In the 2018 Omnibus Appropriations Act, explained

Congress enacted a fire funding fix that will stop the Forest Service practice of “borrowing” funding from Forest Service programs to use towards fighting wildfire. KS Wild is generally supportive of this approach, but several other provisions in this bill would impact our national forests. Check out the analysis of the bill from our friends at The Wilderness Society.

To:         Interested Persons
From:    Mike Anderson, The Wilderness Society
Re:         Forest Management Provisions of 2018 Omnibus Appropriations Act
Date:     March 22, 2018

Following is a quick summary and analysis of Forest Management provisions that are included with the Fire Funding Fix in the FY 2018 Omnibus Appropriations Act, which was released on March 21.  The Forest Management provisions are contained in Division O, Title II of the Omnibus bill, on pages 1794-1828.

Section 202 creates a legislative Categorical Exclusion (CE) for hazardous fuels reduction projects on national forest lands.  The hazardous fuels CE is generally modeled after the insect and disease CE in the 2014 Farm Bill. Like the 2014 Farm Bill’s insect and disease CE, the hazardous fuels CE would –

·      Be limited to projects up to 3,000 acres in size

·      Maximize retention of old growth and large trees

·      Consider best available science to maintain and restore ecological integrity

·      Be developed collaboratively or through a Resource Advisory Committee

·      Not include permanent road construction

·      Require decommissioning of temporary roads

·      Be located within state-identified insect and disease treatment areas

·      Be located outside wilderness and other legally protected areas

·      Require public notice and scoping.

In addition, the bill requires the Forest Service to apply its “extraordinary circumstances” criteria to determine whether use of the hazardous fuels CE is permissible.  Projects would not be subject to administrative objection, but normal judicial review would apply. [1]

Section 203 limits the number of alternatives that must be considered during environmental analysis of projects that include fuel breaks or firebreaks.  The bill amends the Healthy Forest Restoration Act of 2003 (HFRA) to include fuel breaks and firebreaks in the definition of “authorized hazardous fuel reduction project.”  Under HFRA, the Forest Service is normally required to consider only one alternative to the agency’s proposed action (along with a no-action alternative). HFRA’s restrictions on cutting of old-growth and large trees presumably would apply to the fuel breaks and firebreaks.  HFRA’s expedited judicial review requirements would also apply.

Sections 204 and 205 address the Forest Service and BLM’s potential liability for cancelling stewardship contracts. The bill requires the agency to give Congress advance notice if it intends to enter into a long-term contract that includes a cancellation ceiling in excess of $25 million.

Section 207 authorizes the Forest Service and BLM to issue stewardship contracts with a term of up to 20 years in fire-prone areas, doubling the 10-year limit on stewardship contracts under current law. The bill would allow agencies to give special preference to contract bids that promote the use of cross-laminated timber and other innovative forest products.

Sections 208 and 209 address the “Cottonwood” issue.  The bill effectively overrides a decision by the Ninth Circuit Court of Appeals that required the Forest Service to re-initiate Endangered Species Act consultation on its land management plans after the U.S. Fish and Wildlife Service designated critical habitat for the Canada lynx.  Section 108 exempts the Forest Service from having to consult on its management plans when a species is listed, or critical habitat is designated, under the ESA. However -- starting no sooner than 2023 -- the exemption does not apply if a plan was adopted more than 15 years ago. In addition, the Forest Service is still required to consult on individual projects that implement plans and on plan amendments or revisions.  Section 209 provides a similar Cottonwood/ESA exemption for the BLM’s land management plans governing the O&C lands in Western Oregon; however, it does not include the exception for plans more than 15 years old.

Section 210 requires the Forest Service to produce maps showing wildfire hazard severity and to share the information with at-risk communities.

Section 211 establishes a planning and notification process to reduce fire risk and improve management of electricity transmission corridors across national forest lands.  The bill would give utility companies emergency authority to remove hazard trees without prior notification of the Forest Service. It would also set a $500,000 upper limit for 10 years on the amount of strict liability damages that the agency could impose on utilities for activities that are consistent with an approved utility corridor plan.  

Section 212 expands the Good Neighbor Authority provided by the 2014 Farm Bill by allowing state agencies to repair or reconstruct roads as part of a GNA project, and to decommission roads that the Forest Service has determined to be unneeded through its travel analysis process.

Section 302 reauthorizes and updates the Federal Land Transaction Facilitation Act to improve recreational access to federal lands through the sale of surplus BLM lands and purchase of important inholdings.

Section 401 extends the Secure Rural Schools county payments program for two more years.

[1] The bill exempts the hazardous fuels CE projects from the administrative objection process of the Healthy Forest Restoration Act, but it does not apply the judicial review provisions of HFRA.