizing removal of small
diameter trees and brush.
Administrative Appeals. Exempts projects from §322.
Judicial Review. Not specified.
Priorities for Action. Identifies three criteria for action: WUI; municipal
watersheds; or areas affected by disease or insect activity or windthrow. (The
three are quite similar to the four criteria in H.R. 5319 as introduced.)
Limitations on Action. Limits treatment to 3.75 million acres. Prohibits
new roads under these projects. Requires that at least 10% of funds be “spent
on projects that benefit businesses that use hazardous fuels and that are located
in small, economically disadvantaged communities.”
Stewardship Contracting. Not authorized.
S.A. 4518 (Craig), the Emergency Hazardous Fuels Reduction Plan.
NEPA Environmental Consideration and Public Involvement. Directs
completing fuel reduction projects under the May, 2002 Collaborative
Approach for Reducing Wildland Fire Risks to Communities and the
Environment, 10-Year Comprehensive Strategy Implementation Plan on
condition class 3 areas, except in wilderness areas. Directs a new collaborative
process for selecting projects.
ESA Consideration. Directs expedited consultation procedures.
Other Ecological Restrictions. Directs retention of “not less than 10 of
the largest trees per acre in any treatment area ....”
Administrative Appeals. Exempts projects from administrative review.
Judicial Review. Requires challenges to be filed within 60 days, and a
court decision within 360 days; prohibits temporary injunctions; and limits
determination to whether project selection was arbitrary and capricious.
Exempts new processes from judicial review.
Priorities for Action. Identifies four criteria for action: WUI; municipal
watersheds; areas affected by disease or insect activity or windthrow; or
susceptible to catastrophic reburn. (The four are identical to the criteria in H.R.
5376.)
Limitations on Action. Limits treatment to 10 million acres. Directs no
new permanent roads in roadless areas.
Stewardship Contracting. Not authorized.
S.A. 4685 (Bingaman-Daschle).
NEPA Environmental Consideration and Public Involvement. Directs
completing fuel reduction projects under the May, 2002 Collaborative
Approach for Reducing Wildland Fire Risks to Communities and the
Environment, 10-Year Comprehensive Strategy Implementation Plan . Directs
a new collaborative process for selecting projects. Projects are categorically
excluded from NEPA if (1) within ½ mile of any community; or (2) in key
municipal watersheds identified in forest plans where new road construction and
timber sales are not allowed.

CRS-16
ESA Consideration. Not specified.
Other Ecological Restrictions. Directs retaining “an ecologically
sufficient number of old and large trees appropriate for each ecosystem type,”
and focusing on thinning from below.
Administrative Appeals. Exempts projects from §322.
Judicial Review. Not specified.
Priorities for Action. Identifies three criteria for action: WUI; municipal
watersheds; and areas affected by disease, insect activity, windthrow, or subject
to catastrophic reburn. (The three are quite similar to the four criteria in H.R.
5319 as introduced.) Also requires funds be spent only on condition class 3
lands, and that 70% be spent within ½ mile of any community or within key
municipal watersheds.
Limitations on Action. Limits treatment to 2.5 million acres. Prohibits
new roads in inventoried roadless areas. Also requires that at least 10% of
funds be “spent on projects that benefit small businesses that uses [sic]
hazardous fuels and are located in small, economically disadvantaged
communities.”
Stewardship Contracting. Not authorized.
Conclusion
The 2000 and 2002 fire seasons were among the worst in the past 50 years,
burning millions of acres and hundreds of homes, and forcing evacuation of many
communities. Many argue that the threat of severe wildfires has grown because
many forests have unnaturally high fuel loads (e.g., dead trees and dense
undergrowth) and an historically unnatural mix of plant species (e.g., exotic
invaders). This has 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). Numerous bills were introduced to facilitate fuel reduction
treatments, generally by expediting environmental reviews, public involvement, and
administrative and judicial challenges — or exempting fuel reduction from such
practices — while establishing action priorities and limitations. Proponents argued
that the threats, especially to homes in the wildland-urban interface (WUI), have
become extreme, and that emergency action is needed to protect lives, property, and
resources from catastrophic wildfires. Critics counter that the situation is less
dangerous than is commonly portrayed, that the benefits of broad-scale fuel reduction
(other than close to structures) are not well documented, and that expediting or
eliminating environmental review and challenges to decisions can cause irreversible
environmental damage.