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Healthy Forests Restoration Act of 2003 - Continued

Location: Washington, DC



Ms. CANTWELL. Mr. President, I call up amendment No. 2038, as modified.

The PRESIDING OFFICER. The clerk will report.

The assistant legislative clerk read as follows:

The Senator from Washington (Ms. CANTWELL) proposes an amendment numbered 2038, as modified.

Ms. CANTWELL. Mr. President, I ask unanimous consent that the reading of the amendment be dispensed with.

The PRESIDING OFFICER. Without objection, it is so ordered.

The amendment is as follows:

(Purpose: To require the Comptroller General to study the costs and benefits of the analysis of alternatives in environmental assessments and environmental impact statements)

In section 104, strike subsection (b).

Ms. CANTWELL. Mr. President, I ask unanimous consent that Senator Jeffords be added as a cosponsor to the amendment.

The PRESIDING OFFICER. Without objection, it is so ordered.

Ms. CANTWELL. I thank the Chair.

Mr. President, I know the hour is already late for some Members. I believe we have had much time to discuss this legislation, but I do believe there are a couple of important amendments that are still yet to come that raise issue that are important for Members to understand. I am concerned that the underlying bill amends the National Environmental Policy Act, a benchmark statute that has been on the books since 1969. Because this is an important act, I believe I must stand up and offer this amendment.

I take great pride in the fact that I sit at the desk of Senator Henry M. Jackson who served as chairman of the Senate Interior Committee for many years. He was the prime sponsor and mover behind the National Environmental Policy Act, a landmark piece of national legislation that sets the tone for how our environment should be treated as we review the work of Federal agencies' actions.

I know my colleagues from California, Oregon, and Idaho are trying to move forward on hazardous fuel reduction projects. I am asking them to consider the impact of the major changes that bill proposes to make to the National Environmental Policy Act process with respect to hazardous fuels reduction projects. In addition, the bill before us leaves the door open for further changes in the National Environmental Policy Act in other areas besides hazardous fuel reduction, and that concerns me.

First of all, I really do believe that at the heart of this problem associated with hazardous fuels reduction is funding. It was the case in 2000 when we had a lot of fires throughout the West, and the Western Governors Association came together and said: Let's fund a hazardous fuel reduction account. The problem with the current practice is that Congress provides money for hazardous fuels reduction projects, but the funds are taken out of these accounts and used to fight fires, and the projects are not funded. In addition, we are not providing enough funding for hazardous fuels reduction projects.

I estimate that we need approximately $1 billion a year to do adequate hazardous fuel reduction in wildland-urban interface areas. Unfortunately, the President's budget request for this fiscal year included approximately $300 million for this purpose.

I think all of my colleagues can agree that we have to come together to authorize and appropriate adequate resources to prevent fires ahead of time. We should not short-fund hazardous fuels reduction and take those limited resources to fight fires when they happen.

I applaud my colleagues for their leadership on this issue, particularly the Senator from Oregon, and for putting this legislation forward.

My colleagues on both sides of the aisle are also trying to bring up the fact that they think it is important that hazardous fuel reduction projects proceed smoothly. That is why I would like to point out to my colleagues that the Forest Service does provide categorical exclusions for hazardous fuels projects. According to the U.S. General Accounting Office, sixty percent of projects in 2001-2002 received categorical exclusions. These projects did not require the agency to prepare an environmental impact statement (EIS) or an environmental assessment.

A second group, about 34 percent, has been approved via environmental assessments, which are much shorter than an EIS.
Only 6 percent of the projects have had to go through the full EIS process.

These figures are outlined in an October 2003 GAO report that clearly shows that the National Environmental Policy Act has not held up progress on hazardous fuel reduction. What has held up progress is the failure to provide adequate funding in this area.

So I ask my colleagues why should we change the National Environmental Policy Act, a landmark piece of Federal legislation that has protected the environment since 1969?

Some of my colleagues have suggested that the law's requirement that the Forest Service consider alternatives has delayed hazardous fuels reduction projects. However, numerous court cases have held that in some circumstances two or three action alternatives are adequate to comply with NEPA. Specifically, the Ninth Circuit held that in the cases of Friends of Southeast's Future v. U.S. Forest Service and the Muckleshoot Indian Tribe v. U.S. Forest Service, that two or three alternatives, in addition to the preferred alternative and the no-action alternative, will satisfy NEPA.

The case law does not say that 30 different alternatives must be considered, or 10 different alternatives, or 7 different alternatives, or 6 different alternatives, or even five different alternatives. It is saying that in certain cases, two or three can be adequate.

I think my colleagues are well intentioned. However, I have real concerns about the proposed change to the National Environmental Policy Act, that has been on the books since 1969. The bill before us would limit the number of alternatives to: one, the proposal for hazardous fuel reduction; two, the alternative of doing nothing or; a third alternative, which is the only real alternative. In the case of a proposed fuel reduction project in the Northwest, someone could propose taking no action because we do not have to do that hazardous fuel reduction, and then someone else says, maybe here is an alternative.

Well, my concern is that we are throwing the baby out with the bathwater. If only 6 percent of these cases really have not had the categorical exemption of not having to go through an EIS and only three percent are ending up in court, then the National Environmental Policy Act is not the cause of the holdup.

Washington State has been the subject of many forest fires and many tragedies, most recently the tragic Thirty-mile fire in 2001. Much of eastern Washington is under condition class 2 and condition class 3, and, therefore, could be subject to this bill. My concern is that if a city wants to propose an alternative, it might be precluded from offering an alternative that would address concerns over the impact of the hazardous fuels reduction project on water quality.

So I would say to my colleagues, let us fund the hazardous fuels reduction account. Let us move forward to promote healthier forests. If we truly see that the National Environmental Policy Act delays project, even though only 3 percent of hazardous fuels projects have ever reached court, then let us come back and change the law.

I am truly concerned with the proposed change to the National Environmental Policy Act. What will stop other legislative proposals from coming to the Senate floor to change the National Environmental Policy Act in other areas? Are Members who are going to support this underlying language ready to stop at hazardous fuel reduction, or do they want to change NEPA all across the board?

For example, say one's community has to consider a proposal to build a new gas pipeline. Pipeline safety has been an issue of great controversy in the State of Washington, which had a pipeline explosion several years ago that killed several people. What if only one alternative was considered for the route of a gas pipeline going through one's State? I want to make sure the current law says reasonable alternatives are considered so that no community, no citizen, no organization with standing is left out in the cold.

That is what Henry M. Jackson was thinking about when he wrote the National Environmental Protection Act. He thought about making sure the public had a chance to participate in the process. He wanted to make sure they had the ability to have the issues that they wanted to be addressed and considered.

The Forest Roads Working Group, an organization that has operated with the blessing of the Bush Administration, along with other organizations, has raised similar concerns. These organizations have expressed their support for the public to have a say and to retain the ability to participate in the decision-making process.

I know my colleagues want to move forward on a plan that will make all communities more secure, that will make our forests more healthy. I applaud them for that, but I also hope Members will stop and think about the statistics that GAO has outlined. This dispute is not fundamentally about the EIS process and the number of alternatives. The Forest Service has the ability to proceed via categorical exemptions. It can develop an EIS when it needs to analyze complex proposals. If we start changing NEPA with respect to hazardous fuels projects, where are we going to stop?

I urge my colleagues not to change legislation that has been one of the landmark pieces of environmental law that this body saw fit to pass in 1969, but rather to keep that legislation intact and fund hazardous fuel reductions.

I yield the floor.


Ms. CANTWELL. Mr. President, I rise today to thank the distinguished chairman and ranking member of the Senate Agriculture Committee, Senators COCHRAN and HARKIN, for including in the managers' package an amendment I filed on the issue of wildland firefighter safety. My heart goes out to my colleagues from California and the people they represent. In Washington, we are well acquainted with catastrophic wildfires and the threat they pose to local communities. Our thoughts are with the people of California, as well as with the families of the firefighters on the job—including crews from my State who are on their way south to join in the effort.

The men and women who fight fires on our public lands serve our Nation bravely. Since 1910, more than 900 wildland firefighters have lost their lives in the line of duty. Before the California fires, I believe the toll was 26 individuals this year alone.

And this morning, we were faced with the news of the first firefighter death from the California blazes—an 11-year veteran named Steven Rucker, who perished while trying to save a home. He leaves behind a wife and two children.

As I have read the press accounts and listened to the stories my colleagues have told about the loss of life in California over these past few days, I cannot help but recall a recent tragedy in my State of Washington. On July 10, 2001, near Winthrop in Okanogan County, in the midst of the second worst drought in the history of our State, the Thirtymile Fire burned out of control. Four courageous young firefighters were killed. Their names: Tom Craven, 30 years old; Karen FitzPatrick, 18; Jessica Johnson, 19; and Devin Weaver, 21.

Sadly, as subsequent investigations revealed, these young men and women did not have to die. In the words of the Forest Service's own report on the Thirtymile Fire, the tragedy "could have been prevented." We know that firefighting is a dangerous job. But despite its inherent danger, we have a responsibility to ensure that no preventable tragedy like Thirtymile Fire ever happens again.

I would like to thank my colleague Senator BINGAMAN, the distinguished ranking member of the Senate Energy Committee, as well as Senator WYDEN, who was then chair of the Subcommittee on Public Lands and Forests. In the wake of the Thirtymile Fire, they agreed to convene hearings on precisely what went wrong that tragic day. We heard from the grief-stricken families. In particular, the powerful testimony of Ken Weaver—the father of one of the lost firefighters— put into focus precisely what's at stake when we send these men and women into harm's way. I can think of no worse tragedy for a parent than confronting the loss of a child, especially when that loss could have been prevented by better practices on the part of Federal agencies.

At the Senate Energy Committee hearing, we also discussed with experts and the Forest Service itself ways in which we could improve the agency's safety performance. And almost a year to the day after those young people lost their lives, we passed a bill—ensuring an independent review of tragic incidents such as Thirtymile that lead to unnecessary fatalities.

Based on subsequent briefings by the Forest Service, revisions to the agency's training and safety protocols, and even based on what I have heard when I have visited with firefighters over the past two years, I do believe the courage of those families to stand up and demand change has had a positive impact on the safety of the young men and women who today are battling blazes as wildland firefighters. Yet, I believe there is more that Congress can do to express our commitment. Today I offer a modest amendment that will take a few more steps in that direction.

My amendment does three simple things.

First, it will require the Secretaries of Agriculture and Interior to track the funds the agencies expend for firefighter safety and training.

Today, these sums are lumped into the agencies' "wildfire preparedness" account. But as I have discussed with various officials in hearings before the Senate Energy and Natural Resources Committee, it is difficult for Congress to play its rightful oversight role—ensuring that these programs are funded in times of wildfire emergency, and measuring the agencies' commitment to these programs over time—without a separate break-down of these monies.

Second, it will require the Secretaries to report to Congress annually on the implementation and effectiveness of its safety and training programs. I assure my colleagues who have not spent time dwelling on this issue, that the maze of policy statements, management directives and curricula changes associated with Federal firefighter training is dizzying and complicated.

The agencies have a responsibility to continually revise their policies in the face of new science and lessons learned on the fire line. Meanwhile, this body has the responsibility to ensure needed reforms are implemented. As such, I believe that Congress and the agencies alike would benefit from an annual check-in on these programs. I would also hope that this would serve as a vehicle for an ongoing and healthy dialogue between the Senate and agencies on these issues.

Third, it would stipulate that Federal contracts with private firefighting crews require training consistent with the training of Federal wildland firefighters. It would also direct those agencies to monitor compliance with this requirement. This is important not just for the private contractor employees' themselves but for the Federal, State and tribal employees who stand shoulder-to-shoulder with them on the fire line.

This is actually quite a complex issue about which many of us are just beginning to learn. With the severity of fire seasons throughout the country over the past 2 years—and notwithstanding the Clinton administration's efforts to hire a significant number of new firefighters as part of the National Fire Plan—the number of private contract crews hired by the agencies to help with fire suppression has tripled since 1998. According to Oregon Department of Forestry estimates, the number of contract crews at work has grown from 88 to 1998 to 300 this year, with 95 percent based in the Pacific Northwest. In general, these contract crews have grown up in former timber communities and provide important jobs, especially given the fact the agencies themselves do not at this juncture have the resources to fight the fires entirely on their own. And many of these contractors have been in operation for a decade or more and boast stellar safety records.

Nevertheless, as the number of—and need for—contractors has grown, there are more and more tales of unscrupulous employers that take advantage of workers and skirt training and safety requirements. This is a growing concern for U.S. Forest Service employees and state officials. This summer, the Seattle Times wrote a detailed feature on the issue, quoting internal Forest Service memos as well as evidence from the field.

Among the contractor practices cited in the article: Breaking safety rules and failing to warn other crews on the fire line; falsifying or forging firefighting credentials and ignoring training requirements; hiring illegal immigrants that cannot understand fire line commands—and committing various labor abuses; and rotating a single crew from fire to fire for 50 straight days—while Federal firefighters are not allowed to work more than 14 or 21 days in a row.

The article quoted from a November 2002 memo written by Joseph Ferguson, a deputy incident commander for the Forest Service: "If we don't improve the quality and accountability of this program, we are going to kill a bunch of firefighters .    .    . Although there were two or three good to excellent crews on each fire, that was offset by 20 to 30 that were hardly worth having," Ferguson added. "It was apparent that training for most of these crews had been done poorly or not at all."

Paul Broyles, who heads a safety committee for the National Interagency Fire Center added that private crews he has seen have varied from "fantastic to a he[ck] of a lot less than good and some were real safety concerns." He noted that while state government and feds were trying to crack down on violations associated with documentation, "the assumption is, where there's one problem, there's probably more."

This provision is a modest beginning in addressing the challenges posed by integrating private and Federal contract crews—and doing it in a manner that maximizes everyone's safety on the fire line. I understand that the Federal and State agencies are already attempting to push contractors in this direction, and this provision will bolster that momentum.

I had also hoped to include in this amendment a provision that would direct the General Accounting Office to conduct a study of the impacts of the President's outscourcing initiative on wildland firefighter safety. Unfortunately, that provision was opposed by my colleagues on the other side of the aisle.

Now, let me be clear. I oppose the Bush administration's outsourcing initiative. And if I had my way, I would simply declare that this initiative would not apply to the firefighting agencies. However, at the very least, I hope my colleagues will agree that we should take a close look at how outsourcing will affect the ability of our Federal agencies to do their job when it comes to fighting wildfires and their ability to do it safely.

According to the Forest Service Council, which represents 20,000 Forest Service employees across the Nation, some 40 percent of these workers serve dual functions.

Likened to the Reserve or National Guard, they call it the "militia" approach—where qualified employees that perform other jobs for much of the year are dispatched as "first responders" on wildland fires.

From a military perspective in Iraq, we have seen the importance of the National Guard and Reserve in supporting our military efforts. No one here in Congress would contemplate outsourcing the Guard and Reserve.

I hope my colleagues would recognize that it is completely unclear how the outsourcing initiative, with its emphasis on contracting out certain types of jobs, would impact the need for Forest Service employees to perform these collateral duties. I am concerned that the outsourcing initiative will seriously erode the agencies' capacity to fight fires—just as the sponsors of this bill argue these fires are becoming most intense.

Likewise, I have serious concerns that it will disrupt the chain of command on the fire line, especially in instances in which the Forest Service could lose some of its most experienced firefighters as a result of outsourcing. These are my concerns.

While I understand that there were objections on the other side of the aisle to including the GAO study provision—and we have thus removed it from this amendment, to move forward on the other important provisions—I guess we are lucky that such a study does not actually require legislation. I plan to work with a number of my colleagues to request just such a report form the GAO, because I believe it is important we thoroughly understand the way outsourcing would impact Federal agencies' ability to fight fires and fight them safely.

And so I hope my colleagues will support this simple amendment. Ultimately, the safety of our Federal firefighters is a critical component of how well prepared our agencies are to deal with the threat of catastrophic wildfire.

Congress owes it to the families of those brave firefighters we send into harm's way to provide oversight of these safety and training programs.

We owe it to our Federal wildland firefighters, their families and their State partners, and to future wildland firefighters.

My amendment will provide this body with the additional tools it needs to do the job. I thank my colleagues for supporting this amendment.

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