by Jesse Abrams, Research Specialist
Ecological Restoration Institute

What are the Healthy Forests Initiative and Healthy Forests Restoration Act?

The Healthy Forests Initiative (HFI), introduced by President Bush on August 22, 2002, is designed to improve regulatory processes within the USDA Forest Service and Department of Interior Bureau of Land Management (BLM) in order to better achieve goals of reduced catastrophic wildfire risks and improved forest health. The Healthy Forests Restoration Act (HFRA) was passed by Congress and became law in December of 2003. It functions as the legislative enactment of many of the goals of HFI. Both HFI and HFRA have important implications for forest treatments, public participation, and collaboration. In addition, a number of other forest policy changes that are not part of HFRA or HFI have recently been introduced, adding to the complexity of the policy framework under which federal forest management is currently conducted.

Healthy Forests Initiative and other administrative changes

The HFI contains a number of administrative changes (in addition to the legislative changes enacted by HFRA), including new categorical exclusions (CEs) under the National Environmental Policy Act (NEPA) and revised consultation procedures under the Endangered Species Act. Other administrative changes made outside the provisions of HFI have affected administrative appeals on both National Forest System and BLM lands.

NEPA: new categorical exclusions.

One important change made by HFI is the designation of two fire- and fuel reduction-related activities on BLM and national forest lands as eligible for categorical exclusion under NEPA. This means that the covered activities are assumed to have no significant impact on the environment, so neither an Environmental Impact Statement (EIS) nor an Environmental Assessment (EA) is required. Covered activities include such things as prescribed burning and mechanical treatments to reduce forest fuels (FS CE #10) as well post-fire rehabilitation of habitats and infrastructure (FS CE #11). Each of these activities must remain beneath maximum limits for acreage and road construction, and must meet geographic and silvicultural requirements to qualify for the categorical exclusion. Categorical exclusion #10, which applies to fuel reduction thinning of up to 1,000 acres or prescribed burning up to 4,500 acres, is applicable only to activities identified as part of a collaborative framework. Several other categorical exclusions for Forest Service activities have also been recently announced, but are not part of HFI. These include activities such as dead tree salvage, small-scale selective harvesting of live trees, insect and disease control, and the creation or revision of Land and Resource Management Plans – better known as “Forest Plans.”

Appeals changes for USFS and BLM.

Under revised 2003 appeal regulations that were not part of HFI, categorically excluded projects on National Forest land were exempted from requirements to allow citizen administrative appeals. In an appeal, formal administrative review is triggered when an individual or group (called an “appellant”) raises grievances against a planned project. This change had relevance to the two new CEs developed as part of HFI as well as other recently developed CEs. An August 2006 appeals court ruling held that denying opportunities for appeal of categorically excluded projects was not something the Executive Branch could do absent Congressional action, since in 1992 Congress required that appeals be available for all projects on National Forest land. A separate court ruling struck down another appeal requirement, also developed outside of HFI, which had required appellants to have submitted “substantive comments” in the early stages of public scoping in order to be eligible to file an appeal.

The BLM also recently revised its appeals regulations. On BLM lands, potential appellants are restricted to those with a specific interest in the land under consideration and who have raised their specific objection during the public participation opportunities in the decision-making process. Under BLM rules, wildfire-related decisions (including fuel reduction and rehabilitation activities) go into effect as soon as the decision is made, even if the project is being appealed to the Interior Board of Land Appeals, if it is determined that lands are at high risk of resource damage due to wildfire or erosion.

ESA: Streamlined Section 7 consultation.

Finally, an HFI rule change allows trained staff within the U.S. Forest Service, BLM, Bureau of Indian Affairs, or National Park Service to make determinations that a proposed project is “not likely to adversely affect” threatened or endangered species. In the past, this was a duty that could only be administered by the U.S. Fish and Wildlife Service (USFWS) or the National Oceanic and Atmospheric Administration Fisheries Service (NOAA Fisheries). This change applies to projects carried out under the National Fire Plan. Directives issued in 2002 also require USFWS and NOAA Fisheries to consider the potential long-term benefit of fuels reduction projects when assessing possible effects on listed species.

How does the Healthy Forests Initiative affect public involvement?

The major change that HFI makes to public involvement relates to the series of new CEs. Under a CE, a project’s possible environmental impacts are described in a brief “Decision Memo” rather than the lengthier and more detailed EA or EIS. In addition, no alternatives to the proposed action are required to be analyzed under a categorical exclusion.

When a National Forest project is conducted under a CE, the Forest Service is required to do public scoping, commensurate with the scope of the project. They are also required to have a 30-day public notice and comment period for CEs that involve vegetation treatments or prescribed burning. The Decision Memo summarizes the effects analysis and gives a rationale for the decision. This is followed by a 45-day appeal period if comments are received. If any appeals are filed, another 45 days are required to address them; otherwise the project goes forward immediately.

Healthy Forests Restoration Act

H.R. 1904, the Healthy Forests Restoration Act (HFRA), was signed into law on December 3, 2003. A principal purpose of the act is “to reduce wildfire risk to communities, municipal water supplies, and other at-risk Federal land through a collaborative process of planning, prioritizing, and implementing hazardous fuel reduction projects” (H.R. 1904, Section 2(1)). Among other things, HFRA modifies NEPA requirements for authorized projects, calls for the creation of Community Wildfire Protection Plans (CWPPs), authorizes a grant program to support the utilization of woody biomass, and authorizes actions to respond to insect and disease outbreaks. It also provides a “predecisional objection” process (to replace the traditional post-decisional appeals process) for projects carried out under the provisions of the act.

Reduced NEPA alternatives and a predecisional objection process.

Title 1 of HFRA addresses hazardous fuel reduction on federal land. Up to 20 million acres of National Forest and BLM land can be treated under the new authorities, which allow for a reduced number of alternatives required under NEPA, create a predecisional objection process to replace the post-decisional appeals process, and provide guidelines for judicial review of decisions (details of these changes are discussed below). HFRA hazardous fuel reduction projects are limited to wildland-urban interface (WUI) areas, fire-prone forests outside of WUI areas, and other lands where fire hazard poses a threat to human or ecosystem values. The law includes provisions designed to protect existing old-growth trees and encourage the restoration of old-growth forests during covered projects. While the law provides new legal guidelines for HFRA-covered projects, fuel reduction projects can still be conducted outside of HFRA under regular procedures.

Increased collaboration with communities through Community Wildfire Protection Plans.

One of the most significant aspects of HFRA is the direction it provides for communities to collaborate on CWPPs. Under the law, funding for hazardous fuels reduction activities is supposed to be prioritized to communities that have completed CWPPs. Additionally, CWPP direction must be considered as an alternative under NEPA when a project is proposed to take place within 1½ miles of an at-risk community (unless the proposed project is already consistent with CWPP direction). HFRA requires that CWPPs are created collaboratively, with the inclusion of various levels of government, Tribes, and interested members of the public. The nation has seen a flurry of activity on CWPPs since HFRA became law.

How does the Healthy Forests Restoration Act affect public involvement?

HFRA requires the following public involvement activities for each authorized project:

• Public notice of each authorized project;
• A public meeting (with advance notice) during the preparation stage of each authorized project;
• The agency is required to “facilitate collaboration” among State and local governments, Tribes, and interested parties during the preparation of each authorized project;
• Opportunity for public comment during preparation of any EA or EIS. Only those who submit “specific written comments” during the comment period are eligible to file an objection;
• Opportunity for those having submitted prior “specific written comments” to object to the project prior to a final decision, under the formal predecisional objection process.
• Mailing of EIS or EA to those who have requested it previously;
• Public notice of the decision once it is signed.

Development of alternatives and judicial review.

Under the law, NEPA guidelines are modified for hazardous fuel reduction projects, with different requirements for different categories of land:

• HFRA-covered projects outside the WUI, as defined by the applicable CWPP, require the agency to prepare an EA or EIS that analyzes no more than:
  
  1. the proposed action;
  2. a no-action alternative; and
  3. an additional action alternative, if it is proposed during preliminary public involvement. If multiple alternative actions are proposed, the agency is only required to choose one to consider.
• Under HFRA-covered projects within the WUI but greater than 1½ miles from an at-risk community, the agency is not required to consider more than the proposed action and one action alternative in its environmental analysis.
  
• Under HFRA-covered projects that are both within the WUI and less than 1½ miles from an at-risk community, the agency is not required to consider more than the proposed action in its environmental analysis, with one exception: if the proposed action is inconsistent with recommendations made in the relevant CWPP, then a CWPP-consistent alternative must also be considered.

Note that each of the above three scenarios describes minimum requirements for the number of alternatives considered. Agencies may still choose to analyze more than the minimum number of alternatives.

HFRA also provides judicial guidance for lawsuits challenging authorized projects. Specifically:

• Cases may only be heard in the U.S. District court in which the federal land under question is located;
• Judges are encouraged to expedite cases to the extent possible;
• Preliminary injunctions are limited to 60 days, but can be renewed for an unlimited number of subsequent 60-day periods pending review of new information;
• Judges are directed to balance the short- and long-term effects of taking action against the short- and long- term effects of taking no action.

Objection process replaces pre-decisional appeals:

For authorized HFRA projects on National Forest land, the standard administrative appeals process (36 CFR 215) is replaced by a predecisional objection process (36 CFR 218), which occurs before the final decision is made. All HFRA projects are, therefore, exempt from 36 CFR 215 requirements, including the comment period for EAs. However, an EIS for a HFRA project is still required to be issued for a comment period because of separate NEPA requirements. Only those who have previously submitted “specific written comments” on the proposed project are eligible to file an objection. Under this arrangement, an objector has 30 days following the completion of the EA or EIS to raise objections to the proposal. The project cannot go forward until all objections have been responded to within a 30-day time frame. The “reviewing officer” for objections is the supervisor of the official responsible for the decision. For example, objections to a project administered at the district level would be reviewed by the Forest Supervisor. Once all objections have been responded to, the EA or EIS is published and the project is allowed to proceed.

Community Wildfire Protection Planning:

Besides the requirement for agencies to “facilitate collaboration” during public involvement on individual HFRA-covered projects, various provisions in the legislation recognize or provide incentives for collaboratively-developed CWPPs. For example, HFRA states that fuel reduction funds are to be prioritized to those communities that have completed CWPPs. Additionally, CWPP recommendations can modify the proposals that agencies are required to consider, as explained above. HFRA also requires the agencies to consider CWPP recommendations when allocating funds to non-federal land. In this way, CWPPs are envisioned as locally-driven endeavors that affect the prioritization and allocation of federal treatment funds. HFRA also directs the agencies to establish a multiparty monitoring process for tracking the effects of HFRA-covered projects wherever there is sufficient interest.

To fully understand HFI and HFRA and their relationship to existing policies and other laws, please see the information on the following websites. Some processes are very complicated and interrelated, therefore this paper cannot go into all the specifics. Contact agency NEPA personnel for more information.

Special thanks to Geneen Granger and Connie Smith of the US Forest Service-Region 3, and Naureen Rana of the Pinchot Institute, for many helpful reviews and suggestions.

Resources on the Web:

http://www.healthyforests.gov/ - Overview, reports and statistics on HFRA- and HFI- related programs.

http://www.fs.fed.us/emc/applit/index.htm - U.S. Forest Service information on appeals and litigation, including links to regulations on appeals and the HFRA objection process.

http://www.fs.fed.us/emc/nepa/index.htm - U.S. Forest Service information on NEPA, including information on categorical exclusions.

http://www.fs.fed.us/projects/hfi/field-guide/ - U.S. Forest Service Field guide created in 2004 to guide implementation of HFRA and HFI.

http://www.redlodgeclearinghouse.org/legislation/healthyforestsrestorationact.html - Very good explanation of HFRA from a website devoted to natural resource collaboration. Includes links to relevant documents and policies.

http://www.redlodgeclearinghouse.org/legislation/nepa.html - Detailed overview of the NEPA process, with links to important documents and policies.

http://www.safnet.org/policyandpress/cwpp.cfm - Handbook on creating a Community Wildfire Protection Plan, developed by the Society of American Foresters and other organizations.

http://www.governor.state.az.us/fhc/documents/CPR-DevelopCommunWildfirePP.pdf - Guide to creating a CWPP, developed by Logan Simpson Design.