19–006

108TH CONGRESS REPT. 108–96 " HOUSE OF REPRESENTATIVES ! 1st Session Part 1

HEALTHY FORESTS RESTORATION ACT OF 2003

MAY 9, 2003.—Ordered to be printed 

Mr. GOODLATTE, from the Committee on Agriculture, 

submitted the following 

R E P O R T 

together with 

DISSENTING VIEWS 

[To accompany H.R. 1904] 

[Including cost estimate of the Congressional Budget Office]

The Committee on Agriculture, to whom was referred the bill 

(H.R. 1904) to improve the capacity of the Secretary of Agriculture 

and the Secretary of the Interior to plan and conduct hazardous 

fuels reduction projects on National Forest System lands and Bureau of Land Management lands aimed at protecting communities, 

watersheds, and certain other at-risk lands from catastrophic wildfire, to enhance efforts to protect watersheds and address threats 

to forest and rangeland health, including catastrophic wildfire, 

across the landscape, and for other purposes, having considered the 

same, report favorably thereon without amendment and recommend that the bill do pass. 

BRIEF EXPLANATION

H.R. 1904 contains six titles of authorities giving federal agencies 

greater opportunity to undertake a variety of land management activities designed to reduce the risk to U.S. forest and rangelands 

from catastrophic wildfire, disease and insect infestation. 

Title I creates procedures allowing federal land managers to 

carry out hazardous fuel reduction projects on certain federal forest 

and rangelands. Title II authorizes two grants programs to promote 

the removal and utilization of forest biomass for energy and valueadded products. Title III establishes a new watershed forestry assistance program designed to maintain and improve water quality 

in forested landscapes. Title IV directs the Forest Service to conVerDate Jan 31 2003 01:48 May 13, 2003 Jkt 019006 PO 00000 Frm 00001 Fmt 6659 Sfmt 6602 E:\HR\OC\HR096P1.XXX HR096P1
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duct systematic information gathering on certain insect types that 

have caused large-scale damage along with early detection programs and treatments to prevent the spread of infestation. Title V 

authorizes a Healthy Forest Reserve Program to voluntarily protect 

private land ecosystems that are critical to the recovery of threatened or endangered species. Finally, Title VI directs the Secretary 

of Agriculture to develop a comprehensive program to inventory 

and monitor forest stands for the purpose of maintaining forest 

health. 

PURPOSE AND NEED

Forest and rangeland ecosystems in the United States are being 

decimated at an alarming rate by large scale catastrophic wildfire 

and massive outbreaks of disease, insect infestation and invasive 

species. Federal foresters estimate that an astounding 190 million 

acres of land managed by the Secretary of Agriculture and the Secretary of Interior are at an unnatural height of risk to catastrophic 

wildfire. Of that, over seventy million acres are at extreme risk to

catastrophic wildfire in the immediate future. The summers of 

2000 and 2002 were the two largest and most destructive fire seasons in the last fifty years. And, at this very moment, we are days 

away from the beginning of the 2003 fire season where communities in much of the interior West, south/central Alaska, portions 

of California, western Great Lake states and northern Maine are 

bracing for an above normal fire season due to dangerously dense 

forest fuel conditions, persistent drought, limited winter snowfall 

and early snow melts. 

For the past hundred years, land managers have aggressively 

moved to suppress wildland fire in all forms, including nature’s 

periodic small scale burnings that restore and rejuvenate forest 

ecosystems. The unintended result of this policy is a decades-long 

build up of forest fuel, woody biomass and dense underbrush. In 

some areas, tree density has increased from fifty trees per acre to 

as many as five hundred trees per acre, according to the Forest 

Service and fire ecologists. These unnaturally dense forests are 

only the next lightning strike or escaped camp fire away from exploding into a large-scale wildfire. 

Forest ecologists, professional land managers and many environmental groups agree—the exploding incidence of catastrophic wildfire and disease and insect infestation pose a massive threat to the 

health, diversity and sustainability of America’s forests. Colorado’s 

Hayman Fire provides a startling example of the kind of enduring 

environmental degradation that unnatural wildfire can cause. That 

fire dumped colossal loads of mud and soot into Denver’s largest 

supply of drinking water, annihilated several thousand acres of cathedral-like Ponderosa Pine old growth, pushed one globally-rare 

species to the brink of extinction, and created the worst air pollution conditions in Denver’s recorded history. Other massive fires 

during the 2002 fire season claimed a similar environmental toll. 

Oregon’s record-setting Biscuit fire turned 80,000 acres of prime 

old growth habitat for the endangered northern spotted owl into a 

sterile blackened wasteland. Similarly, the Rodeo-Chediski fire in 

Arizona ravaged over 100,000 acres of habitat, including twenty 

sensitive nesting sights, for the endangered Mexican Spotted Owl. 

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But, such consequences are hardly limited to the natural resource environment. In 2002, hundreds of homes and other structures were destroyed, and thousands more were evacuated. Twenty-three firefighters lost their lives. The American taxpayer spent 

in excess of $1.5 billion to contain the blazes of 2002. And, rural 

economies that rely on tourism suffered significant financial losses. 

Using 21st century techniques, technology and know-how, professional land managers can restore America’s cherished landscapes 

back to a healthy, natural condition. Through the use of environmentally-smart thinning, prescribed burns, and other scientifically 

validated management practices, overstocked forests can be returned to a natural balance, and the risks of catastrophic wildfire, 

insect and disease infestations reduced. One scientific assessment 

found that the only available means of protecting the nation’s forest ecosystems from the ravages of wildfire is the prompt implementation of these management techniques on a large, landscape 

scale. 

Today, 190 million acres of federal forest and rangeland are 

threatened to be engulfed by catastrophic wildfire. Yet, estimates 

suggest that federal land managers will treat only about 2.5 million acres each year because of the extraordinarily lengthy procedural and documentation requirements that federal land managers 

face. This inability to act is unconscionable. The premise of the 

Healthy Forests Restoration Act is simple and clear: Given the 

massive threat that catastrophic wildfire, disease and insect infestation pose to the health of our pristine forest ecosystems, species 

habitat, air and water quality, and the safety of thousands of communities, it is unacceptable that it takes federal land managers upwards of several years to maneuver forest health projects through 

a maze of procedural and analytical requirements that do little to 

inform constructive decision-making. 

During Committee consideration of H.R., 1904, concerns were 

raised regarding the impact of the bill on the conservation or anadromous fish and new road construction. It is the Committee’s intent 

that nothing in this bill should affect the level of analysis required 

for the protection of anadromous fish through the establishment of 

buffers, or the planning and construction of a road which will comply with all applicable laws regarding fish passages and sedimentation. This intent is reflected in correspondence, included in this report, between the Department of Agriculture and Congressman 

Mike Thompson of California.

U.S. DEPARTMENT OF AGRICULTURE, 

OFFICE OF THE SECRETARY, 

Washington, DC, May 8, 2003. 

Hon. MIKE THOMPSON, 

Cannon House Office Building, 

Washington, DC. 

DEAR CONGRESSMAN THOMPSON: Enclosed please find USDA’s response to questions submitted on May 6, 2003 regarding the April 

30, 2003 hearing on the Healthy Forests Initiative. Thank you for 

your questions and your willingness to take proactive steps to protect our forests, watersheds and communities from catastrophic 

fires. You also requested language addressing changes to H.R. 

1904. This is attached. 

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If you have any further questions, please contact Tina J. Terrell, 

Legislative Affairs Staff. 

Sincerely, 

MARK REY, 

Under Secretary, 

Natural Resources and Environment. 

Enclosures. 

HEARING ON THE HEALTHY FORESTS INITIATIVE, HOUSE OF

REPRESENTATIVES, COMMITTEE ON AGRICULTURE

1. Are there safeguards in place to help prevent sedimentation of 

streams throughout the thinning projects? This includes buffer 

zones along Class 1, 2 and 3 streams as well as upslope sedimentation protections. This is of great importance to the communities in 

the Pacific Northwest where nearly every community is affected by 

threatened or endangered anadromous fish. 

Answer: In implementing projects, including thinning projects, 

under the Health Forests Initiative, units will be required to plan 

and conduct hazardous fuels reduction projects in a manner consistent with the land and resource management plan. Each forest 

plan identifies standards and guidelines for protecting riparian 

areas. It is through the proper application, monitoring and updating of these State certified and United States Environmental Protection Agency approved practices and procedures that the Forest 

Service will meet its obligations for compliance with water quality 

standards. 

National Forests in California must adhere to very strict standards and guidelines that have been incorporated into land and resource management plans from the Northwest Forest Plan, the Sierra Nevada Framework, and other large-scale management plans 

developed to protect threatened and endangered species. Riparian 

reserves that have been designated in the Northwest Forest Plan 

would be protected under the Aquatic Conservation Strategy, as 

standards and guidelines were developed that prohibit and regulate 

activities in these areas. These riparian reserves include those portions of a watershed directly coupled to streams and rivers, that is, 

the portions of a watershed required for maintaining hydrologic, 

geomorphic, and ecologic processes. The widths or buffers of a riparian reserve is identified in the Northwest Forest Plan and applies to all watersheds until a watershed analysis is completed or 

a site-specific analysis is conducted. 

When implementing hazardous fuels reduction projects on national forests, Best Management Practices (BMP’s) would be implemented to minimize impacts on the watershed, and monitoring 

would occur to evaluate the implementation and effectiveness of 

the BMP’s.

2. Thinning projects may require the building of additional roads 

on either public or private lands. Will considerations be made for 

fish passage and stream sedimentation reduction for all new roads 

constructed under this legislation? 

Answer: Yes, consideration will be given to maintain or develop 

fish passages. All hazardous fuels reduction projects must be conducted in a manner that is consistent with the land and resource 

management plan. As stipulated in the answer to #1, standards 

and guidelines will be followed, including those guidelines that 

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refer to protecting riparian areas and reducing impacts to streams 

from sedimentation. Roads that are built to access hazardous fuels 

reduction projects will either be used in future years, or be decommissioned, and the area re-vegetated and restored. 

If a road is to be used in future years, the unit will have to include this road in their Roads Analysis Process, which is required 

by the January 2001 Forest Service Road Management Policy. This 

policy provides a method to evaluate the amount of road that a national forest can sustain indefinitely in full compliance with environmental and safety laws at the current maintenance funding levels. Roads analysis is required as part of the Forest Land Management Plan revision process. 

In protecting fish passage on existing roads, the agency has completed surveys of most culverts in Region 10 (Alaska), Region 6 

(Oregon and Washington), Region 4 (Utah and southern Idaho) and 

portions of Region 1 (Montana and northern Idaho). Surveys are 

being conducted in other Regions, including California. We are currently addressing known passage problems on a priority basis in 

key watersheds. We are identifying sites in coordination with our 

federal, state and tribal partners and are seeking to maximize the 

return on our investments by selecting sites that will provide the 

greatest increased access to priority habitat with the least investment. 

3. Will environmental and stream protection laws apply to activities conducted under Title II—Biomass? 

Answer: Yes. When a unit identifies a biomass-thinning projects 

as a hazardous fuels reduction project, an environmental analysis 

will be conducted. The level and intensity of the analysis will depend on the scope and location of the individual project. All hazardous fuels reduction projects shall be planned and conducted in 

a manner consistent with the relevant land and resource management plan and all existing environmental laws and regulations.

4. There are documented concerns from firefighters and foresters 

that the focus for fuels reduction should be within the urban interface. Although the bill places a priority on these areas, shouldn’t 

we devote a high percentage of the reduction activities within these 

areas to protect communities and watershed? 

Answer: For FY 2001 and FY 2002, the Hazardous Fuel program 

accomplishments included treatment of over 2.6 million acres, of 

which nearly 1.4 million acres, or 52 percent, were in the wildland/

urban interface. 

A Memorandum of Understanding for the development of a collaborative fuels treatment program among the Forest Service, the 

Bureau of Land Management, the U.S. Fish and Wildlife Service, 

the National Park Service, the National Association of State Foresters, and the National Association of Counties was signed in January 2003. The purpose of this Memorandum of Understanding is 

to provide the framework of a process for the signers to collaborate 

on the annual selection of a fuels treatment program of work within their respective jurisdictions to provide for community protection 

and enhance the health of forests and rangelands. We believe this 

arrangement will result in the best combination of fuels treatments 

across all jurisdictions in both the wildland/urban interface and the 

non-wildland/urban interface areas. 

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5. Why doesn’t the Secretary need to make environmental concessions in areas that have documented insect infestations and how 

does the Secretary consider what is considered an invasive threat? 

Answer: The priority is for areas that should be documented insect infestations, to implement vegetation projects quickly to ensure an infestation is eradicated, and restoration and rehabilitation 

can occur. 

The National Invasive Species Council, of which the Department 

is a member, defines an invasive species as (1) non-native (or alien) 

to the ecosystem under consideration and (2) whose introduction 

causes or is likely to cause economic or environmental harm or 

harm to human health. Non-invasive species that cause or may 

cause significant negative impacts and do not provide an equivalent benefit to society are a significant threat. 

From 1997–2001, tree mortality caused by bark beetles was detected by aerial surveys on approximately 14 million acres of 

forestland. Overall, about 70 million acres of all forested lands are 

at risk to future mortality from insects and diseases; 33 of the 70 

million acres are on NFS forestland (based on the current Insect 

and Disease Risk Map).

A separate analysis shows nearly 73 million acres of NFS 

forestland are prone to catastrophic fire based on current condition 

and departure from historic fire regimes (Fire Regimes 1 & 2 and 

Condition Classes 2 & 3). Based on these two maps, approximately 

9.5 million acres are at risk to both pests caused mortality and fire. 

Invasive species of insects, diseases and plants continue to impact our native ecosystems by causing mortality to, or displacement 

of, native vegetation. Invasive species also negatively impact federally listed endangered species. The National Fire Plan has enhanced our efforts to prevent and suppress insect and disease outbreaks. Insect and disease prevention and suppression treatments 

were completed on 1.6 million acres of forest lands in 2002. 

Finally, you inquired about the procedures for amending or revising the standards and guidelines in land and resource management 

plans. As indicated in my answers to question #1 and #2, a hazardous fuels reduction project must be consistent with a land and 

resource management plans. All national forests must complete a 

land and resource management plan as stated in the National Forest Management Act of 1976 (NFMA). NFMA also requires Land 

and Resources Management Plans (LRMPs) be revised every 15 

years. This requirement recognizes that LRMPs need to be examined periodically to ensure management assumptions and guidance 

is correct, and new scientific information becomes available. The 

primary process for ensuring that planning direction is kept current is the amendment process. 

A forest plan may also be revised whenever the Forest Supervisor determines that conditions or demands in the area covered by 

the plan have changed significantly or when changes in Resource 

Planning Act policies, goals, or objectives would have a significant 

effect on forest level programs. During the monitoring and evaluation process, an agency’s interdisciplinary team may recommend a 

revision of the forest plan at any time. Revisions are not effective 

until considered and approved in accordance with the requirements 

for the development and approval of a forest plan. The Forest Supervisor shall review the conditions on the land covered by the plan 

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at least every 5 years to determine whether conditions or demands 

of the public have changed significantly. All amendments and revisions are subject to public notice and comment, environmental review under the National Environmental Policy Act, and administrative appeal.

SECTION-BY-SECTION ANALYSIS

Sec. 1. Short title; table of contents 

Gives the Act a short title of ‘‘Healthy Forests Restoration Act 

of 2003.’’ Lists table of contents. 

Sec. 2. Purpose 

Lists the purposes of this Act, including: to reduce the risks of 

damage to communities, municipal water supplies and federal 

lands from catastrophic wildfire; to authorize grant programs to 

improve the commercial value of forest biomass; to enhance efforts 

to protect watersheds and address threats to forest and rangeland 

health; to promote systematic information gathering to address the 

impacts of insect infestation on forest and rangeland health; to improve the capacity to detect insect and disease infestations at an 

early stage; and to benefit threatened and endangered species, improve biological diversity and enhance carbon sequestration. 

TITLE I—FOREST HEALTH ON NATIONAL FORESTS AND 

PUBLIC LANDS 

Sec. 101. Definitions 

Defines the terms: authorized hazardous fuels reduction project, 

condition class 2, condition class 3, day, decision document, federal 

lands, hazardous fuels reduction project, implementation plan, 

interface community and intermix community, municipal water 

supply system, Secretary concerned, threatened and endangered 

species habitat. 

Sec. 102. Authorized hazardous fuels reduction projects 

Allows for authorized hazardous fuels reduction projects on federal lands that: (1) are located in an interface or intermix community, (2) are located in proximity to such communities, (3) are condition class 3 or 2 and located in proximity to a municipal water 

supply (or a perennial stream, including rivers and other permanent natural flowing water sources feeding a municipal water supply), (4) are condition class 3 or 2 and have been identified as an 

area where windthrow, blowdown, the existence or threat of disease or insect infestation poses a threat to forest or rangeland 

health, or (5) contain threatened and endangered species. 

Requires projects to be planned and conducted in a manner consistent with land and resource management plans or an applicable 

land use plan. 

Limits the acreage available for authorized hazardous fuels reduction projects to 20,000,000 acres. 

Gives the Secretary concerned sole discretion to plan and conduct 

an authorized project within certain parameters, including tree diameter size, tree density and species composition. 

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Prohibits the Secretary concerned from conducting an authorized 

hazardous fuels reduction project on the following federal lands: a 

component of the National Wilderness Preservation System, federal 

lands where the removal of vegetation is prohibited or restricted by 

a Congress or a presidential proclamation, or wilderness study 

areas. 

Prohibits the construction of any new permanent roads in any 

inventoried roadless area. 

Sec. 103. Prioritization for communities and watersheds 

Gives priority to authorized hazardous fuel reduction projects 

which provide for protection of communities and watersheds. 

Sec. 104. Environmental analysis 

Gives the Forest Service and Bureau of Land Management discretionary authority to limit the analysis ordinarily required under 

the National Environmental Policy Act (‘‘NEPA’’) to the proposed 

agency action, meaning the agencies would not be required to analyze and describe a number of different alternatives to the preferred course. 

Codifies the public participation requirements set out in the 

Western Governors Association 10-year wildfire management strategy for use in conducting hazardous fuels reduction projects. 

Directs the Secretary concerned to sign a decision document for 

each authorized hazardous fuels reduction project and provide notice of that document. 

Requires the Secretary concerned to monitor the implementation 

of authorized hazardous fuels reduction project. 

Sec. 105. Special Forest Service administrative review process 

Directs the Secretary of Agriculture to establish an administrative review process for the Forest Service within 90 days after the 

enactment of this Act that will serve as the sole means by which 

a person can seek administrative redress regarding an authorized 

hazardous fuels reduction project. 

Limits the administrative process to be developed to persons who 

have submitted specific and substantive written comments during 

the preparation stage of the project. 

Clarifies that the Appeals Reform Act, section 322 of P.L. 102–

381, 16 U.S.C. 1612 note, does not apply to an authorized hazardous fuels reduction project. 

Sec. 106. Special requirements regarding judicial review of authorized hazardous fuels reduction projects

Establishes a time limit for filing a challenge to an authorized 

hazardous fuels reduction project to 15 days within notice of the 

final agency action. 

Limits the duration of any preliminary injunction granted on an 

authorized project to 45 days subject to renewal. 

Requires a court in which an action or an appeal is filed to 

render a final determination within 100 days of when the complaint or appeal is filed. 

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Sec. 107. Standard for injunctive relief for agency action to restore 

fire-adapted forest or rangeland ecosystems 

Directs the court, in considering a request for injunctive relief, to 

consider the public interest in avoiding long-term harm to the ecosystem. 

Directs the court to give deference to any agency finding that the 

balance of harm and the public interest in avoiding the short-term 

effects of the agency action is outweighed by the public interest in 

avoiding long-term harm to the ecosystem. 

Sec. 108. Rules of construction 

Clarifies that nothing in this title shall be construed to affect or 

limit the use of other authorities by the Secretary concerned to 

plan or conduct a hazardous fuels reduction project on federal 

lands. 

Clarifies that nothing in this title shall be construed to prejudice 

the consideration or disposition of any legal action concerning the 

Roadless Area Conservation Rule. 

TITLE II—BIOMASS 

Sec. 201. Findings 

Lists Congressional findings as to the need for forest management activities to be conducted, including the removal of biomass. 

Sec. 202. Definitions 

Defines the terms: biomass, Indian tribe, person, preferred community, Secretary concerned. 

Sec. 203. Grants to improve the commercial value of forest biomass 

for electric energy, useful heat, transportation fuels, and petroleum-based product substitutes 

Establishes a biomass commercial use grant program to extend 

assistance to any person who owns or operates a facility that uses 

biomass as a raw material to produce energy. 

Establishes a value-added grant program to extend assistance to 

persons to offset the cost of projects to add value to biomass. 

Authorizes $25 million for each of the fiscal years 2004 through 

2008. 

Sec. 204. Reporting requirement 

Requires the Secretary of Agriculture, in consultation with the 

Secretary of Interior, to submit a report describing the results of 

the grant programs by October 1, 2010 to: House Agriculture Committee, Resources Committee, Senate Agriculture Committee, Senate Energy and Natural Resources Committee. 

TITLE III—WATERSHED FORESTRY ASSISTANCE 

Sec. 301. Findings and purpose 

Lists Congressional findings relating to the need for protection of 

watershed health in forest management practices. Describes the 

purpose of this title. 

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Sec. 302. Establishment of Watershed Forestry Assistance Program 

Authorizes the Secretary, acting through the Forest Service, to 

provide technical, financial and related assistance to private forest 

landowners through the State foresters and equivalent state officials. Focuses assistance to the purpose of expanding state forest 

stewardship capacities and activities through best management 

practices to improve watershed health. 

Includes a technical assistance program to protect water quality 

and a watershed cost-share program. Directs the Secretary to make 

awards under the cost-share program to communities, non-profit 

groups (which would include conservation districts) and non-industrial private forest landowners for watershed forestry projects. 

Authorizes $15 million for each of the fiscal years 2004 through 

2008. Directs the Secretary to devote at least 75 percent of the 

funds appropriated in a fiscal year to the cost-share component. 

TITLE IV— ACCELERATED INFORMATION GATHERING TO 

ADDRESS INSECT INFESTATIONS 

Sec. 401. Definitions, findings, and purpose 

Defines the terms: applied silvicultural assessment, federal 

lands, Secretary concerned, 1890 institutions. 

Lists Congressional findings as to insect infestation, resulting 

damage and need for assessment and treatment. 

States the purposes of this title. 

Sec. 402. Accelerated information gathering regarding bark beetles, 

including southern pine beetles, hemlock wooly adelgids, emerald ash borers, red oak borers and white oak borers 

Directs the Department of Agriculture, acting through the Forest 

Service and U.S. Geological Survey, to conduct an accelerated program to plan, conduct, and promote systematic information gathering on certain insect types that have caused large-scale damage 

to forest ecosystems. 

Directs the Secretary to assist land managers in the development 

of treatments and strategies to improve forest health and reduce 

the susceptibility of forest ecosystems to future infestations. 

Directs the Secretary to disseminate the results of such information gathering, treatments and strategies. 

Directs the Secretary to establish and carry out the program in 

cooperation with scientists from universities and forestry schools, 

state agencies and private and industrial landowners. 

Sec. 403. Applied silvicultural assessments 

Enables the Secretary concerned to conduct applied silvicultural 

assessments on federal lands that the Secretary determines in its 

sole discretion are at risk for infestation with certain named pests. 

Limits such assessment areas to 1,000 acres per assessment. Applies an overall acreage limitation to 250,000 acres. 

Requires the Secretary to provide notice of each applied silvicultural assessment proposed to be carried out. Requires the Secretary 

to provide an opportunity for public input. 

Creates a categorical exclusion from further analysis under 

NEPA which eliminates the Secretary’s responsibility to make any 

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findings as to whether the project has a significant effect on the environment. 

Sec. 404. Relation to other laws 

Clarifies that the authorities provided to the Secretary concerned 

in this title are supplemental to authorities provided in any other 

law. 

Sec. 405. Authorization of appropriations 

Authorizes the appropriation of such sums as may be necessary 

to carry out this title in fiscal years 2004 through 2008. 

TITLE V—HEALTHY FORESTS RESERVE PROGRAM 

Sec. 501. Establishment of Healthy Forests Reserve Program 

Establishes a Healthy Forests Reserve Program within the Forest Service to restore degraded forest lands and to promote the recovery of endangered species. 

Directs the Secretary of Agriculture to carry out the program in 

cooperation with the Secretary of the Interior, acting through the 

United States Fish and Wildlife Service (‘‘FWS’’). 

Sec. 502. Eligibility and enrollment of lands in program 

Directs the Secretary of Agriculture, in consultation with the 

Secretary of the Interior, to designate rare forest ecosystems to be 

eligible for the reserve program. Limits enrollment to 1 million 

acres. 

Allows lands to be enrolled pursuant to a 10-year cost-share 

agreement, a 30-year easement or a permanent easement with a 

buyback option. Leaves the enrollment method up to the owner. 

Sec. 503. Conservation plans 

Requires participating landowners to develop a conservation plan 

with the FWS describing the land use activities to be permitted on 

enrolled lands. 

Sec. 504. Financial assistance 

Sets forth the payment structure for 10-year, 30-year and permanent enrollment options as well as the procedure to exercise a 

buyback option in the case of a permanent easement. 

Sec. 505. Technical assistance 

Directs the Forest Service and FWS to provide landowners with 

the technical assistance necessary to comply with the terms of 

agreements and easements created in this program. 

Sec. 506. Safe harbor 

Directs the Secretary of the Interior to provide a safe harbor 

under section 7 of the Endangered Species Act to participating 

landowners when such enrollment will result in a net conservation 

benefit for listed species. 

Sec. 507. Authorization of appropriations 

Authorizes $15 million for each of the fiscal years 2004 through 

2008.

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TITLE VI—MISCELLANEOUS PROVISIONS 

Sec. 601. Forest stands inventory and monitoring program to improve detection of and response to environmental threats 

Requires the Secretary of Agriculture to carry out a comprehensive program to inventory, monitor, characterize, assess and identify forest stands in units of the National Forest System and on 

private lands with the consent of the landowner. 

Directs the Secretary, in carrying out this monitoring program, 

to develop a comprehensive early warning system which will enable 

forest managers to treat the land before a threat to forest health 

gets out of control. 

Authorizes $5 million for each of the fiscal years in 2004 through 

2008. 

COMMITTEE CONSIDERATION

I. HEARINGS

In response to the catastrophic wildfires of the 2000 season, Congress urged the Administration to develop a comprehensive plan for 

reducing the fire hazard, and rehabilitating burned areas. This effort resulted in the National Fire Plan, and the Comprehensive 

Strategy for Implementing the Fire Plan. The Plan is a collaborative effort of the Department of Agriculture, Interior, the States, 

Counties, and numerous private conservation, environmental and 

interest groups. In August 2002, the President announced the 

Healthy Forest Initiative (HFI), in response to a catastrophic fire 

season (the season of 2002). 

On April, 30, 2003, the Committee on Agriculture held a hearing 

on the President’s Healthy Forests Initiative which identifies real 

solutions to some of the problems facing our forests and the communities surrounding them. 

The first panel of witnesses included Mark Rey, Under Secretary 

for Natural Resources and the Environment of the U.S. Department of Agriculture, Rebecca Watson, Assistant Secretary for Land 

and Minerals Management of the U.S. Department of the Interior, 

Dale Bosworth, Chief of the U.S. Forest Service, and Pete 

Roussopoulos, Director of the Southern Research Station for the 

U.S. Forest Service. 

The second panel included Steven Koehn, Maryland State Forester, National Association of States Foresters from Annapolis, 

Maryland, Dr. John Helms, Professor Emeritus at the University 

of California Berkeley on behalf of the Society of American Forester 

from Berkeley, California, Mr. James Walls, Executive Director of 

Lake County Resources Initiative in partnership with Sustainable 

Northwest from Lake County, Oregon, and Mr. Jeffrey Hardesty, 

U.S. Director of Global Fire Initiative of the Nature Conservancy 

from Gainesville, Florida. 

II. FULL COMMITTEE CONSIDERATION

The Committee on Agriculture met, pursuant to notice, with a 

quorum present, on May 8, 2003, to consider H.R. 1904, the 

Healthy Forests Restoration Act of 2003, and other pending business. 

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Chairman Goodlatte called the meeting to order and made an 

opening statement as did Ranking Member Stenholm. Without objection, H.R. 1904 was placed before the Committee and open for 

amendment at any point. Counsel was then recognized to give a 

brief summary of the bill. 

Mr. Lucas of Oklahoma was recognized to offer and explain an 

amendment to limit technical assistance to the Environmental 

Quality Incentive Program (EQUIP), Farmland Protection Program 

(EPP), Grasslands Reserve Program (GRP), and the Wildlife Habitat Incentives Program (WHIP). Discussion occurred and without 

objection, the amendment was withdrawn. 

Mr. Udall of Colorado was then recognized to offer and explain 

an amendment to require the Forest Service and Bureau of Land 

Management to determine priorities for fuel reduction projects 

after consultation with State Foresters and consideration of the 

recommendations of statewide advisory councils. Discussion occurred and by voice vote, the amendment failed.

Mr. Udall was then recognized to offer and explain a second 

amendment to restore priority community protection, a sunset 

clause, and administrative stays to Title I. Discussion occurred and 

by a voice vote, the amendment failed. 

Mr. Udall was recognized to offer and explain a third amendment 

to exempt additional lands from insect assessments under Title IV 

and prohibit the use of herbicides in insect assessments on lands 

in municipal watersheds. Discussion occurred and by a voice vote, 

the amendment failed. 

Mr. Udall was again recognized to offer and explain a fourth and 

last amendment to the bill to delete section 403(d), permitting applied silvicultural assessments on Federal lands. Discussion occurred and by a voice vote, the amendment failed. 

Mr. Thompson of California was recognized to discuss report language regarding buffer zones along Class 1, 2, and 3 streams and 

conditions on road construction. Discussion occurred, and without 

objection, the report language was accepted. 

There being no further amendments, Mr. Stenholm reminded 

Members in which the spirit this Committee has always operated 

under in the acceptance of Minority, Additional or Dissenting 

Views to a committee report. 

Chairman Goodlatte then advised Members that pursuant to the 

rules of the House of Representatives that Members have 2 calendar days to file such views with the Committee. 

Mr. Stenholm moved that H.R. 1904, be adopted and reported favorably to the House with the recommendation that it do pass. 

By voice vote, the motion was agreed to in the presence of a 

quorum, H.R. 1904 was ordered favorably reported, without amendment to the House of Representatives. 

Mr. Stenholm then moved that pursuant to clause 1 of rule XXII, 

that the Committee authorize the Chairman to offer such motion 

as may be necessary in the House to go to conference with the Senate on H.R. 1904, or a similar Senate bill. Without objection, the 

motion was agreed to. 

Without objection, staff was given permission to make any necessary clerical, technical or conforming changes to reflect the intent 

of the Committee. 

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Chairman Goodlatte thanked all the Members and adjourned the 

meeting subject to the call of the chair. 

REPORTING THE BILL—ROLLCALL VOTES

In compliance with clause 3(b) of rule XIII of the House of Representatives, H.R. 1904 was reported by voice vote with a majority 

quorum present. There was no request for a recorded vote. 

COMMITTEE OVERSIGHT FINDINGS

Pursuant to clause 3(c)(1) of rule XIII of the Rules of the House 

of Representatives, the Committee on Agriculture’s oversight findings and recommendations are reflected in the body of this report. 

BUDGET ACT COMPLIANCE (SECTIONS 308, 402, AND 423) 

The provisions of clause 3(c)(2) of rule XIII of the Rules of the 

House of Representatives and section 308(a)(1) of the Congressional 

Budget Act of 1974 (relating to estimates of new budget authority, 

new spending authority, new credit authority, or increased or decreased revenues or tax expenditures) are not considered applicable. The estimate and comparison required to be prepared by the 

Director of the Congressional Budget Office under clause 3(c)(3) of 

rule XIII of the Rules of the House of Representatives and sections 

402 and 423 of the Congressional Budget Act of 1974 submitted to 

the Committee prior to the filing of this report are as follows:

U.S. CONGRESS, 

CONGRESSIONAL BUDGET OFFICE, 

Washington, DC, May 9, 2003. 

Hon. BOB GOODLATTE, 

Chairman, Committee on Agriculture, 

House of Representatives, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 1904, the Healthy Forests 

Restoration Act of 2003. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Megan Carroll. 

Sincerely, 

DOUGLAS HOLTZ-EAKIN, 

Director. 

Enclosure. 

H.R. 1904—Healthy Forests Restoration Act of 2003

Summary: CBO estimates that H.R. 1904 would authorize the 

appropriation of $70 million in 2004 and $350 million over the 

2004–2008 period to research and restore forests on federal, state, 

and private lands. Assuming appropriation of the necessary 

amounts, CBO estimates that implementing the bill would cost $12 

million in 2004 and $278 million over the next five years. Enacting 

this legislation could affect offsetting receipts (a credit against direct spending), but CBO estimates that any such effects would total 

less than $500,000 a year. 

H.R. 1904 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act (UMRA) 

15

and would impose no costs on state, local, or tribal governments. 

CBO assumes that states’ participation in the watershed forestry 

assistance programs authorized by this bill would be voluntary. 

Federal funds authorized for these and other programs would benefit state, local, and tribal governments. 

Estimated cost to the Federal Government: The estimated budgetary impact of H.R. 1904 is shown in the following table. The costs 

of this legislation fall within budget function 300 (natural resources 

and environment).

By fiscal year in millions of dollars—

2004 2005 2006 2007 2008

CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Estimated authorization level ....................................................................... 70 70 70 70 70

Estimated outlays ......................................................................................... 12 41 61 80 84

Basis of estimate 

For this estimate, CBO assumes that H.R. 1904 will be enacted 

before the end of fiscal year 2003 and that amounts estimated to 

be necessary to implement the bill will be provided each year. Estimates of outlays are based on historical spending patterns for similar activities. Provisions that would affect spending subject to appropriation and direct spending are described below. 

Spending subject to appropriation 

S. 1904 would specifically authorize the appropriation of $60 mil- lion in 2004 and $300 million over the 2004–2008 period for the 

Forest Service and the Department of the Interior (DOI) to support 

research and restoration of federal, state, and private forests. The 

bill would authorize those agencies to make grants to eligible entities that use biomass to produce energy, provide states with technical and financial assistance to support watershed management, 

purchase conservation easements from private landowners, and assess the health of federal and private forests. Based on information 

from the agencies and historical spending patters for similar activities, CBO estimates that these programs would cost $9 million in 

2004 and $230 million over the next five years. 

Based on information from the Forest Service and DOI about the 

level of effort required to investigate infestations of forests by insects and to develop treatments to reduce the risk of infestation, 

CBO estimates that S. 1904 would authorize the appropriation of 

$10 million a year over the 2004–2008 period. We estimate that fully funding these activities would cost $3 million in 2004 and $48 

million over the next five years. 

Direct spending (including offsetting receipts) 

Title I would authorize expedited procedures for planning and 

conducting certain projects to reduce the risk of wildfires on certain 

federal lands managed by the Forest Service or the Bureau of Land 

Management (BLM). Under the bill, those expedited procedures 

would limit some environmental assessment requirements and 

shorten administrative and judicial appeals. According to the Forest Service and BLM, the expedited procedures could affect the 

timing of some projects that generate offsetting receipts, such as 

timber harvests, that the agencies plan to conduct under current 

16

law. Based on information from the agencies, however, CBO estimates that any subsequent change in offsetting receipts would total 

less than $500,000 annually. 

Intergovernmental and private-sector impact: H.R. 1904 contains 

no intergovernmental or private-sector mandates as defined in 

UMRA and would impose no costs on state, local, or tribal governments. CBO assumes that states’ participation in the watershed 

forestry assistance programs authorized by this bill would be voluntary. Federal funds authorized for these and other programs 

would benefit state, local, and tribal governments. 

Previous CBO estimate: On May 7, 2003, CBO transmitted a cost 

estimate for S. 14, the Energy Policy Act of 2003, as introduced on 

April 30, 2003. A provision in that bill is substantively similar to 

a provision of H.R. 1904 that would authorize grants to eligible entities that use biomass to produce energy, and our estimates of the 

cost of such grants ($25 million a year) are the same under both 

bills. 

Estimate prepared by: Federal costs: Megan Carroll; impact on 

state, local, and tribal governments: Marjorie Miller; impact on the 

private sector: Cecil McPherson. 

Estimate approved by: Peter H. Fontaine, Deputy Assistant Director for Budget Analysis.

PERFORMANCE GOALS AND OBJECTIVES

With respect to the requirement of clause 3(c)(4) of rule XIII of 

the Rules of the House of Representatives, the performance goals 

and objections of this legislation are to improve the capacity of the 

Secretary of Agriculture and the Secretary of the Interior to plan 

and conduct hazardous fuels reduction projects of National Forest 

System lands and Bureau of Land Management lands aimed at 

protecting communities, watersheds, and certain other at-risk 

lands from catastrophic wildfire, to enhance efforts to protect watersheds and address threats to forest and rangeland health, including catastrophic wildfire, across the landscape. 

CONSTITUTIONAL AUTHORITY STATEMENT

Pursuant to clause 3(d)(1) of rule XIII of the Rules of the House 

of Representatives, the Committee finds the Constitutional authority for this legislation in Article I, clause 8, section 18, that grants 

Congress the power to make all laws necessary and proper for carrying out the powers vested by Congress in the Constitution of the 

United States or in any department or officer thereof. 

COMMITTEE COST ESTIMATE

Pursuant to clause 3(d)(2) of rule XIII of the Rules of the House 

of Representatives, the Committee report incorporates the cost estimate prepared by the Director of the Congressional Budget Office 

pursuant to sections 402 and 423 of the Congressional Budget Act 

of 1974. 

ADVISORY COMMITTEE STATEMENT

No advisory committee within the meaning of section 5(b) of the 

Federal Advisory Committee Act was created by this legislation. 

17

APPLICABILITY TO THE LEGISLATIVE BRANCH

The Committee finds that the legislation does not relate to the 

terms and conditions of employment or access to public services or 

accommodations within the meaning of section 102(b)(3) of the Congressional Accountability Act (Public Law 104–1). 

FEDERAL MANDATES STATEMENT

The Committee adopted as its own the estimate of Federal mandates prepared by the Director of the Congressional Budget Office 

pursuant to section 423 of the Unfunded Mandates Reform Act 

(Public Law 104–4).

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the 

House of Representatives, changes in existing law made by the bill, 

as reported, are shown as follows (new matter is printed in italic 

and existing law in which no change is proposed is shown in 

roman): 

SECTION 6 OF THE COOPERATIVE FORESTRY 

ASSISTANCE ACT OF 1978

SEC. 6. WATERSHED FORESTRY ASSISTANCE. 

(a) GENERAL AUTHORITY AND PURPOSE.—The Secretary, acting 

through the Forest Service, may provide technical, financial, and related assistance to State foresters and equivalent State officials for 

the purpose of expanding State forest stewardship capacities and activities through State forestry best-management practices and other 

means at the State level to address watershed issues on non-Federal 

forested lands and potentially forested lands. 

(b) TECHNICAL ASSISTANCE TO PROTECT WATER QUALITY.—

(1) IN GENERAL.—The Secretary, in cooperation with State 

foresters or equivalent State officials, shall engage interested 

members of the public, including nonprofit organizations and 

local watershed councils, to develop a program of technical assistance to protect water quality, as described in paragraph (2). 

(2) PURPOSE OF PROGRAM.—The program under this subsection shall be designed—

(A) to build and strengthen watershed partnerships that 

focus on forested landscapes at the local, State, and regional levels; 

(B) to provide State forestry best-management practices 

and water quality technical assistance directly to nonindustrial private forest landowners; 

(C) to provide technical guidance to land managers and 

policy makers for water quality protection through forest 

management; 

(D) to complement State and local efforts to protect water 

quality and provide enhanced opportunities for consultation and cooperation among Federal and State agencies 

charged with responsibility for water and watershed management; 

18

(E) to provide enhanced forest resource data and support 

for improved implementation and monitoring of State forestry best-management practices. 

(3) IMPLEMENTATION.—The program of technical assistance 

shall be implemented by State foresters or equivalent State officials. 

(c) WATERSHED FORESTRY COST-SHARE PROGRAM.—

(1) IN GENERAL.—The Secretary shall establish a watershed 

forestry cost-share program to be administered by the Forest 

Service and implemented by State foresters or equivalent State 

officials. Funds or other support provided under such program 

shall be made available for State forestry best-management 

practices programs and watershed forestry projects. 

(2) WATERSHED FORESTRY PROJECTS.—The State forester or 

equivalent State official of a State, in coordination with the 

State Forest Stewardship Coordinating Committee established 

under section 19(b) for that State, shall annually make awards 

to communities, nonprofit groups, and nonindustrial private 

forest landowners under the program for watershed forestry 

projects described in paragraph (3). 

(3) PROJECT ELEMENTS AND OBJECTIVES.—A watershed forestry project shall accomplish critical forest stewardship, watershed protection, and restoration needs within a State by demonstrating the value of trees and forests to watershed health 

and condition through—

(A) the use of trees as solutions to water quality problems 

in urban and rural areas; 

(B) community-based planning, involvement, and action 

through State, local and nonprofit partnerships; 

(C) application of and dissemination of monitoring information on forestry best-management practices relating to 

watershed forestry; 

(D) watershed-scale forest management activities and 

conservation planning; and 

(E) the restoration of wetland (as defined by the States) 

and stream-side forests and the establishment of riparian 

vegetative buffers. 

(4) COST-SHARING.—Funds provided under this subsection for 

a watershed forestry project may not exceed 75 percent of the 

cost of the project. Other Federal funding sources may be used 

to cover a portion of the remaining project costs, but the total 

Federal share of the costs may not exceed 90 percent. The nonFederal share of the costs of a project may be in the form of 

cash, services, or other in-kind contributions. 

(5) PRIORITIZATION.—The State Forest Stewardship Coordinating Committee for a State shall prioritize watersheds in that 

State to target watershed forestry projects funded under this 

subsection. 

(6) WATERSHED FORESTER.—Financial and technical assistance shall be made available to the State Forester or equivalent 

State official to create a State best-management practice forester 

to lead statewide programs and coordinate small watershedlevel projects. 

(d) DISTRIBUTION.—

19

(1) IN GENERAL.—The Secretary shall devote at least 75 percent of the funds appropriated for a fiscal year pursuant to the 

authorization of appropriations in subsection (e) to the costshare program under subsection (c) and the remainder to the 

task of delivering technical assistance, education, and planning 

on the ground through the State Forester or equivalent State official. 

(2) SPECIAL CONSIDERATIONS.—Distribution of these funds by 

the Secretary among the States shall be made only after giving 

appropriate consideration to—

(A) the acres of nonindustrial private forestland and 

highly erodible land in each State; 

(B) each State’s efforts to conserve forests; 

(C) the acres of forests in each State that have been lost 

or degraded or where forests can play a role in restoring 

watersheds; and 

(D) the number of nonindustrial private forest landowners in each State. 

(e) AUTHORIZATION OF APPROPRIATIONS.—There is authorized to 

be appropriated to carry out this section $15,000,000 for each of the 

fiscal years 2004 through 2008.

COMMITTEE CORRESPONDENCE

HOUSE OF REPRESENTATIVES, COMMITTEE ON AGRICULTURE, Washington, DC, May 9, 2003. 

Hon. RICHARD W. POMBO, 

Chairman, Committee on Resources, 

Longworth House Office Building, Washington, DC. 

DEAR CHAIRMAN POMBO: On May 8, 2003, the Committee on Agriculture ordered favorably reported H.R. 1904, the Healthy Forests 

Restoration Act of 2003, without amendment. The bill was referred 

primarily to the Committee on Agriculture, with an additional referral to the Committee on Resources. 

As you know, H.R. 1904 is a critical part of the President’s 

Healthy Forest Initiative and the Leadership of the House plans on 

scheduling the bill for consideration by the full House of Representatives as early as next week. Therefore, I respectively request that 

the Committee on Resources waive further consideration of bill. 

Of course, by allowing this to occur, the Committee on Resources 

does not waive its jurisdiction over H.R. 1904 or any other similar 

matter for all purposes. Finally, in the event a conference with the 

Senate is requested on this measure, I will support the naming of 

members from the Committee on Resources to the conference committee. 

Thank you for your cooperation in which our respective Committees have worked together and I look forward to working with you 

in the future on matters of shared jurisdiction. 

Sincerely, 

BOB GOODLATTE, 

Chairman. 

20

HOUSE OF REPRESENTATIVES, COMMITTEE ON RESOURCES, Washington, DC, May 9, 2003. 

Hon. BOB GOODLATTE, 

Chairman, Committee on Agriculture, 

Longworth House Office Building, Washington, DC. 

DEAR MR. CHAIRMAN: Thank you for your letter requesting that 

the Committee on Resources not insist in its additional referral of 

H.R. 1904, the Healthy Forests Restoration Act of 2003. The Committee on Resources has had a long-standing and active interest in 

forest health issues in public forest, and I have enjoyed working 

with you, Forests and Forest Health Subcommittee Chairman 

McInnis and your staff on this critical contribution to the President’s Healthy Forest Initiative. 

Knowing your interest in expediting consideration of this bill by 

the full House of Representatives in advance of the upcoming fire 

season, I agree to allow the Committee on Resources to be discharged from further consideration of H.R. 1904. This action does 

not waive the Committee’s jurisdiction over any provision in H.R. 

1904 or similar provisions in other bills. In addition, I ask that you 

support my request to have the Committee on Resources represented on the conference on this bill, if a conference is necessary. 

Finally, I ask that you include this letter in the Committee’s bill 

report or the Congressional Record during debate on H.R. 1904 

when it is considered by the House of Representatives. 

Thank you again for your leadership on this issue and I look forward to working with you again on matters of mutual interest. 

Sincerely, 

RICHARD W. POMBO, 

Chairman. 

(21)

DISSENTING VIEWS OF REPRESENTATIVE MARK UDALL 

INTRODUCTION

I have serious concerns about several aspects of H.R. 1904. But, 

above all, I am disappointed with the manner in which this legislation has been developed and considered. 

I do think we need to act to protect our communities and their 

water supplies, by reducing the built-up fuels that add to the fire 

dangers that threaten them. 

That’s why I have introduced legislation to expedite those 

thinning projects. It is also why last year I joined with my Colorado 

colleague, Representative McInnis, and other Members to develop 

the bill the Resources Committee approved last year. 

I voted for that bill last year. And if H.R. 1904 was the same as 

that bill, I would vote for it again. But this is not the same bill. 

Instead of building on the work the Resources Committee did 

last year, the Resources and Agriculture Committees were presented with a quite different measure—one that adds a long list of 

new provisions while omitting some of the key parts of the bill I 

voted for last year. Some of the new provisions may be desirable, 

but others clearly will be controversial. 

It seems to me it would be better to keep the focus on speeding 

up work to reduce the risks to our communities and their water 

supplies. Adding new issues and new controversies can only complicate matters and make it more difficult to pass a bill to accomplish those goals. 

I fear that going forward with H.R. 1904 as it stands means 

missing an opportunity to shape a bill that can attract much broader support. I also fear that the bill as it stands will exacerbate disputes and lead to increased conflicts and litigation. 

That is why, as both the Resources and Agriculture Committees 

considered this legislation, I sought to revise it so it would more 

closely resemble the bill reported by the Resources Committee last 

year. Unfortunately, those efforts were not successful, and so I am 

not able to support the legislation as it stands. 

Now, let me take this opportunity to explain my views and concerns in more detail. 

BACKGROUND

Many western communities are at risk of unusually severe 

wildfires. The cause is a combination of severe drought, the overgrown conditions of many federal forest lands resulting from past 

fire-suppression policies, and the growing number of settlements 

pressing against or into forested areas. I have consistently worked 

to reduce those risks. 

Last year’s terrible fires in Colorado and other States were a dramatic confirmation of those risks, but my concerns began much earVerDate Jan 31 2003 03:13 May 13, 2003 Jkt 019008 PO 00000 Frm 00021 Fmt 6604 Sfmt 6604 E:\HR\OC\HR096P1.XXX HR096P1
22

lier. Since my first election to Congress, I have made it a point to 

visit parts of Colorado that have been burned by very severe 

wildfires or that are at risk of similar fires. I have walked areas 

that have been treated through controlled fires and mechanical 

thinning and seen the dramatic difference that such treatments 

can make in reducing wildfire risks. I have been to the front lines 

of a burning wildfire—the Big Elk Meadows fire near Estes Park—

and have talked with homeowners, foresters, forest ecologists, forest users and conservationists to try to better understand what 

strategies can reduce the risks to lives and property. 

As a result, I am convinced we need to do more to reduce the 

risks to our communities, our water supplies, and our citizens. 

That is why I have introduced legislation (H.R. 5098 of the 106th 

Congress; H.R. 3948 of the 107th Congress; H.R. 1042 of the 108th 

Congress) to expedite the work of removing excessive fire-prone 

materials and to require the government to focus its efforts in the 

areas where this work will have the most immediate benefit for the 

most people. 

H.R. 1904 purports to share some of these purposes—but it also 

includes provisions I consider not only unnecessary but unwise and 

inappropriate. 

ENVIRONMENTAL ANALYSIS AND PUBLIC INVOLVEMENT AS RELATED

TO FUEL-REDUCTION PROJECTS

I do not think our national environmental laws are the obstacle 

to improving our response to the wildfire-related risks to our communities. So, I see no real need to make any fundamental changes 

in those laws. 

This is not to suggest that our national environmental laws are 

beyond improvement, nor that we cannot explore ways to reduce 

bureaucracy and lawsuits. But I think we should be very cautious 

about proposals to lessen public involvement in decisions about the 

management of the federal lands. 

I think a better approach is to increase public involvement during the planning and other initial stages of fuel-reduction projects. 

That was the purpose of an amendment I offered during the markup of the bill. The idea is to make it less likely those projects will 

be delayed by controversies or lawsuits, by developing support at 

the front end for projects that are urgently needed, narrowly tailored and scientifically sound. Toward that end, the amendment 

would have built on the public collaboration provisions already in 

the bill, to make it a truly cooperative program. 

The amendment called for creation of statewide advisory councils 

to work with the Forest Service and the BLM on the selection of 

specific projects. These councils would include broad representation 

of interests and would include scientific participation, and would 

develop projects in a collaborative fashion so as to avoid opposition, 

delays and appeals at the back-end when projects are being implemented. I think this would be a good way to foster real community 

involvement in developing good projects and so reduce controversies, resulting in faster action to protect people’s lives and property. 

A similar approach has shown real promise in New Mexico, which 

is why similar provisions are included in H.R. 1042, which I introVerDate Jan 31 2003 01:48 May 13, 2003 Jkt 019006 PO 00000 Frm 00022 Fmt 6604 Sfmt 6602 E:\HR\OC\HR096P1.XXX HR096P1
23

duced with my colleague and cousin, Representative Tom Udall. I 

regret that this amendment was not adopted. 

H.R. 1904 as reported would permit the Forest Service and the 

Bureau of Land Management (BLM) to implement a fuel-reduction 

project without the full documentation normally required by section 

102(2) of the National Environmental Policy Act of 1969 (NEPA). 

I do not think such provisions are necessary, because NEPA has 

not been a major obstacle to progress in reducing risks to communities and water supplies. Instead, the main obstacles have been 

inadequate focus on the highest-priority areas and a failure by the 

relevant land-managing agencies—under both the last Administration and this one—to do enough to develop and implement narrowly-tailored thinning projects that can enjoy broad support.

Accordingly, I think any provisions such as those in section 104 

of H.R. 1904 should apply only for a temporary period, after which 

Congress can consider whether to extend them. 

The bill reported by the Resources Committee had such a sunset 

clause, but Title I of H.R. 1904 does not. I offer an amendment to 

add one to the bill; rejection of that amendment is one reason I 

cannot support the bill as it now stands. 

PRIORITY AREAS FOR FUEL-REDUCTION PROJECTS

I think the highest priority for fuel-reduction work needs to be 

on the forest lands where accumulated fuels present the most immediate risks to our communities—those within the wildland/urban 

interface, or the ‘‘red zone,’’ as it is called in Colorado—and to municipal water supplies. These are the places where forest conditions 

present the greatest risks to people’s lives, health, and property, 

and so they should be where our finite resources—time, money, 

and people—are concentrated. 

To properly focus on these areas, we have to properly identify 

them. In that regard, I have no quarrel with the provisions of H.R. 

1904. By referring to lands within either an ‘‘interface’’ or ‘‘intermix’’ community, it provides an appropriate limitation on the 

discretion of the agencies without drawing an arbitrary mileage 

line that would not appropriately reflect the reality that a community’s exposure to the risk of wildfire depends on terrain, forest 

conditions, and other factors that can vary greatly from one place 

to another and over time. 

However, proper focus also requires assured priority status for 

funds to carry out projects to protect communities and their water 

supplies. The bill reported by the Resources Committee last year 

required that at least 70% of the funds provided for fuel-reduction 

purposes be used for such projects—but no similar provision is included in H.R. 1904. I offered an amendment to restore the provision, and failure of the Committee to adopt that amendment is another major reason I cannot support the bill as it now stands. 

‘‘ANALYSIS PARALYSIS,’’ APPEALS, AND JUDICIAL REVIEW

As was true of legislation introduced in the 107th Congress, H.R. 

1904 clearly reflects the premise that the land-managing agencies 

are laboring under procedural burdens that unnecessarily delay 

work on fuel-reduction projects. 

I think that premise has not been proved beyond doubt. 

24

The Chief of the Forest Service has testified that the agency has 

been slow to act to reduce the risks of catastrophic wildfire because 

of ‘‘analysis paralysis,’’ meaning that the fear of appeals or litigation has made Forest Service personnel excessively cautious in the 

way they formulate and analyze fuel-reduction (and other) projects. 

The chief may be correct in that diagnosis—certainly he is in a 

better position than I am to evaluate the mental states of his subordinates. But it is important to remember that the Chief has also 

testified that he does not think revision of the environmental laws 

is required in order to treat this condition—and on that point I am 

in full agreement. 

And if fear of appeals and litigation is the cause of ‘‘analysis paralysis,’’ how realistic is that fear? Over the last year or more, 

there has been considerable debate over that point, in Congress 

and in the press. I think it is fair to say that debate has been more 

heated than enlightening, and that the question remains unresolved. I am not convinced that the case has been fully made that 

the ability of people to seek administrative or judicial review of 

Forest Service decisions has had such adverse effects that stringent 

limitations on those processes are essential. 

Nonetheless, I think some streamlining of the administrative appeals process would be appropriate for high-priority fuel-reduction 

projects. That is why I supported provisions on this subject that 

were included in the bill reported by the Resources Committee last 

year and why similar provisions are included in H.R. 1042, which 

I introduced with Representative Udall of New Mexico earlier this 

year. 

However, H.R. 1904 does not include similar provisions. Instead, 

in section 105, it merely directs the Secretary of Agriculture to develop a new administrative appeals process for such projects. This 

amounts to giving the Secretary a blank check, which I think is not 

the best way to proceed with regard to so important a matter. 

In addition, the bill as reported includes provisions related to judicial review that I raise very serious questions. 

The bill reported by the Resources Committee last year also included provisions dealing with judicial review. They were less farreaching than those in sections 106 and 107 of H.R. 1904, but the 

only reason that I could support their inclusion in last year’s bill 

was the fact that the bill also included an automatic stay of agency 

action until the completion of administrative and judicial reviews. 

This is another provision of last year’s bill that is not included in 

H.R. 1904. I offered an amendment to restore it, and the rejection 

of that amendment is another major reason I cannot support H.R. 

1904 as it stands. 

In the absence of any automatic stay, I think it would be better 

if sections 106 and 107 were not part of this bill. I am very concerned by expert analyses suggesting that they would place new 

and unprecedented restrictions on judicial review, and seem designed to have the effect of unfairly and arbitrarily shutting the 

court house door on our citizens, making the federal government 

less accountable to the public in the management of our public 

lands and national forests. 

Section 106 says that ‘‘Notwithstanding any other provision of 

law’’ an action in U.S. court challenging an authorized fuel-reducVerDate Jan 31 2003 01:48 May 13, 2003 Jkt 019006 PO 00000 Frm 00024 Fmt 6604 Sfmt 6602 E:\HR\OC\HR096P1.XXX HR096P1
25

tion project must be filed within 15 days after an agency decision 

is made public. This time limit, which counts weekend days and 

holidays, supercedes any notice of intent to file suit requirement or 

filing deadline otherwise applicable to a challenge under ‘‘any provision of law.’’ This raises the prospect that through a backdoor approach, the 

bill in effect is amending the Clean Water Act, the Endangered 

Species Act and a host of other laws which could be applicable to 

federal agency actions. For example, a Clean Air Act-based challenge by a local government to prescribed burning on public lands 

would be precluded after 15 days. It is difficult to conceive that 

many local governments across the country could consider complex 

federal plans and authorize and bring lawsuits within 15 days. Private parties, of course, would face the same practical and logistical 

challenges. 

I am also very concerned that the limitation would force appellants to anticipate litigation from the onset of the environmental 

analysis process. The deadline essentially would create a use-it-orlose-it situation, wherein the appellant must either have the appeal 

pre-prepared, or else scramble madly to meet such an unrealistic 

deadline. Ultimately, this subsection seems likely to create a perverse incentive to file lawsuits against fuel reduction plans, since 

failing to do so closes the court house door thereafter. 

Section 106(a)’s notice requirement also raises concern. It provides that the Secretary publish notice of final agency action of 

fuels reduction project in the ‘‘local paper of record.’’ In areas that 

have multiple newspapers, a troubling situation could arise if the 

Secretary published notice in more than one paper. If, for instance, 

two or more different local papers published the notice on different 

dates, the appellant could potentially miss the deadline because it 

relied on the wrong newspaper. As amazing as this seems, this scenario is definitely within the realm of possibility. It well might 

make better sense to publish the final agency decision in the Federal Register to ensure predictability and certainty of the dates of 

publication that are beyond dispute. 

Further, this part of the bill tilts excessively in favor of the federal agencies, which already have very broad discretion. 

Section 107 sets what I understand to be a new standard for injunctive relief by mandating that courts must give deference to any 

federal agency determination of the balance of harms and the public interest. Notably, unlike the filing deadline and other provisions 

included in section 106, this new standard of deference applies not 

only to hazardous fuels reduction projects, but to any agency action 

on federal lands that the agency decides is ‘‘necessary to restore a 

fire-adapted forest or rangeland ecosystem.’’ The boundaries of this 

provision are very unclear, at best, because most forest and rangeland ecosystems have evolved so as to adapt to fire—suggesting 

that deference would be given to essentially any agency action. 

I am concerned that Section 107 seems intended to allow federal 

agencies to determine the public interest and might make it excessively difficult for even misguided agency actions to be corrected. 

The section mandates that a court ‘‘give deference to any agency 

finding, based upon information in the administrative record, that 

the balance of harm and the public interest in avoiding the shortVerDate Jan 31 2003 01:48 May 13, 2003 Jkt 019006 PO 00000 Frm 00025 Fmt 6604 Sfmt 6602 E:\HR\OC\HR096P1.XXX HR096P1
26

term effects of the agency action is outweighed by the public interest in avoiding long-term harm to the ecosystem.’’ This standard—

which I am told appears to be unprecedented in any prior law—

seems designed to allow a federal agency to determine whether its 

own plan is in the public interest and, in effect, to have that determination be presumed valid by the court. 

In other words, I am told there is a serious chance that this 

standard would allow a federal agency to make a unilateral decision regarding what it construes to be in the public’s best interest, 

put in the administrative record, and then bootstrap that decision 

in federal court. I am told that this well may violate the Constitution’s separation of powers doctrine because it seeks to intrude 

upon the equitable powers of the judiciary. My understanding is 

that the courts currently exercise the authority to consider the public interest or to defer to the agency when reviewing agency action 

and considering whether an injunction should be issued. I am concerned that section 107 appears intended to prohibit judges from 

exercising their judgment by directing the court to defer to the 

agency’s balancing of the harms. 

This problem would be made worse if a standard based upon an 

agency’s balancing of the harms should become routine in cases involving agency compliance with NEPA, so that even if plaintiffs 

would prevail on the merits they would have had a very difficult 

time getting an injunction to halt an improper activity. 

There is also a serious question about the propriety of having the 

Resources and Agriculture Committees include provisions addressing judiciary review. That is not properly within the power of the 

Resources or Agriculture Committee to determine, since under the 

House rules such matters would seem to be within the jurisdiction 

of the Judiciary Committee—a concern raised by a letter from the 

Ranking Member of that Committee. 

OTHER SHORTCOMINGS OF REPORTED BILL

In addition to the aspects of Title I discussed above, H.R. 1904 

includes a number of other problematical provisions. 

TITLE II—BIOMASS

For example, Title II, like a corresponding part of the energy bill 

(H.R. 6) developed in the Resources Committee, deals with use for 

biomass purposes of material removed from forest lands in order to 

reduce fuel loads. I am a supporter of biomass, and I think the biomass title is one of the better parts of that energy bill. So, I do not 

object to its inclusion in H.R. 1904. However, I think it should be 

more tightly focused. 

Title II would provide people who own or operate biomass plants 

with cash grants, which could be used to buy material removed 

from the forests in order to reduce fuel loads. I think that additional subsidy should be used only to buy material taken from the 

areas of highest priority—the ‘‘wildland-urban interface,’’ or ‘‘red 

zones’’—that are nearest to communities, the places where people’s 

lives and property are most at risk. In the Resources Committee, 

I offered an amendment to make that change. I regret that it was 

not adopted. 

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TITLE IV—INSECT INFESTATIONS

As I said during the Committee’s markup, I would prefer that 

Title 4 be completely eliminated—for two reasons. 

First, I have serious concerns about the broad scope of its provisions and am not convinced that such sweeping legislation is necessary. 

Second, I fear that its inclusion will make the bill more controversial than necessary, and so make it that much harder to pass 

a sound, balanced bill to expedite needed work to protect our communities and their water supplies. 

In the Resources Committee, I offered an amendment that would 

have deleted this title entirely. I regret that the amendment was 

not adopted. In the Agriculture Committee, I offered two amendments intended to make the title less problematical. 

The first of these amendments would have narrowed the scope 

of the Title, in several ways. 

It would have expanded the list of lands that would be off-limits 

to the ‘‘applied silvicultural assessment’’ projects authorized by section 403. It would have exempted the lands the Forest Service’s 

own forest plans recommend for protection as wilderness. It also 

would have exempted the inventoried roadless areas that are covered by the Forest Service’s roadless conservation rule. And it 

would have exempted any other lands that are now being managed 

in a way that preserves Congressional options about their possible 

designation as wilderness in the future. I proposed those changes 

because while section 403 already exempts wilderness areas and 

some wilderness-study areas, I think the bill should give the same 

status to the other lands that are being managed as potential wilderness areas, and to the roadless areas that have such high environmental and ecological value. The amendment also would have 

explicitly banned use of herbicides in municipal watersheds. The 

fact that this amendment was not adopted is another reason I am

unable to support the bill as reported. 

My second amendment to Title IV, which I also offered on behalf 

of Representative Hill, would have deleted the provision of section 

403 that says the ‘‘applied silvicultural assessments’’ are ‘‘categorically excluded’’ from review under NEPA. I think that provision is 

one of the most troubling parts of the entire bill. 

To start with, section 404 defines these ‘‘assessments’’ very 

broadly. It says they can include ‘‘any vegetative or other treatment . . . including timber harvest, thinning, prescribed burning, 

and pruning’’ or any combination of those. 

And, under section 403, the Forest Service or BLM could carry 

out these activities on any Federal lands that the agency—in its 

sole discretion—determines either has an infestation problem or is 

at risk of insect infestation. That is very broad, too—in fact, it 

seems practically unlimited, since almost any land with trees is at 

some risk of infestation. 

I am not disputing that insects can be a serious problem. And 

there may be a need for drastic actions to try to prevent insect 

damage, now or in the future. But I certainly see no reason we 

should exempt those actions from complying with any of the environmental laws. 

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If these projects are necessary and sound, they can withstand 

scrutiny under NEPA. And if they are unnecessary or not well-designed, a NEPA review can bring that out. That is what NEPA is 

for, why it is on the books. The Udall-Hill amendment would not 

have banned these projects. It would just have provided for them 

to be reviewed in the usual way. 

That does not necessarily mean there would have to be an environmental impact statement in every case, because under NEPA, 

there would be a case-by-case decision about what kind of documentation was required. In some cases, that might mean that an 

environmental assessment—an EA—would be enough. But if a 

project was big enough—and, under section 403, each ‘‘treatment’’ could involve up to 1,000 acres—then a full environmental impact 

statement might be necessary. And, of course, cumulative impacts 

of multiple projects should not be overlooked. That is what the law 

provides now. I think it should continue to apply. That was the 

point of the amendment—not to prohibit these projects, but to have 

them comply with the law. The fact that this amendment was not 

adopted is another major reason I cannot support H.R. 1904 as reported. 

CONCLUSION

I do think it is appropriate for Congress to act to improve the effectiveness of the way the Forest Service and Bureau of land Management are undertaking to reduce the risks of catastrophic 

wildfires to the lives, health, and property of people living in communities near federal forest lands. That is the purpose of the legislation—H.R. 1042—I introduced earlier this year. 

However, I think H.R. 1904 is not well-designed to accomplish 

that goal. That is why I have sought to improve it. I will continue 

to work for its improvement and for enactment of more appropriate 

and responsible legislation. 

MARK UDALL.

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