Red Lodge Clearinghouse - Healthy Forests Restoration Act

Healthy Forests Restoration Act

The Healthy Forests Restoration Act of 2003 significantly changed the way the Forest Service and the Bureau of Land Management can do fuel reduction projects to reduce the risk of catastrophic fire. In addition to specifying how special fuels reduction projects should be created and implemented, the law also promotes use of biomass and small diameter materials; creates a forest reserve program; provides technical assistance for private landowners; and addresses insect infestations and other environmental threats to healthy forests. While the new law changed the rules for fuels reduction projects, it did not include money for project implemention, consequently, doing fuel reduction projects, funding for agency projects under the program is still a challenge.

Key Concepts

Healthy Forests Restoration Act

Key Concepts
Title 1: Hazardous Fuel Reduction on Federal Land
Title 2: Biomass and Small Diameter Materials
Title 3: Watershed Forestry Assistance
Title 4: Insect Infestations and Related Diseases
Title 5: Healthy Forests Reserve Program
Title 6: Inventory and Monitoring Program

Process Essentials: Communities and Hazardous Fuels Reduction Projects
Community Wildfire Protection Plans
Prioritizing Projects and Financial Assistance
The NEPA Process
Multi-Party Monitoring

Controversies: Appeals and Litigation

Collaboration in Action
Lessons Learned on Collaboration
Protecting Communities on the Front Range of Colorado
Partnership Resotres Aspen, Reclaims Oil and Gas Fields in Wyoming

Forest Agreement Limits Lawsuits in Arizona Ponderosa Pine Forests

Recently Enacted Legislation Related to Wildland Fire Management

Pending Legislation

Links

TITLE 1: Hazardous Fuel Reduction on Federal Land

Title I of the Healthy Forests Restoration Act (HFRA) has been the most controversial. The new law:

calls for fuel reduction projects on up to 20 million acres;
requires that at least 50% of appropriated funds be spent on projects in the urban-wildlands interface where the risk to life and property from a major fire is greatest;
allows the Forest Service and BLM to focus on urban watersheds as well as areas that provide important habitat for threatened and endangered species;
directs the agencies to avoid old-growth forests (though the exceptions provided in the bill are broad and a source of continuing concern to conservationists);
expedites the NEPA process by limiting the number of alternatives that must be studied as part of environmental reviews and by requiring consideration of only one alternative for projects that would take place in the urban-wildland interface;
establishes an entirely new "predecisional" administrative review process in which all requests for review have to be made to the agency after it completes the EA or EIS but before it issues its final decision approving the project;
allows only those who have submitted specific written comments that relate to the proposed action during the NEPA scoping process or public comment period to object to the project;
precludes anyone from litigating over a fuels reduction project unless they participated in this new administrative process;
encourages courts to expedite their review of lawsuits and requires them to balance the effects of doing the project against the risks of not doing it before putting the project on hold through an injunction or a stay; and
authorizes Congress to take the next step by providing as much as $760 million each year to the Forest Service and BLM to carry out these fuels reduction projects.

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For additional information on all of the HFRA titles, see the HFI/HFRA Interim Field Guide. This guide briefly describes the tools of the Bush Administration's Healthy Forests Initiative (NEPA categorical exclusions, guidance on EAs, ESA procedures, appeals rules amendments) and focuses on the expedited processes available under Title I of the HFRA.

Forest Service HFI Project Update 2003–mid-2006

About 8.5 million acres treated 6 million acres for hazardous fuels reduction, 2.5 million acres for landscape restoration through other land management activities.
Of these, about 5.5 million acres (65%) were treated in the Wildland Urban Interface (WUI).

As of August, in FY 2006

Forest Service has treated about 1.6 million acres of which 1.1 million acres are in WUI.
For FY 2006 nearly $600 million have been allocated for activities
In FY 2005, HFI tools were used to treat approximately 100,000 acres; Forest Service plans to treat about 208,000 acres in about 800 treatments.

For more data, see the Healthy Forest Report: July 10, 2006

Forest Service HFRA Project Update

FY 2005 - Forest Service treated approximately 23,000 acres in 71 treatments under Title I.

For FY 2006, Forest Service planned to treat about 62,000 acres in 138 treatments under Title I.

In this period, Forest Service treated an additional 115,000 acres under Title I in response to Hurricane Katrina.

Data from Dale Bosworth, Chief, U.S. Forest Service, Congressional Testimony, July 19, 2006

For a critique of the HFRA, see the 2007 State of the Rockies Report Card.

TITLE 2: Biomass and Small Diameter Materials

The biomass title of the HFRA amends existing laws to:

improve existing biomass use research;

accelerate adoption of technologies using biomass and small-diameter materials;

create community-based enterprises through marketing activities and demonstration projects; and

establish small-scale business enterprises to make use of biomass and small-diameter materials.

This title also authorizes the Department of Agriculture to make grants to help offset the costs of using biomass.

For follow-up on the implementation of this provision, Forest Guild Releases First Report Assessing Woody Biomass Harvesting Guidelines, 1/8/09.

Biomass Funding Update
Two woody biomass production and treatment research projects are being funded at $1 million each

In FY2005, 20 grants were awarded for $4.4 million; in FY 2006, 18 applications, totaling almost $4.2 million were selected. These grants aim to accelerate adoption of biomass technologies and to create community-based enterprises through market activities.

Data from Dale Bosworth, Chief, U.S. Forest Service, Congressional Testimony, July 19, 2006
TITLE 3: Watershed Forestry Assistance
The watershed assistance title of the HFRA allows the Department of Agriculture to provide technical, financial, and related assistance to states to expand state forest stewardship programs to address watershed issues on non-federal forested land and potentially forested land. This title also provides for technical, financial, and related assistance to Indian tribes for the same purposes.
TITLE 4: Insect Infestations and Related Diseases
The insect and disease title of the HFRA requires the Forest Service to develop and carry out an "applied silvicultural assessment program," to combat infestations by forest-damaging insects and associated diseases. This program is to be developed in conjunction with states, universities and private landowners. "Applied silvicultural assessments" are any vegetative or other treatment carried out for information gathering and research purposes, and include timber harvesting, thinning, prescribed burning, pruning, and any combination of those activities. The Forest Service can conduct these activities for research purposes on federal land that it determines is infested or at risk of infestation by forest-damaging insects. The bill does not permit these assessments in wilderness areas or wilderness study areas or on federal lands where the removal of vegetation is explicitly restricted or prohibited. The assessments have to be consistent with the area's land and resource management plan. Under the program, insecticides cannot be used on municipal watersheds and associated riparian areas.

The Forest Service must provide public notice and allow for public comment before conducting assessments, but assessments of 1,000 acres or less, and up to 250,000 total acres, are categorically excluded from NEPA analysis. The Forest Service is not required to evaluate whether silvicultural assessment projects will significantly effect the environment before conducting them, but the agency is required to set up a multi-party monitoring effort to evaluate projects if there is significant local interest in doing so.

To-date, Forest Service has focused on assessments in eastern forests. For more information on applied silvicultural assessments, see the Forest Service web site.
TITLE 5: Healthy Forests Reserve Program

Reserve Program Funding Update

Data from Dale Bosworth, Chief, U.S. Forest Service, Congressional Testimony, July 19, 2006

The Food, Conservation, and Energy Act of 2008 authorized $9,750,000 for each of the fiscal years 2009 through 2012 to carry out the Healthy Forest Reserve Program. In a rule proposed by the Natural Resources Conservation Service in January 2009, the agency described the use of these funds: "NRCS will allow land enrollment through permanent easements, or easements for a maximum duration allowed under state law and continue to allow enrollment through 10-year cost-share agreements; and allow enrollment of land owned by tribes or members of tribes in 30-year contracts or 10-year cost-share agreements, or any combination of both. Forty percent of program expenditures in any fiscal year will be used for restoration cost-share agreement enrollment and 60 percent of program expenditures in any fiscal year will be for easement enrollment." Text from Healthy Forests Reserve Program, Proposed Rule, Jan. 14, 2009

Title 5 of the HFRA Title authorizes creation of a reserve program to:

help restore and enhance forest ecosystems;

improve biodiversity, and

promote the recovery of species under the Endangered Species Act.
Private landowners can enroll their property through a 10-year cost-share agreement or easements of up to 99 years. To enroll land, the landowner and the Secretary of Agriculture jointly develop a restoration plan and the government pays up to 100 percent of the cost of implementing the restoration plan and part of the value of the land enrolled. This title also provides for technical assistance to the landowner and a "safe harbor" agreement under the Endangered Species Act.

Go to Endangered Species Act for additional information on listed species , candidate species , and safe harbor agreements.
TITLE 6: Inventory and Monitoring Program
The final title of the HFRA authorizes the Department of Agriculture to carry out a comprehensive assessment program and develop an early warning system for environmental threats (including insects, diseases, invasive species, fire, and weather-related risks and other episodic events) for certain forest lands and private lands.

Threat Assessment Centers
Two new threat assessment centers evaluate the impacts of invasive species and diseases and other threats to the health of ecosystems:

West: Prineville, Oregon

East: Asheville, North Carolina

Both centers work cooperatively with NASA's Stennis Space Center to identify promising remote sensing and geospatial technologies for early detection of environmental hazards and response or susceptibility of forests to multiple stresses.

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Process Essentials: Communities and Hazardous Fuels Reduction Projects

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The HFRA is supposed to help protect communities from catastrophic wildfires, but how well it works will depend on how the Forest Service and BLM implement the law. At-risk communities can have a role in making it work by developing "community wildfire protection plans" that identify and prioritize areas for hazardous fuel reduction treatments and recommend methods of treatment.
Community Wildfire Protection Plans
To have maximum influence over the hazardous fuels reduction projects in their areas, communities must develop community wildfire protection plans (CWPP) using a collaborative process. The plans must be developed in consultation with federal agencies and agreed to by local government, the local fire department, and the state agency responsible for forest management. While federal agencies must be involved, they do not have to follow Federal Advisory Committee Act (FACA) or National Environmental Policy Act (NEPA) rules to help develop the plans.

CWPP Update

States report 654 completed CWPPs covering almost 2,700 communities

600 additional CWPPs are in progress.

A single CWPP may include multiple communities.
Data from Dale Bosworth, Chief, U.S. Forest Service, Congressional Testimony, July 19, 2006

Additional resources are available at the Interagency Healthy Forests and Rangelands web site.

For more information on collaboration in CWPPs, see the web site of the Joint Fire Science Program study of collaboration in CWPPs (2005 - 2007).

In September of 2008, a consortium of Western-based nongovernmental organizations released a series of publications intended to address the critical need for protection of communities at risk to wildfire. The groups include Resource Innovations (Eugene, Oregon), Sustainable Northwest (Portland, Oregon), the Forest Guild (Santa Fe, New Mexico), and the Watershed Research and Training Center (Hayfork, California).
Prioritizing Projects and Financial Assistance
Under the HFRA, the agencies must give priority to projects on federal lands that will implement these community wildfire protection plans or otherwise protect at-risk communities or watersheds. The agencies must also consider recommendations of communities with plans when the agencies distribute financial assistance for projects on non-federal land.
The NEPA Process
Categorical Exclusions: FY 2005-August 2006

Forest Service has used CEs to meet NEPA requirements and facilitate implementation of 669 hazardous fuels treatment projects.

CEs may be used in another 481 hazardous fuels treatment projects that remain in various planning stages
Data from Dale Bosworth, Chief, U.S. Forest Service, Congressional Testimony, July 19, 2006
Communities that have developed wildfire protection plans can also influence hazardous fuels reduction projects through the NEPA process. In developing projects, the Forest Service must prepare an environmental assessment (EA) or environmental impact statement (EIS) as required by NEPA, but the HFRA limits what alternatives the agency can consider in the document:

If a project is in the wildland-urban interface, an agency only has to study its own proposed action and one alternative action.

If the project is located within 1.5 miles of an at-risk community, the agency does not even have to evaluate one alternative to its proposed action unless the community has developed a wildfire protection plan.

If the community has a wildfire protection plan, the agency has to either implement the plan's recommendations or consider these recommendations as an alternative in its NEPA analysis.
Multi-party Monitoring
Communities can also influence hazardous fuels reduction projects through a multi-party monitoring process. In general, the agencies will monitor the results of the projects. But where the community shows significant interest, the agency must establish a multiparty monitoring, evaluation, and accountability process in order to assess the ecological and social effects of the projects.
Controversies: Appeals and Litigation
One of the most controversial parts of the HFRA changed the way in which people can object to specific fuels reduction projects. The law required the Forest Service to create a "predecisional administrative review process." The Forest Service interim final rule , published and effective in January 2004, exempts hazardous fuel reduction projects from the agency's existing administrative appeal procedures (the part 215 rules) and establishes a separate review procedure (part 218 rules). This procedure allows people to object to projects earlier than they used to, but it limits who, when and how objections can be made and how the agency reviews them.

Only individuals and organizations who have submitted specific written comments during NEPA public comment periods for the proposed project may file an objection to the project.

Objectors have 30 days to file objections;

Objectors must go through the administrative review process (exhaust their administrative remedies) before going to federal court;

Judicial review of projects will generally be limited to issues raised during the objection process.

Only in rare circumstances, can someone sue the Forest Service without going through the administrative review process. For example, someone who has not used the new administrative process can try to halt a project in court if significant new information about the project becomes available after conclusion of the administrative review.
For more information on the Forest Service's existing administrative review processes, go to National Forest Management: Process Essentials: Administrative Review.

Montana's Bitterroot Forest faced a lawsuit upon releasing its first HFRA project in 2006, the Middle East Fork Hazardous Fuel Reduction Project. On November 6, 2008, the Ninth Circuit Court of Appeals upheld the project, rejecting challenges from two environmental groups.
Collaboration in Action
Lessons Learned on Collaboration
How is collaboration working to improve fuels management? The Forest Service and its partners are working to answer this question through the Fuels Planning: Science Synthesis and Integration Project. Their first publication is now available online.
Future publications from the team will synthesize the published literature on information and tools to:

Help managers work with communities to communicate the risk and uncertainty of fuels treatment projects;

Evaluate the social acceptability of fuels treatments;

Describe and evaluate the aesthetic impacts of fuels treatments;

Encourage more active involvement of private property owners in the fuels management process;

Help us understand and evaluate the social impacts of wildfire.
Each synthesis includes an annotated bibliography that identifies important published literature that supports the findings discussed in the publication. A series of manager fact sheets that introduce the knowledge contained in the synthesis are also available online.
Protecting Communities on the Front Range of Colorado
The Front Range of Colorado — where the prairie meets the mountains and where dozens of towns are threatened by wildfire. Since 2004, the Front Range Roundtable , including local governments, federal and state agencies, universities and emergency managers, business interests and conservation groups, have been meeting to create a vision for managing Front Range wildfire. The Roundtables' vision recognizes the ecological prerequisites of the landscape as well as social needs and economic realities. Participants believe that fire management can bring communities of interest together to find solutions to land and resource challenges — and they are working hard to make it happen.

Partnership Restores Aspen, Reclaims Oil and Gas Fields in Wyoming
A collaborative partnership in Wyoming seeks opportunities to deal with beetle-killed conifers, restore productive aspen stands, and reclaim oil and gas fields. The Little Snake River Watershed Aspen Conservation Joint Venture grew from a large stewardship project that reached from Colorado to Wyoming, focused on fuel reduction in large stands of beetle-killed conifers. The new partnership aims at prolonging that conservation effort, leveraging funds from the Wyoming Wildlife and Natural Reosurce Trust and generating funds from oil and gas companies in exchange for providing them with wood chips to replace mulch, grass, and straw that they previously purchased. The group aims at restoring 10,000 acres of aspen forest near Baggs, Savery, and Dixon, Wyoming.

Forest Agreement Limits Lawsuits in Arizona Ponderosa Pine Forests
In April 2009 a coalition of timber interests and environmental groups agreed to parameters for forest thinning and fuels reduction projects in Arizona's Ponderosa Pine Forests. The agreement signed by the Center for Biological Diversity, the Grand Canyon Trust and Arizona Forest Products Restoration covers restoration efforts on parts of four forests in northern Arizona. The cut trees would provide logs for plywood-like sheets called oriented strandboard.

See "Forest agreement could limit lawsuits ," Deseret News, 8/10/09.

Recently Enacted Legislation Related to Wildland Fire Management
Fiscal Year 2009 Federal Budget and Federal Bailout Plan
The President signed into law the 2009 continuing resolution bill (HR 2638). The measure funds the federal government through March 6, 2009, and includes significant funding for Forest Service and Department of the Interior fire suppression. In addition, the revised federal bailout plan includes extensions of renewable energy production tax credits and an extension of the Secure Rural Schools and Community Self-Determination Act, which provides payments for county governments that have seen fiscal declines from falling timber revenues. Under the plan, county payments will receive funding at continually decreasing levels beginning in fiscal year 2009.

The Consolidated Security, Disaster Assistance, and Continuing Appropriations Act, 2009 (aka the Amendment to the Senate Amendment to H.R.2638) includes:

Chapter 6 – Interior and Environment (pp. 20 – 22)

Department of the Interior

Bureau of Land Management

Wildland Fire Management (Including Transfers of Funds)

For an additional amount for "Wildland Fire Management," $135,000,000, to remain available until expended, of which (1) $110,000,000 is for urgent wildland fire suppression activities, including repayments to other accounts from which funds were transferred in fiscal year 2008 for wildfire suppression so that all such transfers for fiscal year 2008 are fully repaid; and (2) $25,000,000 is for burned area rehabilitation.

Department of Agriculture

Forest Service

Wildland Fire Management (Including Transfers of Funds)

For an additional amount for "Wildland Fire Management," $775,000,000, to remain available until expended, of which (1) $500,000,000 shall be available for emergency wildfire suppression and related activities, of which no less than $300,000,000 shall be transferred to Forest Service accounts within 15 days of enactment of this Act so that all such transfers for wildfire suppression in fiscal year 2008 are fully repaid, including $30,000,000 reallocated between programs in the Wildland Fire Management Account; and of which $100,000,000 shall be transferred within 15 days of enactment of this Act to the fund established by section 3 of Public Law 71-319 (16 U.S.C. 576 et seq.) to repay transfers made for previous emergency wildfire suppression activities; (2) $175,000,000 shall be available for hazardous fuels reduction and hazard mitigation activities in areas at high risk of catastrophic wildfire due to population density and fuel loads, of which $125,000,000 is available for work on State and private lands using all the authorities available to the Forest Service; (3) $75,000,000 is for rehabilitation and restoration of Federal lands and may be transferred to other Forest Service accounts as necessary; and (4) $25,000,000 is for preparedness for retention initiatives in areas at high risk of catastrophic wildfire that face recurrent staffing shortages.

Pending Legislation of the 111th Congress
The Omnibus Public Land Management Act of 2009 (HR 146 ), enacted on March 25, 2009 will:

Require the Secretaries of Agriculture and the Interior to jointly submit to Congress an annual report on their agencies' wildland firefighter safety practices and policies, including training programs and other safety-related activities for fire suppression, prescribed burning, and wildland fire use, and

Respond to a report issued by the Secretaries of Interior and Agriculture that called for collaborative forest restoration projects in order to help combat against catastrophic wildfires by establishing the recommended collaborative process that emphasizes landscape restoration projects on National Forests and other lands.
The Federal Land Assistance Management and Enhancement (FLAME) Act (HR 1404 ), which the House approved on March 26, 2009, would create a separate fund to cover the costs of combating major wildfires. The fund would not be part of usual agency budgets and would be used only for emergencies, such as a catastrophic fire. The bill also includes provisions aimed at reducing the threat of wildfires in approximately 4 million acres of Rocky Mountain forests infested by the mountain pine beetle. For a critical review of the FLAME Act, see "Now's the time to tackle forest fire fighting costs,"New West, 4/9/09.

The Wildfire Risk Reduction and Renewable Biomass Utilization Act (H.R. 1111 ), introduced on Feb. 23, 2009, would promote as a renewable energy source the use of biomass removed from forest lands in connection with hazardous fuel reduction projects. It would amend the Clean Air Act to revise the definition of " " to include biomass removed from certain federal lands inconnection with an authorized hazardous fuel reduction project.
Links
Public Laws
Healthy Forests Restoration Act of 2003
Public Law 108-148
USDA Forest Service
Healthy Forests Initiative
The Forest Service's Healthy Forests Initiative web site describes and provides links to many agency documents and projects, including administrative actions, legislation, and stewardship contracting.
Other Resources
American Forests - Resources for Community Practitioners
The web page of the American Forests Policy Center includes a variety of resources for community practitioners, including policy center reports, views of its community partners on various forestry issues, and American Forests' own policy statements and congressional testimony. The site includes a number of documents on the HFRA legislation.

Society of American Foresters
The Society of American Foresters (SAF), founded in 1900 by Gifford Pinchot, is a national scientific and educational organization representing the forestry profession in the United States. Their web site includes a handbook for preparing community wildfire protection plans produced in cooperation with the Communities Committee, the National Association of Counties, the National Association of State Foresters and the Western Governors' Association.

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