March 10, 2005
No. PLF 26-05
EXECUTIVE SUMMARY
In 2002, prior to one of the worst fire seasons the nation has ever experienced, the President established the Healthy Forests Initiative (HFI), which gave the BLM important administrative authority to work on restoration projects. Congress provided additional administrative tools needed to fully implement the HFI by passing the Healthy Forests Restoration Act (HFRA) on December 3, 2003. These two national new programs contain a comprehensive approach to providing the land managers with the ability to effectively reduce the accumulation of hazardous fuels and restore wildfire-damaged areas in a timely manner. In addition, Congress also provided authority for Stewardship Contracting and the Tribal Forest Protection Act, both designed to encourage thinning and to make productive use of thinned materials. While “Forest” appears in the title of these new initiatives, the provisions are applicable to “Range Lands” as well.
The Public Lands Foundation supports the legislative and administrative changes contained in these new “Healthy Forests” laws and initiatives, and advocates that BLM move quickly to implement these new authorities. The PLF recommends that the BLM adopt the additional categorical exclusions that the Forest Service is using and that BLM include an element in their planning system entitled “Catastrophic Planning” to enable the agency to be better prepared to deal with catastrophic events such as wildfire. PLF also asks Congress to give serious consideration to expanding the principles in HFRA to public land areas outside Wildland Urban Interfaces (WUI), that are also suffering from deteriorating ecological health. PLF further recommends that local planning authorities give consideration to restrict building in WUI areas.
BACKGROUND
America's forests and rangelands are suffering a crisis of deteriorating ecological health caused by long-term climatic fluctuations and a century of well-intentioned but misguided management that modified the natural fire cycle and allowed forests and range lands to grow unnaturally dense. This has left the land vulnerable to disease, drought and extraordinarily destructive wildfires.
Wildfires burn over several million acres of public and private lands each year This affects hundreds of communities across the country, many firefighters are killed battling these fires, tens of thousands of people are often evacuated from their homes and thousands of structures are destroyed. Unnaturally extreme fires are just one consequence of the deteriorating forest and rangeland health that now affects many millions acres of public land.
The increasing movement of people into landscapes subject to wildland fire adds an important complication to wildland fire. In recent years primary residences, second homes and retirement communities have been built on private lands in and adjacent to wildlands exposed to wild fire. The local planning authorities should consider such hazards and the potential for lost of property and lives when reviewing building plans in the Wildland Urban Interfaces.
While federal, state and local land managers have attempted to restore forest and range land health and prevent these catastrophic wildfires, their efforts have been severely hampered by unnecessary and costly procedural delays that have prevented them from acting in a timely manner to protect communities and avert ecological crises.
Excessive analysis, legal suits, ineffective public involvement and management inefficiencies trap land managers in costly procedural quagmires, where a single project can take years to move forward and costing millions of dollars. Even routine forest health projects often proceed very slowly. In the meantime, communities, wildlife habitat and forests and rangelands suffer. Fires and insect infestations, which begin on public lands, often spread to private lands, causing significant property damage.
Federal land management laws, regulations and procedures should not be so complex that they prevent timely action to address ecological crises on public lands. Planning can consume 40% of the preparation time costing millions each year. Although much of this work is important, improving administrative procedures would expedite the work needed to improve ecosystems and protect communities from catastrophic wildfires.
In 2002, prior to one of the worst fire seasons the nation has ever experienced, the President established the Healthy Forests Initiative (HFI), which gave the BLM important administrative authority to work on restoration projects. Congress provided additional administrative tools needed to fully implement the HFI by passing the Healthy Forests Restoration Act (HFRA) on December 3, 2003. These two new national programs contain a comprehensive approach to providing the land managers with the ability to effectively reduce the accumulation of hazardous fuels and restore wildfire-damaged areas in a timely manner. In addition Congress also provided authority for Stewardship Contracting and the Tribal Forest Protection Act, both designed to encourage thinning and to make productive use of thinned materials. While “Forest” appears in the title of these new initiatives, the provisions are applicable to “Range Lands” as well.
Healthy Forests Restoration Act of 2003 (HFRA)
Recognizing this crisis of forest and rangeland health, the Healthy Forests Restoration Act of 2003 became law on December 3, 2003, containing the following legislative tools, which PLF believes, will provide land managers with the ability to effectively reduce the accumulation of hazardous fuels and restore healthy functioning ecosystems. These tools add to several administrative tools from the Healthy Forests Initiative announced in August 2002. While the word “forest” appears in the title of both these new authorities, their provisions apply equally to “rangelands”
The legislation provides the following general features
-Strengthens public participation in developing high priority forest and rangeland health projects.
-Reduces the complexity of environmental analysis.
-Provides a more effective appeals process encouraging early public participation in project planning and,
-Instructs courts, being asked to halt projects, to balance the short-term effects of implementing the projects against the harm from undue delay and the long-term benefits of a restored forest or rangeland.
More specifically the new law provisions applicable to BLM are
-Directs hazardous fuel reduction projects in wildland urban interface areas focusing on at-risk communities. The Act directs that no less than 50% of the funding is used in the Wild Urban Interface (WUI).
-Projects utilizing the new HFRA authority are prohibited in wilderness and wilderness study areas.
-Requires that hazardous fuels projects that utilize these authorities be designed to restore old growth stands.
-All HFRA projects must focus on cutting small diameter trees; thinning, strategic fuel breaks and prescribed fire as opposed to harvests that are strictly for commercial value.
-Priority is to be given to at-risk communities that have developed wildfire protection plans.
-When NEPA analysis is required the study needs to include only the proposed action and no action alternative for projects within 1.5 miles of an at-risk community or in the WUI as defined in the Community Wildfire Protection Plan (CWPP).
-Projects outside the 1.5 mile or CWPP defined boundary require only the Proposed Action, No Action and Action Alternative.
-Hazardous fuels projects are subject to judicial review only in US District Court and
injunctive relief is limited to 60 days subject to renewal.
-Encourages, through grants, the development of small-scale businesses to make use of biomass and small diameter material to help offset the costs to purchase the biomass.
-Supports the use of stewardship contracts as authorized by the 2003 Omnibus Appropriations Act, which allow an organization carrying out forest and rangeland health restoration work to use forest products (small-diameter tress and brush removed during thinning projects) in partial compensation for their work.
-Directs the courts to compare the short-term impacts of fire prevention projects with public interest in avoiding long-term harm to ecosystems.
Administrative actions under the Healthy Forests Initiative (HFI) include:
-Two new Categorical Exclusions are established on activities that in the past required either an environmental impact statement or environmental assessments.
-The first categorical exclusion is for hazardous fuels reduction including prescribed fire and mechanical methods such as crushing, piling, thinning, etc.
-The second category excluded from normal NEPA review is activities necessary for rehabilitation following wildfire such as reseeding, planning, fencing, and road repairs.
-The Forest Service has adopted an expanded list of categorical exclusions. Included in these new exclusions are, actions such as the falling and bucking and scaling sample trees or the removal of individual infested trees to control insects or disease.
-There are procedures to streamline Section 7 consultation by BLM with the Fish and Wildlife Service (FWS) and NOAA Fisheries under the Endangered Species Act (ESA) which provides for the BLM to make “not likely to adversely affect” determinations without consulting with or obtaining written concurrence from FWS or NOAA for actions that support the National Fire Plan and the Healthy Forests Initiative.
-The FWS and NOAA Fisheries, when consulting on fuels treatment projects under Section 7 of the ESA will evaluate and balance the long term benefits of fuel treatments, including restoring natural fire regimes and native vegetation, as well as the long term risks of catastrophic wild fire, against any short or long term effects on listed species.
-BLM has added regulations allowing the agency to make wildfire management decisions effective immediately, known as “Full Force and Effect” when BLM determines that vegetation, soil or other resources on the public lands are at substantial risk of wildfire due to drought, fuels build up or when public lands are at immediate risk of erosion or other damage due to wildfire.
-The Interior Board of Land Appeals is required to expedite reviews of forest health projects under appeal.
-Courts are encouraged to expedite review of projects “to the maximum extent possible” and limit injunctions to 60 days.
Stewardship Contracting Legislation
In December 2002, Congress enacted legislation, which allows BLM to enter into long-term (up to 10 years) contracts with small businesses, communities, and nonprofit organization to reduce wildfire risk and improved forest and rangeland health. These long term contracts provide the incentive to invest in equipment and facilities needed to productively use material from forest and rangeland thinning to make useful wood products or to produce biomass energy.
Tribal Forest Protection Act- July 22, 2004
The Tribal Forest Protection Act establishes a process for tribes to work with BLM and other federal agencies to perform hazardous fuel reduction and forest and rangeland health treatments on federal lands adjacent to or bordering tribal lands in order to prevent catastrophic wildfire or other threats. The legislation provides the authority for tribes to contract to do hazard reduction work on adjacent BLM lands.
PLF CONCLUSIONS AND RECOMMENDATIONS
The Public Lands Foundation supports the legislative and administrative changes contained in the Healthy Forests Initiative and Restoration Programs, Stewardship Contracting and the Tribal Forest Protection legislation and advocates that BLM move quickly to implement these new authorities and initiatives.
The PLF recommends that:
1. Since the management activities and environmental consequences of actions on BLM lands are the same or similar to National Forest lands, the BLM should incorporate into their procedures the same categorical exclusions that have been adopted by the Forest Service for implementing NEPA and Council on Environmental Quality regulations.
2. The BLM should incorporate into their planning system an element entitled “Catastrophic Planning” to enable the agency to be better prepared to deal with catastrophic events like wildfires that impact our public forest and rangelands. Emergency stabilization and rehabilitation efforts following a fire must begin as soon as possible to prevent serious losses of soil and ecological site deterioration. It should be the goal that the needed rehabilitation be started before the beginning of the next growing season. While it may not be possible to predict all of the rehabilitation a public land site may require following a fire, the anticipated rehabilitation requirements based on the ecological site(s) in the planning area can be examined in the planning document. With this analysis in the planning document, the rehabilitation of a burned area can begin quickly with a minimum environmental analysis and documentation.
3. The Congress should give serious consideration to expanding the principles of the HFRA to areas outside of Wildland Urban Interfaces (WUI) that are also suffering from deteriorating ecological health.
4. Local planning and zoning authorities consider restricting building in the Wildland Urban Interfaces (WUI).
The Public Lands Foundation will continue to work with Congress and BLM to advance additional common-sense efforts to protect communities and to restore forest and rangeland health. We seek efforts to improve the processes to ensure more timely decisions, efficiency and ways to reduce the risk of catastrophic wildfires, and implement tools that will assist land managers in restoring forest and rangeland health.
For further information on the topic of restoration following wildfires, we recommend our Policy Statement No 23, “Restoration and Recovery of Federal Forests After Catastrophic Wildfires”.
The Public Lands Foundation (PLF) is a 501 (C)(3) non-profit national conservation organization founded in 1987. PLF’s mission is to foster the proper use, protection and management of the Bureau of Land Management (BLM) administered lands. It is a fast-paced passionate, advocate organization keeping policy makers and the general public aware of what is happening to the public lands. All PLF members, most of who are retired former BLM employees, and its Board of Directors serve without compensation as volunteers.