S. 2079 (109th): Forests for Future Generations Act

109th Congress, 2005–2006. Text as of Nov 18, 2005 (Introduced).

Status & Summary | PDF | Source: GPO

II

109th CONGRESS

1st Session

S. 2079

IN THE SENATE OF THE UNITED STATES

November 18, 2005

(for himself, Mr. Thune, Mr. Allard, Mr. Burns, and Mr. Thomas) introduced the following bill; which was read twice and referred to the Committee on Energy and Natural Resources

A BILL

To improve the ability of the Secretary of Agriculture and the Secretary of the Interior to promptly implement recovery treatments in response to catastrophic events affecting the natural resources of Forest Service land and Bureau of Land Management Land, respectively, to support the recovery of non-Federal land damaged by catastrophic events, to assist impacted communities, to revitalize Forest Service experimental forests, and for other purposes.

1.

Short title; table of contents

(a)

Short title

This Act may be cited as the Forests for Future Generations Act.

(b)

Table of contents

The table of contents for this Act is as follows:

Sec. 1. Short title; table of contents.

Sec. 2. Findings.

Sec. 3. Definitions.

TITLE I—Response to catastrophic events on Federal land

Sec. 101. Development of research protocols and use in catastrophic event research projects.

Sec. 102. Catastrophic event recovery evaluations.

Sec. 103. Compliance with National Environmental Policy Act.

Sec. 104. Availability and use of pre-approved management practices.

Sec. 105. Availability and use of alternative arrangements.

Sec. 106. Administrative and judicial review.

Sec. 107. Guidance regarding reforestation in response to catastrophic events.

Sec. 108. Obligations from Trust Fund.

Sec. 109. Revision of land and resource management plans.

Sec. 110. Effect of title.

TITLE II—Restoring landscapes and communities impacted by catastrophic events

Sec. 201. Findings.

Sec. 202. Definitions.

Sec. 203. Community protection and recovery funds.

TITLE III—Experimental forests

Sec. 301. Findings.

Sec. 302. Availability and use of pre-approved management practices on National Forest experimental forests.

Sec. 303. Availability and use of alternative arrangements for projects on National Forest experimental forests.

TITLE IV—General provisions

Sec. 401. Regulations.

Sec. 402. Authorization of appropriations.

2.

Findings

Congress finds the following:

(1)

The number and severity of catastrophic events causing resource damage to Federal land has significantly increased over the last 20 years, and such catastrophic events also create serious adverse environmental, social, and economic consequences for Federal land and adjacent non-Federal land and communities.

(2)

Catastrophic events often devastate forest or rangeland ecosystems and eliminate sources of seed for desired tree and plant species, which—

(A)

delays or even precludes the reestablishment of appropriate forest or plant cover on millions of acres of Federal land;

(B)

increases the susceptibility of the damaged land to wildfire and noxious or harmful species and reduces the economic value of the damaged land's resources;

(C)

increases the susceptibility of adjacent undamaged land to insect infestations, disease, and noxious weeds;

(D)

pollutes municipal water supplies and damages water delivery infrastructure;

(E)

exacerbates sediment production that adversely impacts native fish habitat and soil productivity;

(F)

results in unsafe campgrounds, trails, roads, and other infrastructure; and

(G)

adversely impacts the sustainability of ecosystems and the well-being of adjacent communities.

(3)

Program authorities and funding mechanisms currently available to the Secretary of Agriculture and the Secretary of the Interior to respond to catastrophic events on forested Federal land do not provide for consistent and timely response activities.

(4)

Alternative arrangements approved by the Council on Environmental Quality have been used on an inconsistent basis to respond to catastrophic events on forested Federal land, but, when used in the past, such alternative arrangements have encouraged expedited and successful recovery outcomes.

(5)

A prompt and standardized management response to a catastrophic event, which is also adaptive to the unique characteristics of each catastrophic event, is needed—

(A)

to effectively recover the area damaged by the catastrophic event;

(B)

to minimize the impact on the resources of the area and adjacent communities adversely affected by the catastrophic event; and

(C)

to recover damaged, but still merchantable, material before it losses economic value.

(6)

Reforestation treatments on forested Federal land after a catastrophic event helps to restore appropriate forest cover, which provides multiple renewable resource benefits, including—

(A)

protecting soil and water resources;

(B)

providing habitat for wildlife and fish;

(C)

contributing to aesthetics and enhancing the recreational experience for visitors;

(D)

providing a future source of timber for domestic use;

(E)

ensuring the health and resiliency of affected ecosystems for present and future generations; and

(F)

sequestering carbon.

(7)

According to the Comptroller General, the reforestation backlog for Federal land has increased since 2000 as a result of natural disturbances, such as wildland fires, insect infestations, and diseases.

(8)

Additional scientific and monitoring information is needed regarding the effectiveness of recovery treatments to improve subsequent recovery proposals in response to future catastrophic events.

(9)

State, tribal, and local governments, local communities, and other entities play a critical role in restoring landscapes damaged by a catastrophic event and in reducing the risks associated with the catastrophic event.

(10)

Greater resources and adaptive arrangements must be made available to land managers to facilitate the prompt implementation of recovery treatments, including reforestation, following catastrophic events.

3.

Definitions

In this Act:

(1)

Alternative arrangements

The term alternative arrangements means the authority granted to the Council on Environmental Quality under section 1506.11 of title 40, Code of Federal Regulations, to grant alternative arrangements for compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), including the authority to—

(A)

reduce processing times for an environmental impact statement; or

(B)

if warranted by the emergency, condense the preparation and processing of an environmental impact statement.

(2)

Burned area emergency response

The term burned area emergency response means the process used by the Secretary concerned to plan and implement emergency stabilization actions on Federal land in response to a catastrophic event in order to minimize threats to life or property or to stabilize and prevent unacceptable degradation to natural and cultural resources resulting from the effects of the catastrophic event.

(3)

Catastrophic event

The term catastrophic event means any natural disaster or any fire, flood, or explosion, regardless of cause, that the Secretary determines has caused or will cause damage of significant severity and magnitude to Federal land, or for purposes of title II, non-Federal land.

(4)

Catastrophic event recovery

The term catastrophic event recovery, with respect to an area of Federal land damaged by a catastrophic event, means—

(A)

if the catastrophic event involved fire, the rehabilitation and restoration activities (other than any emergency stabilization treatments undertaken as part of the burned area emergency response) that are undertaken on the damaged Federal land, including any infrastructure or facilities thereon, in response to the catastrophic event;

(B)

if the catastrophic event did not involve fire, the emergency stabilization and rehabilitation and restoration activities that are undertaken on the damaged Federal land, including infrastructure or facilities thereon, in response to the catastrophic event; or

(C)

the reforestation or revegetation of the damaged Federal land in response to the catastrophic event using, to the extent practicable and preferable, native or beneficial plants to avoid creation of plantation forests and the recovery of trees on the damaged Federal land through the use of timber harvesting in a manner consistent with the applicable land and resource management plan.

(5)

Catastrophic event recovery evaluation

The term catastrophic event recovery evaluation, with respect to an area of Federal land damaged by a catastrophic event, means an evaluation of the damaged Federal land that is conducted in accordance with section 102 for the purpose of developing the catastrophic event recovery proposal for the area.

(6)

Catastrophic event recovery proposal

The term catastrophic event recovery proposal means the list and brief description of catastrophic event recovery projects, catastrophic event research projects, and pre-approved management practices that are—

(A)

prepared or identified as part of the catastrophic event recovery evaluation of an area of Federal land damaged by a catastrophic event; and

(B)

proposed to be undertaken to facilitate the catastrophic event recovery of the area or evaluate the effects and effectiveness of such recovery efforts.

(7)

Catastrophic event recovery project

The term catastrophic event recovery project means an individual activity or a series of activities identified in a catastrophic event recovery proposal for an area of Federal land damaged by a catastrophic event and proposed to be undertaken in response to the catastrophic event to promote catastrophic event recovery.

(8)

Catastrophic event research project

The term catastrophic event research project means a scientifically designed study of the effects and effectiveness of—

(A)

any catastrophic event recovery projects undertaken in an area of land damaged by a catastrophic event; and

(B)

any emergency stabilization treatments undertaken as part of a burned area emergency response in the area of land damaged by a catastrophic event.

(9)

Community wildfire protection plan

The term community wildfire protection plan has the meaning given that term in section 101(3) of the Healthy Forest Restoration Act of 2003 (16 U.S.C. 6511(3)).

(10)

Federal land

The term Federal land means land in the National Forest System and land managed by the Bureau of Land Management. The term does not include any land contained in a component of the National Wilderness Preservation System or designated as a national monument.

(11)

Indian tribe

The term Indian tribe has the meaning given the term in section 4 of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450b).

(12)

Land and resource management plan

The term land and resource management plan means—

(A)

a land and resource management plan developed for a unit of the National Forest System under section 6 of the Forest and Rangeland Renewable Resources Planning Act of 1974 (16 U.S.C. 1604); or

(B)

a land use plan developed for an area of the public land under section 202 of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1712).

(13)

Land-grant colleges and universities

The term land-grant colleges and universities has the meaning given that term in section 1404(11) of the National Agricultural Research, Extension, and Teaching Policy Act of 1977 (7 U.S.C. 3103(11)).

(14)

Landscape assessment

The term landscape assessment means an assessment describing catastrophic event conditions and recovery needs and opportunities on non-Federal land affected by a catastrophic event and including a list of proposed special recovery projects to address those needs and opportunities.

(15)

National forest system

The term National Forest System has the meaning given that term in section 11(a) of the Forest and Rangeland Renewable Resources Planning Act of 1974 (16 U.S.C. 1609(a)).

(16)

Natural disaster

The term natural disaster includes a 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.

(17)

Pre-approved management practice

The term pre-approved management practice means a management practice identified by the Secretary concerned under section 104(a) that may be immediately implemented as part of a catastrophic event recovery project or catastrophic event research project to facilitate the catastrophic event recovery of an area of Federal land damaged by a catastrophic event.

(18)

Secretary concerned

The term Secretary concerned means—

(A)

the Secretary of Agriculture, with respect to National Forest System land; and

(B)

the Secretary of the Interior, with respect to land managed by the Bureau of Land Management, including land held for the benefit of an Indian tribe.

(19)

Special recovery project

The term special recovery project means an individual activity or a series of activities proposed to be undertaken to rehabilitate, repair, and restore non-Federal land damaged by a catastrophic event, community infrastructure and facilities on the land, and economic, social, and cultural conditions affected by the catastrophic event.

I

RESPONSE TO CATASTROPHIC EVENTS ON FEDERAL LAND

101.

Development of research protocols and use in catastrophic event research projects

(a)

Development of protocols; purpose

For the purpose of collecting and analyzing scientific information about the effectiveness and ecological impacts of catastrophic event recovery projects and emergency stabilization treatments undertaken as part of a burned area emergency response to increase the long-term benefits of management activities and to decrease short-term impacts, the Secretary concerned shall develop research protocols consisting of a research approach that is specifically designed to improve knowledge, understanding, and predictive capabilities, including an appropriate and scientifically sound experimental design or set of sampling procedures, and accompanying methods of data analysis and interpretation.

(b)

Peer review required

The research protocols developed under subsection (a), and any subsequent modification thereof, shall be subject to independent peer review by scientific and land management experts.

(c)

Time for completion; modification

The research protocols required by this section shall be submitted to Congress not later than 180 days after the date of enactment of this Act. The Secretary concerned may modify the research protocols, as the Secretary determines necessary, after their submission to Congress. The Secretary concerned shall notify Congress regarding any such modification.

(d)

Catastrophic event research projects

In accordance with the research protocols developed under this section, the Secretary concerned may conduct one or more catastrophic event research projects in an area of land damaged by a catastrophic event. The Secretary may develop a proposed catastrophic event research project as part of a catastrophic event recovery proposal or develop a catastrophic event research project independently of the catastrophic event recovery proposal during the catastrophic event recovery in response to changing conditions in the area damaged by the catastrophic event.

(e)

Public access

(1)

Protocols

The Secretary concerned shall make the research protocols developed under subsection (a), including any modification thereof, publicly available, in a form determined to be appropriate by the Secretary.

(2)

Research results

After completion of the independent peer review required by subsection (b), the Secretary concerned shall make the results of catastrophic event research projects publicly available, in a form determined to be appropriate by the Secretary.

(f)

Forest health partnerships

(1)

In general

In developing and using the research protocols required by this section, the Secretary concerned shall enter into at least 1 cooperative agreement with 1 or land-grant colleges or universities in each Forest Service Region to form forest health partnerships, including regional institutes, to utilize the education, research, and outreach capacity of land-grant colleges and universities to address the recovery of forested land after a catastrophic event.

(2)

Alignment with cooperative ecosystem studies units

A forest health partnership may be aligned with the current network of Cooperative Ecosystem Studies Units.

102.

Catastrophic event recovery evaluations

(a)

Commencement

(1)

Evaluation required

In response to a catastrophic event affecting 1,000 or more acres of Federal land, the Secretary concerned shall conduct a catastrophic event recovery evaluation of the damaged Federal land.

(2)

Evaluation authorized

If a catastrophic event affects more than 250 acres of Federal land, but less than 1,000 acres, the Secretary concerned is authorized, but not required, to conduct a catastrophic event recovery evaluation of the damaged Federal land.

(b)

Completion

When a catastrophic event recovery evaluation is required to be conducted under subsection (a), the Secretary concerned shall commence and complete the catastrophic event recovery evaluation not later than 30 days after the conclusion of the catastrophic event in order to facilitate prompt—

(1)

decision-making with regard to the catastrophic event recovery of the Federal land damaged by the catastrophic event; and

(2)

implementation of catastrophic event recovery projects on the damaged Federal land.

(c)

Elements of Catastrophic Event Evaluation

In conducting the catastrophic event recovery evaluation for an area of Federal land damaged by a catastrophic event, the Secretary concerned shall prepare the following:

(1)

A description of catastrophic event conditions on the damaged Federal land, recovery needs and opportunities, and the areas where management intervention would be helpful—

(A)

to repair, maintain, or improve resource values;

(B)

to maintain infrastructure;

(C)

to foster reforestation or other recovery of the damaged Federal land; and

(D)

to achieve the goals and objectives of the applicable land and resource management plan.

(2)

A preliminary determination of any catastrophic event research projects that best fit the circumstances of the particular catastrophic event environment or would enhance scientific understanding relevant to the damaged area.

(3)

A catastrophic event recovery proposal containing possible catastrophic event recovery projects and catastrophic event research projects for the damaged area and describing the anticipated size and scope of these projects.

(4)

One or more maps detailing the area of damaged Federal land and the location of catastrophic event recovery proposals.

(5)

A preliminary estimate of the funding that would be needed to complete the catastrophic event recovery projects and catastrophic event research projects contained in the catastrophic event recovery proposal.

(6)

A preliminary estimate of the receipts to be derived from the catastrophic event recovery projects and catastrophic event research projects contained in the catastrophic event recovery proposal.

(7)

A preliminary schedule showing the timing of possible catastrophic event recovery projects and catastrophic event research projects by fiscal year, assuming funding is available to undertake the projects.

(d)

Use of Pre-Approved Management Practices or Alternative Arrangements

(1)

Determination

In addition to complying with the requirements specified in subsection (c) for each catastrophic event recovery evaluation, the Secretary concerned shall make a determination of—

(A)

whether or not any pre-approved management practices can be immediately implemented under section 104 to facilitate the catastrophic event recovery of the area covered by the catastrophic event recovery evaluation; and

(B)

whether or not any catastrophic event recovery project or catastrophic event research project, or portion of such a project, contained in the catastrophic event recovery proposal should be developed and carried out using the alternative arrangements authorized by section 105.

(2)

Factors

In making any determination under paragraph (1)(B) to develop and carry out a catastrophic event recovery project or catastrophic event research project, or portion of such a project, using alternative arrangements under section 105, the Secretary concerned shall consider at a minimum the following:

(A)

The necessity of promptly responding to the catastrophic event on the damaged Federal land.

(B)

The recovery needs and opportunities identified under subsection (c)(1) with respect to the damaged Federal land.

(C)

The lack of pre-approved management practices applicable to the damaged Federal land.

(D)

The threat to public health and safety.

(E)

The likelihood of substantial loss of adjacent private and public property or other substantial economic losses.

(3)

Notification and consultation

The Secretary concerned shall make the determinations under paragraph (1) after notification of and in consultation with the Council on Environmental Quality, but the determination remains in the sole discretion of the Secretary.

(e)

Interdisciplinary Approach

To conduct the catastrophic event recovery evaluation of an area of Federal land damaged by a catastrophic event, the Secretary concerned shall use a systematic, interdisciplinary approach that insures the integrated use of appropriate natural and social sciences.

(f)

Coordination With Other Activities

The Secretary concerned may combine the preparation of a catastrophic event recovery evaluation of Federal land with the preparation of a landscape assessment for non-Federal land in the vicinity of the damaged Federal land prepared under section 203(c)(1)(A).

(g)

Public collaboration

To encourage meaningful participation during the preparation of catastrophic event recovery projects, the Secretary concerned shall facilitate collaboration among State and local governments, Indian tribes, land-grant colleges and universities, and interested persons during the preparation of catastrophic event recovery evaluations and catastrophic event recovery proposals.

(h)

Public notice

(1)

Notice of evaluation

The Secretary concerned shall provide public notice of each catastrophic event recovery evaluation, including the catastrophic event recovery proposal prepared as part of the evaluation. The notice shall be provided in a form determined to be appropriate by the Secretary concerned, such as publication in the Federal Register.

(2)

Notice of public meetings

The Secretary concerned shall provide notice of public meetings conducted in connection with a catastrophic event recovery evaluation and the availability of preliminary analyses or documents prepared as part of the evaluation. The notice shall be provided at such times and in such a manner as the Secretary concerned considers appropriate.

103.

Compliance with National Environmental Policy Act

(a)

Compliance Required

Except as provided in subsection (b), the Secretary concerned shall comply with the National Environmental Policy Act of 1969 (42 U.S.C. 4331 et seq.), its implementing regulations, and other applicable laws in designing and conducting catastrophic event recovery projects and catastrophic event research projects.

(b)

Satisfaction of NEPA Requirements

The list of pre-approved management practices prepared under subsection (a) of section 104, the use of pre-approved management practices in the manner provided in such section as part of the catastrophic event recovery of an area of Federal land damaged by a catastrophic event, and the use of alternative arrangements in the manner provided in section 105 to design or conduct a catastrophic event recovery project or catastrophic event research project, or portion of such a project, are deemed to satisfy the requirements of section 102 of the National Environmental Policy Act of 1969 (42 U.S.C. 4332) and its implementing regulations.

104.

Availability and use of pre-approved management practices

(a)

List of Available Pre-Approved Management Practices

(1)

Preparation of list

The Secretary concerned shall prepare a list of management practices that may be immediately implemented as part of a catastrophic event recovery project or catastrophic event research project to facilitate the catastrophic event recovery of an area of Federal land damaged by a catastrophic event.

(2)

Rule making

The list of pre-approved management practices shall be prepared using notice and comment rule making under section 553 of title 5, United States Code.

(3)

Peer review required

Before a management practice may be included on the list of pre-approved management practices, the management practice shall be subject to independent peer review by scientific and land management experts. The results of the review shall be available to the public during the comment period.

(4)

Revision or amendment

The Secretary concerned may amend or revise the list of pre-approved management practices as necessary whenever new scientific and managerial information becomes available. Paragraphs (2) and (3) shall apply to the amendment or revision process.

(b)

Use of Pre-Approved Management Practices

Until the end of the 2-year period beginning on the date on which the catastrophic event recovery evaluation is completed for an area of Federal land damaged by a catastrophic event, the Secretary concerned may implement and carry out pre-approved management practices to facilitate the catastrophic event recovery of the area.

(c)

Effect of Termination of Period

After the expiration of the applicable time period under subsection (b), a pre-approved management practice may not be initiated under the authority of such subsection for an area of Federal land damaged by a catastrophic event. Any pre-approved management practice initiated before the date of the expiration of the applicable time period may not be continued after that date.

(d)

Use for Certain Activities Prohibited

(1)

Road construction

A pre-approved management practice may not authorize any permanent road building. Any temporary road constructed as part of a pre-approved management practice shall be obliterated upon conclusion of the practice and the road area restored to the extent practicable.

(2)

Timber harvesting

Timber harvesting carried out as part of a pre-approved management practice shall be limited to trees—

(A)

that are already down, dead, broken, or severely root sprung;

(B)

regarding which mortality is highly probable within five years after the end of the catastrophic event;

(C)

that are required to be removed for worker or public safety; or

(D)

that are not specified for snag retention by the applicable land and resource management plan.

(e)

Required Consultation

(1)

ESA consultation

(A)

In general

In the case of the proposed use of a pre-approved management practice under subsection (b), the Secretary concerned may use the emergency procedures described in section 402.05 of title 50, Code of Federal Regulations, to comply with section 7 of the Endangered Species Act of 1973 (16 U.S.C. 1536).

(B)

Incidental takings

(i)

In general

At the conclusion of the consultation, the statement required by section 7(b)(4) of the Endangered Species Act of 1973 (16 U.S.C. 1536(b)(4)) shall be issued for any incidental taking that may occur while using the pre-approved management practice.

(ii)

Application

The statement issued under clause (i) shall—

(I)

be effective beginning on the date the Secretary concerned initiates the practice; and

(II)

apply to all persons assisting or cooperating with the Secretary in using the practice.

(C)

Deadline for completion

If the consultation required under this subsection is not completed by the date on which the decision document is issued under subsection (f), the applicable biological assessment from the land management agency shall be considered to be sufficient for the purposes of section 7 of the Endangered Species Act of 1973 (16 U.S.C. 1536).

(2)

Other required consultation

Any consultation required under other laws, such as the National Historic Preservation Act (16 U.S.C. 470 et seq.) or the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.), may proceed simultaneously with the implementation of a pre-approved management practice. Results of consultation shall be immediately incorporated into the practice, to the extent feasible, practical, and consistent with the response, recovery, and rehabilitation objectives of the project.

(f)

Issuance of Decision Document

Not later than 30 days after the date on which the Secretary concerned makes the determination under section 102(d) to use a pre-approved management practice to facilitate the catastrophic event recovery of an area of Federal land damaged by a catastrophic event, the Secretary concerned shall issue a concise decision document that contains—

(1)

a description of the pre-approved management practice to be implemented;

(2)

the rationale for the agency decision;

(3)

an economic analysis and justification; and

(4)

an analysis of the environmental effects of the pre-approved management practice and how such effects will be minimized or mitigated consistent with the applicable land and resource management plan.

(g)

Immediate Implementation

The Secretary concerned shall implement a pre-approved management practice immediately after the issuance of the decision document under subsection (f), subject only to the availability of funds for the practice.

(h)

Monitoring

To monitor the implementation of a pre-approved management practice, the Secretary concerned may establish a third-party monitoring group, as determined to be appropriate by the Secretary.

105.

Availability and use of alternative arrangements

(a)

Limited Consideration of Alternatives

If the Secretary concerned determines under section 102(d) to utilize alternative arrangements to conduct a catastrophic event recovery project or catastrophic event research project, or portion of such a project, the Secretary concerned is not required to study, develop, or describe more than the proposed agency action and the alternative of no action in designing that project or the portion of the project for which the alternative arrangements are utilized.

(b)

Use for Certain Activities Prohibited

(1)

Road construction

Alternative arrangements under this section may not be used to design or conduct a catastrophic event recovery project or catastrophic event research project, or portion of such a project, that provides for any permanent road building. Any temporary road constructed as part of the project shall be obliterated upon completion of the project and the road area restored to the extent practicable.

(2)

Timber harvesting

Timber harvesting carried out as part of a catastrophic event recovery project or catastrophic event research project, or portion of such a project, for which alternative arrangements under this section were used shall be limited to trees—

(A)

that are already down, dead, broken, or severely root sprung;

(B)

regarding which mortality is highly probable;

(C)

that are required to be removed for worker or public safety; or

(D)

that are not specified for snag retention by the applicable land and resource management plan.

(c)

Required Consultation

(1)

ESA consultation

(A)

In general

In the case of a catastrophic event recovery project or catastrophic event research project, or portion of such a project, for which alternative arrangements under this section are used, the Secretary concerned may use the emergency procedures described in section 402.05 of title 50, Code of Federal Regulations, to comply with section 7 of the Endangered Species Act of 1973 (16 U.S.C. 1536).

(B)

Incidental takings

(i)

In general

At the conclusion of the consultation, the statement required by section 7(b)(4) of the Endangered Species Act of 1973 (16 U.S.C. 1536(b)(4)) shall be issued for any incidental taking that may occur under the project.

(ii)

Application

The statement issued under clause (i) shall—

(I)

be effective beginning on the date the Secretary concerned initiates action under the project; and

(II)

apply to all persons assisting or cooperating with the Secretary under the project.

(C)

Deadline for completion

If the consultation required under this subsection is not completed by the date on which the decision document is issued under subsection (d), the applicable biological assessment from the land management agency shall be considered to be sufficient for the purposes of section 7 of the Endangered Species Act of 1973 (16 U.S.C. 1536).

(2)

Other required consultation

Any consultation required under other laws, such as the National Historic Preservation Act (16 U.S.C. 470 et seq.) or the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.), may proceed simultaneously with the design of a catastrophic event recovery project or catastrophic event research project, or portion of such a project, for which alternative arrangements under this section are used. Results of consultation shall be immediately incorporated into the project, to the extent feasible, practical, and consistent with the response, recovery, and rehabilitation objectives of the project.

(d)

Completion of Alternative Arrangements and Issuance of Decision Document

Not later than 90 days after the date on which the Secretary concerned makes the determination under section 102(d) to develop and carry out a catastrophic event recovery project or catastrophic event research project, or portion of such a project, using alternative arrangements, the Secretary concerned shall—

(1)

complete the alternative arrangements for that catastrophic event recovery project or catastrophic event research project, or portion thereof, under this section; and

(2)

issue a concise decision document that contains—

(A)

the rationale for the agency decision;

(B)

an economic analysis and justification; and

(C)

an analysis of the environmental effects of the project and how such effects will be minimized or mitigated consistent with the applicable land and resource management plan.

(e)

Immediate Implementation

In the case of a catastrophic event recovery project or catastrophic event research project, or portion of such a project, for which the alternative arrangements authorized by this section are used, the Secretary concerned shall implement the project, or portion of the project, immediately after the issuance of the decision document under subsection (d), subject only to the availability of funds for the project.

(f)

Monitoring

To monitor a catastrophic event recovery project or catastrophic event research project, or portion of such a project, for which the alternative arrangements authorized by this section were used, the Secretary concerned may establish a third-party monitoring group, as determined to be appropriate by the Secretary.

106.

Administrative and judicial review

(a)

Administrative Review Generally

Except as provided in subsection (b), nothing in this title affects—

(1)

the notice, comment, and appeal requirements of section 322 of the Department of the Interior and Related Agencies Appropriations Act, 1993 (Public 102-381; 16 U.S.C. 1612 note) and section 215 of title 36, Code of Federal Regulations; or

(2)

the consideration or disposition of any legal action brought with respect to such requirements.

(b)

Predecisional Administrative Review

The predecisional administrative review process established by the Secretary of Agriculture by regulation under section 105 of the Healthy Forests Restoration Act of 2003 (16 U.S.C. 6515), and the Department of the Interior administrative hearings and appeals procedures referred to in subsection (c)(1)(B) of such section, shall serve as the sole means by which a person can seek administrative review regarding—

(1)

the proposed use of a pre-approved management practice under section 104; or

(2)

a catastrophic event recovery project or catastrophic event research project, or portion of such a project, for which the alternative arrangements under section 105 are used.

(c)

Judicial Review

(1)

In general

Section 106 of the Healthy Forests Restoration Act of 2003 (16 U.S.C. 6516) shall apply with respect to the implementation of a pre-approved management practice under section 104 or a catastrophic event recovery project or catastrophic event research project regarding which the applicable administrative review process has been exhausted.

(2)

Attorney fees

In any proceeding for judicial review of agency action under this subsection, attorney fees awarded to a prevailing party may not exceed the hourly rates established in section 3006A of title 18, United States Code.

(d)

Mediation and Binding Arbitration

(1)

In general

In lieu of the administrative and judicial processes provided for in subsections (b) and (c), the Secretary concerned is encouraged to establish procedures for voluntary mediation and binding arbitration that would accelerate the implementation of catastrophic event recovery projects.

(2)

Requirements

Any procedures established under paragraph (1) shall provide that—

(A)

the Federal Government shall bear all costs of any mediation or binding arbitration proceedings;

(B)

the limitation on attorney fees under subsection (c)(2) shall not apply to the proceedings;

(C)

the applicable local government, any persons economically impacted by the catastrophic event recovery project, and any potential litigants shall be allowed to equally participate in the proceedings;

(D)

the proceedings shall be completed within 30 days of the date on which the proceedings were initiated; and

(E)

the mediator shall be mutually acceptable to all parties to the proceedings.

107.

Guidance regarding reforestation in response to catastrophic events

Not later than 180 days after the date of enactment of this Act, the Secretary concerned shall—

(1)

standardize the collection, reporting, and review procedures for data regarding more aggressive, expedited, and comprehensive reforestation in response to catastrophic events by clarifying agency-wide guidance and developing standard protocols for determining when and how reforestation can be best achieved as part of the response to catastrophic events; and

(2)

clarify agency-wide guidance regarding reforestation in response to catastrophic events to ensure that such guidance is consistent with agency goals and budget constraints.

108.

Obligations from trust fund

Section 303(d) of Public Law 96–451 (16 U.S.C. 1606a(d)) is amended—

(1)

by redesignating paragraphs (1) and (2) as subparagraphs (A) and (B), respectively, and indenting appropriately;

(2)

by striking the (d) The Secretary of Agriculture and inserting the following:

(d)

Obligations from trust fund

(2)

Reforestation and timber stand improvements

The Secretary of Agriculture

;

(3)

by inserting before paragraph (2) (as designated by paragraph (2)) the following:

(1)

Definitions

In this subsection:

(A)

Appropriate forest cover

The term appropriate forest cover means the species of trees, the degree of stocking, the rate of growth, and the conditions of a stand designed to secure the maximum benefits of multiple use sustained yield management.

(B)

Catastrophic event

The term catastrophic event means any natural disaster or any fire, flood, or explosion, regardless of cause, that the Secretary of Agriculture determines has caused or will cause damage of significant severity and magnitude to National Forest System land.

(C)

Natural disaster

The term natural disaster includes a 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.

; and

(4)

in paragraph (2) (as designated by paragraph (2))—

(A)

in subparagraph (A) (as redesignated by paragraph (1))—

(i)

by inserting , subject to subparagraph (B), after reforestation; and

(ii)

by striking and at the end;

(B)

by redesignating subparagraph (B) (as redesignated by paragraph (1)) as subparagraph (C); and

(C)

by inserting after subparagraph (A) (as redesignated by paragraph (1)) the following:

(B)

reforestation treatment to restore appropriate forest cover on National Forest System land that is capable of growing, and available for, commercial timber harvest and that has been affected by a catastrophic event if—

(i)

the need for the reforestation treatment is identified in the report submitted to Congress under section 3(d)(1) of the Forest and Rangeland Renewable Resources Planning Act of 1974 (16 U.S.C. 1601(d)(1)); and

(ii)

the reforestation treatment occurs within 5 years of—

(I)

if there is no harvest activity following the wildfire or the nonfire natural disturbance event, the wildfire or a nonfire natural disturbance event;

(II)

if a regeneration harvest is the final cut in a stand in a disturbed area, the regeneration harvest; or

(III)

if a salvage harvest is the final cut in a stand in a disturbed area, the salvage harvest; and

.

109.

Revision of land and resource management plans

During the 3-year period beginning on the date of enactment of this Act, the Secretary concerned shall ensure that any revision to a land and resource management plan address forest management and recovery goals after a catastrophic event.

110.

Effect of title

(a)

Use of other authorities

Nothing in this title affects the use by the Secretary concerned of other statutory or administrative authority, including categorical exclusions adopted to implement the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), to conduct a catastrophic event recovery project or catastrophic event research project, or portion of such a project, that is not conducted using the alternative arrangements authorized by section 105.

(b)

Advisory committees

The Federal Advisory Committee Act (5 U.S.C. App.) and title XVIII of the Food and Agriculture Act of 1977 (7 U.S.C. 2281 et seq.) shall not apply to—

(1)

the independent peer review provided by scientific and land management experts under section 101(b);

(2)

the monitoring process under section 104(h) or 105(f); and

(3)

the preparation of a catastrophic event recovery evaluation or catastrophic event recovery proposal.

II

Restoring landscapes and communities impacted by catastrophic events

201.

Findings

Congress finds that—

(1)

there is a relationship between poverty and Federal land ownership, with households below the poverty level being located in close proximity to Federal land;

(2)

households below the poverty level are more likely to be located in areas with low or no wildfire or other catastrophic event response capabilities; and

(3)

catastrophic events disproportionately affect low-income communities in the short term and long term by negatively impacting economic activities such as recreation, timber and nontraditional forest product utilization, fisheries, and tourism.

202.

Definitions

In this title:

(1)

Eligible entity

The term eligible entity means a State Forester or equivalent State official, an Indian tribe, local government, community-based organization, or other person.

(2)

Excess receipts

The term excess receipts means any National Forest Fund receipts derived from the sale of timber under section 105(b)(2), that are identified by the Secretary for the fiscal year as amounts in excess of the amounts retained onsite for activities included in an applicable catastrophic event recovery project.

(3)

Fund

The term fund means a community protection and recovery fund established under section 203(a).

(4)

Secretary

The term Secretary means the Secretary of Agriculture.

203.

Community protection and recovery funds

(a)

Establishment

The Secretary shall establish within the Treasury a community protection and recovery fund for each catastrophic event recovery project, consisting of such amounts as are transferred to the fund under subsection (b).

(b)

Transfers to Fund

There are appropriated to each fund amounts equivalent to 5 percent of excess receipts.

(c)

Use

(1)

In general

Subject to paragraphs (2) and (3), amounts in the fund shall be available, without further appropriation, to the Secretary, in cooperation with any eligible entities, for—

(A)

the preparation of a landscape assessment for non-Federal land affected by a catastrophic event;

(B)

assistance in the preparation of a community wildfire protection plan or related plan; and

(C)

implementation of special recovery projects identified in the landscape assessment or community wildfire protection plan, community assessment, or community action plan, including—

(i)

revegetation, tree planting, and other management practices that the Secretary determines to be appropriate;

(ii)

developing products from and markets for fire timber harvest and remaining forest resources;

(iii)

training for the local workforce;

(iv)

repair of public facilities, such as water systems, roads, bridges and trails, affected by a catastrophic event; and

(v)

any other activities that the Secretary determines to be necessary to undertake the special recovery project.

(2)

Preference

In making expenditures from a fund, the Secretary shall give priority to low-income communities.

(3)

Limitation

Amounts in a fund shall only be available for expenditure for a specific catastrophic event during the 3-year period beginning on the date on which the catastrophic event occurs.

(d)

Reprogramming

Amounts deposited in a fund or eligible for deposit in a fund shall not be subject to transfer or reprogramming for wildland fire management or any other emergency purposes.

III

Experimental forests

301.

Findings

Congress finds the following:

(1)

The experimental forests established pursuant to section 4 of the Forest and Rangeland Renewable Resources Research Act of 1978 (16 U.S.C. 1643) or the organic administrative authorities of the Secretary of Agriculture (16 U.S.C. 551) serve as a natural laboratory for the Forest Service to evaluate management practices generally and specific responses to catastrophic events that can be eventually used throughout the National Forest System.

(2)

To build upon the knowledge base to be developed using catastrophic events research projects conducted under title I, the Secretary of Agriculture should be authorized to use the same authorities provided under sections 104 and 105 to design and carry out projects in the experimental forests.

302.

Availability and use of pre-approved management practices on National Forest experimental forests

Management practices included on the list of pre-approved management practices prepared under subsection (a) of section 104 may be implemented, in the manner provided by such section, in an experimental forest established pursuant to section 4 of the Forest and Rangeland Renewable Resources Research Act of 1978 (16 U.S.C. 1643) or the organic administrative authorities of the Secretary of Agriculture (16 U.S.C. 551).

303.

Availability and use of alternative arrangements for projects on National Forest experimental forests

Section 105 shall apply with respect to any individual activity or a series of activities proposed to be undertaken in an experimental forest established pursuant to section 4 of the Forest and Rangeland Renewable Resources Research Act of 1978 (16 U.S.C. 1643) or the organic administrative authorities of the Secretary of Agriculture (16 U.S.C. 551).

IV

General provisions

401.

Regulations

The Secretary concerned is not required to promulgate regulations to implement this Act.

402.

Authorization of Appropriations

There are authorized to be appropriated such sums as are necessary to carry out this Act.