Wildfire Protection in the 108th Congress

CRS Report for Congress
th
Wildfire Protection in the 108 Congress
Ross W. Gorte
Specialist in Natural Resources Policy
Resources, Science, and Industry Division
Summary
Many argue that the threat of severe wildfires has grown in recent years, because
of excessive forest fuels and an increasing number of homes in or near forests. In 2003,
President Bush proposed a Healthy Forests Initiative, with numerous regulatory changes
to expedite fuel reduction activities. The 108^th Congress enacted the Healthy Forests
Restoration Act of 2003 to provide an expedited process for fuel reduction activities and
other related programs, and the Southwest Forest Health and Wildfire Prevention Act
of 2004 to fund research and promote adaptive management in Ponderosa pine forests.
This report summarizes congressional action through 2004, and will not be updated.
Introduction
Wildfires, and efforts to reduce the damage they cause, have received increased
attention in recent years. The 2000 and 2002 fire seasons were, by most measures, among
the worst in the past 50 years. Many argue that the threat of severe wildfires has grown
in recent years, because many forests have unnaturally high fuel loads (e.g., dead trees and
dense undergrowth) and a historically unnatural mix of plant species (e.g., exotic invaders
or an understory of trees differing from the overstory). (See CRS Report RS20822,
Forest Ecosystem Health: An Overview.) These higher threats have raised concerns about
potential damage to homes that increasingly abut or are surrounded by forests — the
wildland-urban interface, or WUI. (See CRS Report RS21880, Wildfire Protection in the
Wildland-Urban Interface.) The threats have led to debates over fire protection efforts,
including questions about funding levels and fuel reduction treatments (e.g., thinning and
prescribed burning).
Congressional debates about wildfire protection have focused on federal lands —
especially the national forests administered by the USDA Forest Service (FS) and the
lands administered by the Bureau of Land Management (BLM) and other Department of
the Interior (DOI) agencies — since these lands are managed using federal appropriations
and federal land management is subject to congressional oversight. However, the threats
are not limited to federal lands, and many lands in the WUI are privately owned. This
report briefly summarizes federal wildfire funding, then discusses fuel reduction activities
and the related Administration actions and legislation in the 108^th Congress.

Congressional Research Service ˜ The Library of Congress

Wildfire Funding
The severe 2000 fire season led President Clinton to propose a new program of fire
protection and funding — the National Fire Plan. He requested an additional $1.8 billion
to supplement the $1.1 billion for FY2001 wildfire management requested before the fire
season began. Much of the additional funding was to pay for FY2000 firefighting, but
more funds also were also sought to treat fuels, restore burned areas, assist affected
communities, and prepare for future fire seasons. Congress largely enacted this proposal
in the Interior and Related Agencies Appropriations Act for FY2001 (P.L. 106-291).
President Bush’s subsequent budget requests have proposed continuing most of the
wildfire management programs expanded under President Clinton.
Congress appropriates funds for fire protection on federal lands, for assistance to
state and local governments in protecting other lands, and for research and other
programs. (See CRS Report RS21544, Wildfire Protection Funding.) These programs
are all considered part of the National Fire Plan. Table 1 shows National Fire Plan
funding (or the equivalent accounts) since FY1991. Total annual funding has risen from
about $500 million to more than $3 billion during this 15-year period. Funds generally
are included in the annual Interior appropriations acts, and often in laws appropriating
emergency supplemental funds. FS and BLM Wildfire Management accounts include
funds for fire suppression (fighting wildfires), for preparedness (equipment, training,
personnel, prevention, and detection), and for other operations (rehabilitation and fuel
treatment on federal lands, as well as research and other programs). In addition, FS and
BLM Wildfire Management funding supports fire research and programs to assist
landowners and communities affected by wildfires. The FS also administers fire
protection assistance programs (funded under the State and Private Forestry line item) that
provide financial and technical help to states for preventing and controlling fires and for
using prescribed fires — by state agencies, and through them, to other organizations.
Table 1. National Fire Plan (or Equivalent Account)
Funding, FY1991 — FY2005
(in millions of dollars, FY2004 and FY2005 as enacted)
Fiscal Funding Fi scal Funding Fiscal Funding
YearYearYear
1991 $486.6 1996 $738.2 2001 $2,889.8
1992 $503.8 1997 $1,400.1 2002 $2,269.1
1993 $810.4 1998 $1,134.8 2003 $3,195.6
1994 $1,033.7 1999 $1,082.2 2004 $3,293.9
1995 $1,085.0 2000 $1,626.1 2005 $3,009.5
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Fuel Reduction Activities
The presence of unnaturally high fuel loads (dense undergrowth and dead trees) in
many forests is widely presumed to be a significant factor in the apparently increasing
severity of recent fire seasons. Several tools exist for reducing fuel loads. Prescribed
burning — setting fires under prescribed weather and fuel conditions — can be effective
for converting small fuels (grasses, needles or leaves, twigs) to minerals and to carbon
dioxide and other gases, but prescribed fires produce large quantities of smoke and can
be difficult to control. Salvage and other timber harvesting can reduce biomass from
medium- and large-diameter trees, but the limbs and tree tops (slash) that are left after
logging increase fuel loads, at least until the slash has rotted or been burned or removed.
In addition, generally only sound trees of at least 6 inches in diameter can be sold for
wood products, and thus commercial sales may be ineffective for removing small-
diameter and low-quality trees. Thinning, especially precommercial thinning (cutting
trees with little or no commercial value), may be effective at reducing medium- and small-
diameter trees, but also leaves behind slash, and is usually quite expensive. These and
other tools and techniques commonly are used in combination to achieve the desired
goals, such as lower fuel loads and better water quality. 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 in many locations.
Many interests have concluded that lowering fuel loads will reduce the extent,
severity, and costs of wildfires. Critics of that conclusion contend that the recent severe
fire seasons are the result of prolonged drought, combined with lightning to start fires and
high winds to push them, and assert that lowering fuel loads may have little effect on the
extent and severity of wildfires. Critics also question the effectiveness of fuel treatment.
Research has shown that treatments (including, but not limited to, reducing fuels) can
protect individual structures and can reduce fire damages in certain ecosystems.
However, research documenting the effectiveness of broad-scale fuel reduction treatments
for reducing the extent, severity, and control costs of wildfires is generally lacking.
Many fuel reduction treatments, as with many activities on federal lands, are subject
to analyses of their environmental effects, public involvement in planning and decision-
making, and possible administrative and judicial challenges to agency decisions. The
National Environmental Policy Act of 1969 (NEPA; P.L. 91-190, 42 U.S.C. §§4321-
4347) requires federal agencies to assess the possible environmental effects of their
actions and to involve the public in their decisions. The FS is also required by §322 of
the 1993 Interior Appropriations Act (P.L. 102-381; this section is commonly known as
the Forest Service Appeals Reform Act) to allow administrative appeals of most plans and
decisions. The DOI agencies have different administrative review processes, but their
processes have not been as controversial as the FS appeals process. The agencies and
certain interest groups contend that these laws delay projects that are critical to protecting
both wildlands and communities from wildfire. Accordingly, they propose eliminating
or streamlining environmental studies and administrative and/or judicial review.
Opponents of such changes contend that the reports of delays are exaggerated and that
these laws are designed to protect the environment. They are also concerned that such
changes could increase timber harvest levels and road construction into roadless areas
while reducing public input into decision-making.

Administration Actions
The severe 2002 fire season prompted President Bush to propose a Healthy Forests
Initiative in August 2002, late in the 107^th Congress. The initiative included proposed
changes to federal forest management laws to accelerate procedures for reducing the fuel
levels on federal lands. Because such legislation was not enacted in the 107^th Congress,
the Bush Administration made two administrative changes to facilitate FS and DOI fuel
reduction. Both changes sought to expedite the authorized activities by reducing
environmental review and/or public involvement.
One change added two new categories of actions that could be excluded from NEPA
analysis and documentation: (1) fuel reduction and (2) post-fire rehabilitation activities
(68 Federal Register 33814, June 5, 2003). Categorically excluded fuel reduction is
limited to 1,000 acres if by mechanical means (e.g., thinning) and to 4,500 acres if by
prescribed burning, and is limited to the WUI or to certain hazardous condition classes
and historic fire regimes. The fuel reduction exclusion may be used for projects that
include timber sales, if fuel reduction is the primary purpose. Post-fire rehabilitation
projects are limited to 4,200 acres and must be completed within three years after the
wildfire. These categorical exclusions cannot be used in wilderness, or in wilderness
study areas if doing so would impair the suitability of those areas for preservation as
wilderness, or if “extraordinary circumstances” exist and the managers determine that the
effects might be significant. Also, fuel reduction and rehabilitation projects cannot be
categorically excluded if they use herbicides or pesticides or involve new permanent road
construction.
The second change revised the FS administrative appeals process (68 Federal
Register 33582, June 4, 2003). Among the many modifications is a clarification that
some emergency actions may be implemented immediately and others may be
implemented after complying with notification requirements. The change expands
emergency situations to include those “that would result in substantial loss of economic
value to the Government if implementation of the proposed action were delayed,” while
deleting examples of emergency situations. It also would exclude public notice and
opportunity for the public to comment on or to appeal actions categorically excluded from
NEPA, such as the fuel reduction activities discussed above.
These changes are best read in conjunction with other final and proposed regulatory
changes to understand the potential consequences for fuel reduction, public involvement,
and environmental impacts. New procedures for addressing categorical exclusions when
extraordinary circumstances are present were finalized on August 23, 2002 (67 Federal
Register 54622); new categorical exclusions for small FS timber harvesting projects were
finalized on July 29, 2003 (68 Federal Register 44598); and new FS forest planning
regulations were issued on January 5, 2005 (70 Federal Register 1023). The total impact
of these actions seems to be greater discretion for the FS, and to a lesser extent for the
BLM, to act without environmental studies and with fewer opportunities for the public
to comment on or to administratively appeal those actions.

Legislation in the 108^th Congress
Many bills were introduced in the 108^th Congress to enhance wildfire protection.
Two that were enacted are discussed below in more detail. Most of the bills would have
provided expedited procedures for fuel reduction projects on federal lands. Although they
have significant differences, these bills generally would have authorized or directed
categorical exclusions from NEPA for fuel reduction projects on certain lands and under
certain conditions over five years, with priority generally on the WUI and forest lands
supporting municipal water supply systems. Various bills also contained ancillary
provisions, such as authorizing insect infestation assessments, biomass utilization grants,
forest health inventory and monitoring, emergency biomass fuel reduction grants to
private landowners, priority for assistance to communities with proactive steps to reduce
fire risks, funding for wildfire risk reduction and burned area restoration on nonfederal
lands, watershed forestry assistance, federal compensation for private forest reserves, and
an economic assistance program for forest resource dependent communities.
Other wildfire bills also were introduced. Some focused on relatively narrow aspects
of wildfire protection (e.g., firefighting equipment availability, firefighter compensation,
landowner compensation for fire damages). One bill, the Forest Restoration and Fire Risk
Reduction Act (H.R. 1042), would have authorized a cooperative program for wildfire
hazard reduction and forest restoration on private and associated federal lands, with
special procedures for projects meeting specific conditions. However, only the two bills
discussed below were enacted.
The Healthy Forests Restoration Act of 2003. Attention on wildfire^th
protection in the 108 Congress focused mostly on the Healthy Forests Restoration Act
of 2003 (H.R. 1904). The bill, as passed by the House, contained many provisions to
expedite authorized fuel reduction projects on FS and BLM lands, as well as several other
titles for related programs. The version of H.R. 1904 reported by the Senate Committee
on Agriculture, Nutrition, and Forestry (S.Rept.108-121) was quite similar, but with
modifications in many of the details. After the bill was reported, the committee
developed a compromise version that was offered as a substitute on the Senate floor; the
new version passed the Senate on October 30, 2003. It also was generally similar to the
House-passed bill, but with many differences in the details and with many additional
sections. An agreement was reached resolving differences between the House- and
Senate-passed versions, and the conference report (H.Rept. 108-386) was agreed to in the
House and the Senate on November 21. The President signed P.L. 108-148 on December

3, 2003.

Title I of the law addresses hazardous fuel reduction on federal lands. It does not
authorize any fuel reduction activities not previously authorized. Instead, it authorizes a
new alternative process for reducing fuels on up to 20 million acres of national forests or
BLM lands in or near the WUI and municipal water supply systems, as well as certain
endangered species habitats and areas affected by wind or ice storms or by insect or
disease epidemics that threaten ecological health or natural resources. Priority is directed
to protecting “at-risk communities” and municipal watersheds. Authorized projects must
be consistent with land management plans. They generally are to focus on small trees,
thinning, fuel breaks, and prescribed burning while retaining large trees and maintaining
old growth stands, but are prohibited on certain lands, such as wilderness areas. The law
authorizes $760 million annually for fuel reduction on federal lands, including projects

authorized under the new law, any other fuel reduction activities, and grants to states. The
law does not allocate funds among authorized projects, other projects, and grants to states,
or among the agencies. Previously, the authorization for fuel reduction projects was not
specified in law.
For authorized projects, the FS or BLM must prepare NEPA documents, but are
allowed to analyze a very limited number of alternatives. The public can be involved
through scoping, collaboration, and multi-party monitoring of project impacts; the public
also must be given a chance to comment on proposed projects. For FS projects, the
agency is to develop a new pre-decisional review process to supplant the existing
administrative appeals process, and administrative reviews must be “exhausted” before
litigation is allowed. Lawsuits must be filed in the district court for the area where the
project is proposed, and courts are encouraged to review cases expeditiously. Preliminary
injunctions are limited to 60 days, but can be renewed, and courts are directed to balance
short- and long-term impacts of action and of inaction.
P.L. 104-148 contains five other titles as well. Title II expands biomass research,
authorizes a new biomass rural revitalization program, and authorizes grants for biomass
use. Title III establishes a watershed forestry assistance program with cost-sharing
assistance to landowners and financial and technical assistance to states and tribal
governments to protect water quality through forestry practices. Title IV authorizes data
collection on forest-damaging insects and “applied silvicultural assessments” (treatments
for research purposes) of up to 1,000 acres each (250,000 acres total) which are
categorically excluded from NEPA, but with peer review and public notice and comment
on each project. Title V authorizes a program to pay willing private landowners to protect
or restore their lands as habitat for endangered species using 10-year agreements or 30-
year or long-term (up to 99-year) easements. Finally, Title VI authorizes an “early
warning system” for environmental threats primarily to eastern U.S. forests.
The Southwest Forest Health and Wildfire Prevention Act of 2004. The^th
108 Congress also enacted the Southwest Forest Health and Wildfire Prevention Act of
2004 (P.L. 108-317) almost a year later, on October 5, 2004. The act directs the Secretary
of Agriculture to establish three “Institutes to promote the use of adaptive ecosystem
management to reduce the risk of wildfires, and restore the health of forest and woodland
ecosystems, in the interior West,” defined as Arizona, Colorado, Idaho, Nevada, New
Mexico, and Utah. The institutes are to be located at Northern Arizona University, at
New Mexico Highlands University, and in the state of Colorado. Each institute is to
cooperate with federal land management agencies in researching, promoting, and
monitoring “fuel reduction treatments to reduce the risk of severe wildfires and improve
the health of dry forest and woodland ecosystems in the interior West,” defined as
ponderosa pine and associated ecological types. Each institute is also to produce a “peer-
reviewed” annual report. The act authorizes annual appropriations of $15 million for the
institutes, which may not be used for constructing facilities.