[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 879 Introduced in Senate (IS)]
<DOC>
115th CONGRESS
1st Session
S. 879
To expedite and prioritize forest management activities to achieve
ecosystem restoration objectives, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
April 6 (legislative day, April 4), 2017
Mr. Barrasso (for himself, Mr. Flake, Mr. McCain, and Mr. Enzi)
introduced the following bill; which was read twice and referred to the
Committee on Energy and Natural Resources
_______________________________________________________________________
A BILL
To expedite and prioritize forest management activities to achieve
ecosystem restoration objectives, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``National Forest
Ecosystem Improvement Act of 2017''.
(b) Table of Contents.--The table of contents of this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. Definitions.
TITLE I--FOREST MANAGEMENT ACTIVITIES
Sec. 101. Purposes.
Sec. 102. Definitions.
Sec. 103. Ecosystem restoration projects.
Sec. 104. National restoration treatment acreage.
Sec. 105. Environmental review for ecosystem restoration projects.
Sec. 106. Alternative dispute resolution.
Sec. 107. Bonding requirements for judicial review.
Sec. 108. Performance measures; annual reports.
TITLE II--CATEGORICAL EXCLUSIONS
Sec. 201. Definitions.
Sec. 202. Categorical exclusion to expedite certain critical response
actions.
Sec. 203. Categorical exclusion to expedite salvage operations in
response to catastrophic events.
Sec. 204. Categorical exclusion to meet forest plan goals for early
successional forests.
Sec. 205. Alternative agency consultation procedures.
SEC. 2. DEFINITIONS.
In this Act:
(1) Community wildfire protection plan.--The term
``community wildfire protection plan'' has the meaning given
the term in section 101 of the Healthy Forests Restoration Act
of 2003 (16 U.S.C. 6511).
(2) National forest system.--
(A) In general.--The term ``National Forest
System'' has the meaning given the term in section
11(a) of the Forest and Rangeland Renewable Resources
Planning Act of 1974 (16 U.S.C. 1609(a)).
(B) Exclusion.--The term ``National Forest System''
does not include--
(i) any forest reserve not created from the
public domain; or
(ii) any national grassland or land
utilization project administered under title
III of the Bankhead-Jones Farm Tenant Act (7
U.S.C. 1010 et seq.).
TITLE I--FOREST MANAGEMENT ACTIVITIES
SEC. 101. PURPOSES.
The purposes of this title are--
(1) to establish a reliable and predicable timber supply
from the National Forest System that can be harvested,
processed, and sold as wood products to help fund ecosystem
restoration; and
(2) to expedite and prioritize forest management activities
to achieve ecosystem restoration objectives.
SEC. 102. DEFINITIONS.
In this title:
(1) Restoration.--
(A) In general.--The term ``restoration'', with
respect to an ecosystem, means to carry out any
activity that helps to recover, establish, or maintain
the resilience or adaptive capacity of an ecosystem.
(B) Inclusions.--The term ``restoration'' includes
any activity described in subparagraph (A) relating
to--
(i) timber harvesting;
(ii) thinning;
(iii) prescribed fire; or
(iv) other vegetation manipulation in the
National Forest System.
(2) Secretary.--The term ``Secretary'' means the Secretary
of Agriculture, acting through the Chief of the Forest Service.
SEC. 103. ECOSYSTEM RESTORATION PROJECTS.
(a) In General.--Subject to subsection (b), the Secretary shall
identify, prioritize, and carry out ecosystem restoration projects on
National Forest System land in accordance with applicable land and
resource management plans prepared by the Secretary for units of the
National Forest System under section 6 of the Forest and Rangeland
Renewable Resources Planning Act of 1974 (16 U.S.C. 1604), if any, to
accomplish 1 or more of the following objectives:
(1) To restore terrestrial habitat.
(2) To sustain water quality, water flows, or watershed
health and function.
(3) To create, improve, or increase early seral habitat.
(4) To carry out a needed timber stand improvement.
(5) To reduce the risk or extent of insect or disease
infestation.
(6) To reduce wildland fire severity potential.
(7) To implement a community wildfire protection plan.
(8) To establish, recover, or maintain ecosystem
resiliency.
(b) Exclusions.--The Secretary may not carry out an ecosystem
restoration project under this section on any area of National Forest
System land--
(1) that is a component of the National Wilderness
Preservation System; or
(2) on which removal of vegetation is prohibited by law.
SEC. 104. NATIONAL RESTORATION TREATMENT ACREAGE.
(a) In General.--For fiscal year 2018 and each fiscal year
thereafter, the Secretary shall accomplish restoration treatments, at a
minimum, on the following acreage throughout the National Forest
System:
(1) 1,000,000 acres of restoration treatment using
mechanical treatment methods, of which the treatment of--
(A) not less than 400,000 acres shall be conducted
using commercial thinning; and
(B) not less than 60,000 acres shall be conducted
using even-aged management techniques.
(2) 1,000,000 acres of restoration treatment using
prescribed fire.
(b) Assignment.--Not later than 90 days after the date of enactment
of this Act, and annually thereafter, the Secretary shall assign the
annual acreage for restoration treatments, by National Forest System
region, described in subsection (a).
(c) Publication.--As soon as practicable after the date of each
assignment of acreage for restoration treatments under subsection (b),
the Secretary shall publish the acreage that will apply, by National
Forest System region, on the Internet website of the Forest Service.
SEC. 105. ENVIRONMENTAL REVIEW FOR ECOSYSTEM RESTORATION PROJECTS.
(a) Applicability of National Environmental Policy Act of 1969.--
The Secretary shall prepare an environmental assessment in accordance
with the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et
seq.) for each ecosystem restoration project that accomplishes 1 or
more of the objectives identified in section 103(a).
(b) Public Notice and Comment.--In preparing an environmental
assessment for an ecosystem restoration project under subsection (a),
the Secretary shall provide public notice of, and an opportunity to
comment regarding, the applicable project.
(c) Consideration of Alternatives.--The Secretary shall study,
develop, and describe in each environmental assessment under subsection
(a)--
(1) the ecosystem restoration project as the proposed
action; and
(2) a no-action alternative, the analysis of which shall
include a description of the resulting environmental effects of
taking no action on--
(A) forest health;
(B) habitat diversity;
(C) wildfire potential;
(D) insect and disease potential;
(E) municipal water supplies; and
(F) other economic and social factors.
(d) Limitations.--The Secretary shall limit each environmental
assessment under this section to a length of not more than 100 pages.
(e) Deadline for Completion.--
(1) In general.--Not later than 180 days after the date on
which the Secretary publishes a notice regarding an ecosystem
restoration project in accordance with subsection (b), the
Secretary shall complete the environmental assessment for the
ecosystem restoration project.
(2) No supplemental analysis required.--No supplemental
analysis of an ecosystem restoration project that is the
subject of an environmental assessment under paragraph (1)
shall be required after the date on which that environmental
assessment is complete.
SEC. 106. ALTERNATIVE DISPUTE RESOLUTION.
(a) Arbitration.--
(1) In general.--The Secretary shall establish within the
Forest Service an arbitration program as an alternative dispute
resolution process in lieu of judicial review for the projects
described in subsection (b).
(2) Notification to objectors.--On issuance of an appeal
response to an objection filed with respect to an ecosystem
restoration project subject to an objection at the project
level under part 218 of title 36, Code of Federal Regulations
(as in effect on the date of enactment of this Act), the
Secretary shall notify each applicable individual or entity
that submitted the objection (referred to in this section as
the ``objector'') that any further appeal may be subject to
arbitration in accordance with this section.
(b) Description of Projects.--The Secretary, at the sole discretion
of the Secretary, may designate the following types of ecosystem
restoration projects for arbitration:
(1) Projects developed through a collaborative process
(within the meaning of section 603(b)(1)(C) of the Healthy
Forest Restoration Act of 2003 (16 U.S.C. 6591b(b)(1)(C))).
(2) Projects identified in a community wildfire protection
plan.
(3) For each applicable calendar year, not more than 2
other types of ecosystem restoration projects for each region
of the Forest Service.
(c) Arbitrators.--
(1) Appointment.--The Secretary shall develop and publish a
list of not fewer than 20 individuals eligible to serve as
arbitrators for the program under this section.
(2) Qualifications.--In order to be eligible to serve as an
arbitrator under this subsection, an individual shall be
currently certified by the American Arbitration Association.
(d) Initiation of Arbitration.--
(1) In general.--Not later than 7 days after the date of
receipt of a notice of intent to file suit challenging an
ecosystem restoration project, the Secretary shall notify each
applicable objector and the court of jurisdiction that the
project has been designated for arbitration in accordance with
this section.
(2) Demand for arbitration.--
(A) In general.--An objector that sought judicial
review of an ecosystem restoration project that has
been designated by the Secretary for arbitration under
this section may file a demand for arbitration in
accordance with--
(i) sections 571 through 584 of title 5,
United States Code; and
(ii) this paragraph.
(B) Requirements.--A demand for arbitration under
subparagraph (A) shall--
(i) be filed not later than the date that
is 30 days after the date of the notification
by the Secretary under paragraph (1); and
(ii) include an alternative proposal to the
applicable ecosystem restoration project that
describes each modification sought by the
objector with respect to the ecosystem
restoration project.
(e) Selection of Arbitrator.--For each arbitration commenced under
this section, the Secretary and each applicable objector shall agree on
a mutually acceptable arbitrator from the list published under
subsection (c)(1).
(f) Responsibilities of Arbitrator.--
(1) In general.--An arbitrator selected under subsection
(e)--
(A) shall address each demand filed for arbitration
with respect to an ecosystem restoration project under
this section; but
(B) may consolidate into a single arbitration all
demands for arbitration by all objectors with respect
to an ecosystem restoration project.
(2) Selection of proposals.--An arbitrator shall make a
decision regarding each applicable demand for arbitration under
this section by selecting--
(A) the ecosystem restoration project, as approved
by the Secretary; or
(B) an alternative proposal submitted by the
applicable objector.
(3) Limitations.--
(A) Administrative record.--A decision of an
arbitrator under this subsection shall be based solely
on the administrative record for the ecosystem
restoration project.
(B) No modifications to proposals.--An arbitrator
may not modify any proposal contained in a demand for
arbitration of an objector under this section.
(g) Deadline for Completion of Arbitration.--Not later than 90 days
after the date on which a demand for arbitration is filed under
subsection (d)(2), the arbitration process shall be completed.
(h) Effect of Arbitration Decision.--A decision of an arbitrator
under this section--
(1) shall not be considered to be a major Federal action;
(2) shall be binding; and
(3) shall not be subject to judicial review, except as
provided in section 10(a) of title 9, United States Code.
SEC. 107. BONDING REQUIREMENTS FOR JUDICIAL REVIEW.
(a) Bond Requirement.--
(1) In general.--The judicial review of an action
challenging an ecosystem restoration project under this title
(referred to in this section as an ``action'') shall be subject
to the bonding requirements of this section.
(2) Bond or security.--
(A) In general.--As soon as practicable after the
date on which a complaint or appeal is filed to
initiate an action, each plaintiff shall post a bond or
other security acceptable to the court in an amount
equal to the anticipated costs, expenses, and attorney
fees of the Secretary as a defendant in the action, in
accordance with a reasonable estimate of the Secretary.
(B) Requirement.--All proceedings in an action
shall be stayed until the bond or security required
under subparagraph (A) is posted.
(b) Recovery of Litigation Costs, Expenses, and Attorney Fees.--
(1) Motion for payment.--If the Secretary prevails in an
action, the Secretary shall submit to the court a motion for
payment from the bond or other security posted under subsection
(a), of the reasonable costs, expenses, and attorney fees
incurred by the Secretary as a defendant in the action.
(2) Maximum recovery.--The total amount of costs, expenses,
and attorney fees recovered by the Secretary under paragraph
(1) may not exceed the amount of the bond or other security
posted in the action.
(3) Return remainder.--Any funds remaining from the bond or
other security posed under subsection (a) after the payment of
costs, expenses, and attorney fees under paragraph (1) shall be
returned to the plaintiff that posted the bond or security in
the action.
(c) Return of Bond to Prevailing Plaintiff.--If the applicable
court rules, in a final enforcement judgment, in favor of a plaintiff
on all causes of each action of the plaintiff, the court shall return
to the plaintiff any bond or security posted by the plaintiff under
subsection (a), plus any interest accruing during the period beginning
on the date on which the bond or security was posted.
(d) Effect of Settlement.--
(1) In general.--If an action in which a bond or security
was posted is resolved by settlement between the Secretary and
the plaintiff, the settlement agreement may provide for sharing
of the costs, expenses, and attorney fees incurred by the
parties to the action.
(2) Deferral.--A settlement agreement under paragraph (1)
may defer the resolution of costs, expenses, and attorney fees
to--
(A) further negotiation; or
(B) decision by the court.
SEC. 108. PERFORMANCE MEASURES; ANNUAL REPORTS.
(a) Performance Measures.--The Secretary shall annually evaluate
the degree to which the Secretary is achieving--
(1) the purposes of this title, including--
(A) the number of acres covered by ecosystem
restoration projects;
(B) the number of acres treated by mechanical
methods under ecosystem restoration projects;
(C) the number of acres treated using stewardship
contracts and stewardship agreements under ecosystem
restoration projects;
(D) the number of acres treated using timber sales
under ecosystem restoration projects;
(E) the number of acres treated by prescribed fire,
mowing, and other noncommercial product producing
activities under ecosystem restoration projects; and
(F) to the extent practicable, a summary of acres
receiving more than 1 type of treatment; and
(2) the acreage requirements established under section
104(a).
(b) Annual Reports.--Not later than 1 year after the date of
enactment of this Act, and annually thereafter, the Secretary shall
submit to the Committee on Energy and Natural Resources of the Senate
and the Committee on Natural Resources of the House of
Representatives--
(1) a report that describes, with respect to the preceding
year, the results of evaluations using the performance measures
described in subsection (a); and
(2) a report that describes, with respect to the preceding
year--
(A) the number and substance of ecosystem
restoration projects that are subject to arbitration
under section 106; and
(B) the outcomes of the arbitrations under that
section.
TITLE II--CATEGORICAL EXCLUSIONS
SEC. 201. DEFINITIONS.
In this title:
(1) Catastrophic event.--The term ``catastrophic event''
means any natural disaster (such as hurricane, tornado,
windstorm, snow or ice storm, rain storm, high water, wind-
driven water, tidal wave, earthquake, volcanic eruption,
landslide, mudslide, drought, or insect or disease outbreak),
or any fire, flood, or explosion, regardless of cause.
(2) Categorical exclusion.--The term ``categorical
exclusion'' means an exception to the requirements of the
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et
seq.) for a project or activity relating to the management of
National Forest System land.
(3) Collaborative process.--The term ``collaborative
process'' means a process relating to the management of
National Forest System land by which a project or activity is
developed and implemented by the Secretary through
collaboration with interested persons, as described in section
603(b)(1)(C) of the Healthy Forests Restoration Act of 2003 (16
U.S.C. 6591b(b)(1)(C)).
(4) Forest management activity.--The term ``forest
management activity'' means a project or activity carried out
by the Secretary on National Forest System land, consistent
with the forest plan covering that land.
(5) Forest plan.--The term ``forest plan'' means a land and
resource management plan prepared by the Forest Service for a
unit of the National Forest System pursuant to section 6 of the
Forest and Rangeland Renewable Resources Planning Act of 1974
(16 U.S.C. 1604).
(6) Salvage operation.--The term ``salvage operation''
means a forest management activity carried out in response to a
catastrophic event, the primary purpose of which is--
(A) to prevent wildfire as a result of the
catastrophic event, or, if the catastrophic event was
wildfire, to prevent a reburn of the fire-impacted
area;
(B) to provide an opportunity for use of forest
materials damaged as a result of the catastrophic
event; or
(C) to provide a funding source for reforestation
and other restoration activities for the National
Forest System land impacted by the catastrophic event.
(7) Secretary.--The term ``Secretary'' means the Secretary
of Agriculture (acting through the Chief of the Forest
Service).
SEC. 202. CATEGORICAL EXCLUSION TO EXPEDITE CERTAIN CRITICAL RESPONSE
ACTIONS.
(a) Availability of Categorical Exclusion.--A categorical exclusion
is available to the Secretary to develop and carry out a forest
management activity on National Forest System land in any case in which
the primary purpose of the forest management activity is--
(1) to address an insect or disease infestation;
(2) to treat land at risk of insect or disease infestation;
(3) to reduce hazardous fuel loads;
(4) to protect a municipal water source;
(5) to maintain, enhance, or modify critical habitat to
protect the habitat from catastrophic disturbances;
(6) to increase water yield; or
(7) any combination of the purposes specified in paragraphs
(1) through (6).
(b) Acreage Limitations.--
(1) In general.--Except in the case of a forest management
activity described in paragraph (2), a forest management
activity covered by the categorical exclusion granted by
subsection (a) may not contain harvest units exceeding a total
of 5,000 acres.
(2) Larger areas authorized.--A forest management activity
covered by the categorical exclusion granted by subsection (a)
may not contain harvest units exceeding a total of 15,000 acres
if the forest management activity is--
(A) developed through a collaborative process;
(B) proposed by a resource advisory committee (as
defined in section 201 of the Secure Rural Schools and
Community Self-Determination Act of 2000 (16 U.S.C.
7121)); or
(C) covered by a community wildfire protection
plan.
SEC. 203. CATEGORICAL EXCLUSION TO EXPEDITE SALVAGE OPERATIONS IN
RESPONSE TO CATASTROPHIC EVENTS.
(a) Availability of Categorical Exclusion.--A categorical exclusion
is available to the Secretary to develop and carry out a salvage
operation as part of the restoration of National Forest System land
following a catastrophic event.
(b) Acreage Limitations.--A salvage operation covered by the
categorical exclusion granted by subsection (a) may not contain harvest
units exceeding a total of 5,000 acres.
(c) Additional Requirements.--
(1) Road construction.--A salvage operation covered by the
categorical exclusion granted by subsection (a) may not include
any permanent road construction.
(2) Stream buffers.--A salvage operation covered by the
categorical exclusion granted by subsection (a) shall comply
with the standards and guidelines for stream buffers contained
in the applicable forest plan, unless the standards and
guidelines are modified for a specific salvage operation as
part of a categorical exclusion by the Regional Forester.
(3) Reforestation plan.--A reforestation plan shall be
developed under section 3 of the Act of June 9, 1930 (commonly
known as the ``Knutson-Vandenberg Act'') (16 U.S.C. 576b), as
part of a salvage operation covered by the categorical
exclusion granted by subsection (a).
SEC. 204. CATEGORICAL EXCLUSION TO MEET FOREST PLAN GOALS FOR EARLY
SUCCESSIONAL FORESTS.
(a) Availability of Categorical Exclusion.--A categorical exclusion
is available to the Secretary to develop and carry out a forest
management activity on National Forest System land in any case in which
the primary purpose of the forest management activity is to modify,
improve, enhance, or create early successional forests for wildlife
habitat improvement and other purposes, in accordance with the
applicable forest plan.
(b) Acreage Limitations.--A forest management activity covered by
the categorical exclusion granted by subsection (a) may not contain
harvest units exceeding a total of 5,000 acres.
SEC. 205. ALTERNATIVE AGENCY CONSULTATION PROCEDURES.
(a) Forest Management Activities.--
(1) In general.--Subject to paragraph (2), for each forest
management activity covered by a categorical exclusion granted
by this title, the Secretary shall satisfy the applicable
interagency consultation obligations under section 7 of the
Endangered Species Act of 1973 (16 U.S.C. 1536) by achieving
compliance with the alternative consultation procedures
established in subpart D of part 402 of title 50, Code of
Federal Regulations (or successor regulations).
(2) References.--For purposes of this subsection, all
references contained in subpart D of part 402 of title 50, Code
of Federal Regulations (or successor regulations)--
(A) to the term ``U.S. Environmental Protection
Agency'' or ``EPA'' shall be considered to be a
reference to the Secretary; and
(B) to the term ``FIFRA action'' shall be
considered to be a reference to a forest management
activity covered by a categorical exclusion granted by
this title.
(b) Interim Timelines.--Until the date on which an alternative
consultation agreement under subpart D of part 402 of title 50, Code of
Federal Regulations (or successor regulations), is entered into with
respect to a forest management activity under subsection (a)--
(1) any formal or informal interagency consultation
regarding the forest management activity shall be completed by
not later than the date that is 30 days after the date on which
the Secretary submits a written request for consultation; and
(2) a biological opinion or letter of concurrence, as
appropriate, shall be issued by not later than the date that is
10 days after the date of completion of that consultation.
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