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Forest Team
Mike Anderson
Senator Wyden’s Eastern Oregon National Forests Bill
December 22, 2009
Following is a summary and preliminary analysis of S. 2895, the “Oregon Eastside Forests
Restoration, Old Growth Protection, and Jobs Act” announced by Senator Wyden on December
16. The 64-page bill was developed through a year-long negotiation effort by representatives of
several conservation groups and timber companies in Oregon.
Geographic Scope: The bill applies to six national forests in eastern Oregon, totaling nearly 10
million acres. Lands covered by the Northwest Forest Plan (parts of the Deschutes and Winema
National Forests) are not affected by the legislation.
Management Goals and Direction: The bill establishes four management goals for the eastside
national forests: to conserve and restore forests and watersheds, reduce the risk of
uncharacteristic natural disturbances, allow for characteristic disturbances, and increase
resistance and resiliency to uncharacteristic events (Sec. 4(a)(1)). “Uncharacteristic” is defined
as exceeding events or conditions that existed prior to Euro-American settlement (Sec. 3(23)).
The bill specifies 15 considerations for implementing ecological restoration projects (ERPs),
such as reducing basal area of overstocked stands, increasing mean diameter of stands,
harvesting wood to sustain industry infrastructure, and reducing invasive species (Sec. 4(a)(2)).
Old-growth Protection: The bill prohibits the cutting of live trees over 21 inches in diameter,
with certain exceptions (Sec. 4(b)(1)). [This is similar to the administrative protection of live
old-growth trees currently provided by the “Eastside Screens” for national forests in eastern
Oregon and Washington. Neither the bill nor the Eastside Screens directly addresses the
controversial issue of salvage logging of large dead trees.]
Watershed Management: The bill requires the Forest Service to comply with the PACFISH and
INFISH administrative requirements for riparian area protection (Sec. 5(b)(1)). The Forest
Service could increase but not decrease riparian protections (Sec. 5(b)(2)).
Roads: The bill generally prohibits construction of permanent roads (Sec. 6(a)) and imposes
several limitations on construction of temporary roads, such as requiring prompt
decommissioning after a project is completed (Sec. 6(b)). In addition, the bill requires the Forest
Service to reduce the density of permanent roads when it designs ERPs (Sec. 6(c)).
Science Advisory Panel: The bill requires the Forest Service to establish a seven-member
Eastside Forest Scientific and Technical Advisory Panel. Once appointed, the panel would be
expected to produce a report within six months making recommendations on how best to achieve
the bill’s management goals (Sec. 7(c)). The panel’s recommendations must be “based on the
best available science” (Sec. 7(c)(1)(B)(i)). After five years, the panel would also submit a
report to Congress evaluating the implementation of the law and recommending improvements
(Sec. 7(d)). The public would have an opportunity to comment on the five-year report (Sec.
7(e)).
Restoration Assessment and 10-year Plan: The bill requires the Forest Service to prepare an
Eastside Landscape Forest Restoration Assessment within two years (Sec. 8(a)). The assessment
would include identification of proposed ERP areas, along with evaluation of the existing road
system and local infrastructure and workforce needs (Sec. 8(b)). It would also contain a 10-year
restoration plan comprised of activities aimed at restoring forest and watershed health (Sec.
8(c)). The public would have an opportunity to comment on the assessment (Sec. 8(d)). The
Forest Service would have to incorporate the findings of the assessment into its forest plans (Sec.
8(e)).
Ecological Restoration Projects (ERPs): The bill directs the Forest Service to prepare landscapescale ERPs in consultation with local collaborative groups and specifies several factors the
agency must consider in prioritizing ERPs (Sec. 9(a)). The bill requires the Forest Service to
plan one or more ERPs covering a gross planning area of at least 25,000 acres in each of the six
Eastside national forests per year, starting within three years (Sec. 9(b)(1)). The bill states that
each ERP “shall provide a quantity of timber based on the need to maintain a sustainable
industrial capacity to perform the ecological restoration activities under this Act” (Sec. 9(b)(2)).
The Forest Service would be required to carry out each ERP activity "in a manner consistent
with the advice of the advisory panel" established under Section 7 (Sec. 4(a)(2)(A)(ii)).
Interim Projects: Until the Forest Service begins mechanical treatments under an ERP in an
Eastside National Forest, the agency would be required to plan and implement “interim
projects.” The interim projects, which include “all vegetation management contracts (including
commercial timber sales and stewardship contracts),” must comply with the bill’s provisions on
old-growth logging, riparian area management, and permanent and temporary roads, as well as
with the recommendations of the science advisory panel (Sec. 9(c)(1)). The bill exempts interim
projects from administrative appeals (Sec. 9(c)(2)).
Interim Treatment Targets: Until the Forest Service initiates mechanical treatments under an
ERP within each Eastside national forest, the bill requires the Forest Service, “to the maximum
extent practicable,” to plan and implement specified acreages of interim projects or other projects
during each of the three years after the bill is enacted (Sec. 9(c)(5)). The projects must be
predominantly comprised of mechanical treatments and emphasize sawtimber as a byproduct
(Sec. 9(c)(5)(i) and (ii)). The minimum project acreage targets are 80,000 acres in the first year,
100,000 acres in the second year, and 120,000 acres in the third year (Sec. 9(c)(5)(i)). The
acreage of interim projects must be evenly distributed across the roaded, at-risk forest lands
within the Eastside national forests (Sec. 9(c)(5)(C)).
Experimental Projects: The bill requires the Forest Service to test ways of identifying and
protecting old-growth trees based on their age (>150 years) instead of diameter (>21 inches)
(Sec. 9(d)(1)). The prohibition on cutting trees greater than 21 inches in diameter would not
apply to experimental projects (Sec. 9(d)(2)).
Collaboration: The bill requires the Forest Service to encourage new and existing collaborative
groups to assist in implementation of the legislation (Sec. 10(a)(1)). To receive official
recognition, a collaborative group must include representatives of environmental groups, the
timber industry, and county governments (Sec. 10(a)(2)(B)(i)). The primary functions of the
collaborative groups would be to make recommendations to the Forest Service and to monitor
the ERPs (Sec. 10(a)(4) and (5)).
NEPA Analysis and Objection Process: The bill requires the Forest Service to prepare no more
than one environmental impact statement on each ERP (Sec. 11(b)(2)). At the end of the NEPA
process, the Forest Service would issue a “proposed decision” (Sec. 11(c)(5)). For the next 30
days, persons who submitted comments on the ERP would be able to file an administrative
“objection” to the proposed decision (Sec. 11(d)(1) and (2)). If the objector and the Forest
Service agree to have an objection resolution meeting, members of the local collaborative group
would be able to attend (Sec. 11(d)(3)). The Forest Service would have to respond to any
objections within 30 days after the end of the 30-day objection period (Sec. 11(d)(4)). Until
then, the Forest Service would not be able to implement the ERP (Sec. 11(d)(5)(B)(i)). [The
bill’s objection process is similar to the one used for projects authorized by Healthy Forest
Restoration Act.]
Judicial Review: The bill “encourages” the court reviewing a lawsuit challenging an ERP to
expedite the proceeding “to the maximum extent practicable” (Sec. 11(e)(1)). The court would
be required to consider the short- and long-term impacts of undertaking and not undertaking the
ERP (Sec. 11(e)(2)). Any person who commented on either an ERP or an interim project would
be allowed to intervene in any lawsuit challenging those projects (Sec. 11(g)).
Biomass: The bill requires the Forest Service to “take such actions as are necessary to further
enhance the use of woody biomass” in the Eastside national forests (Sec. 12(a)). The Forest
Service would be required to estimate the volume of biomass – consisting of slash, brush, and
trees that are too small for sawtimber – that could be supplied sustainably over a 20-year period
(Sec. 12(b)(2)). The bill authorizes the agency to enter into biomass supply contracts for a term
of up to 20 years, with an option of adjusting the contracts after 10 years (Sec. 12(b)(4)).
Stewardship Contracts: The bill requires the Forest Service, “to the maximum extent
practicable,” to use 20-year stewardship contracts to carry out restoration projects, with a 10-year
adjustment option (Sec. 13(a) and (b)). Local businesses located within 100 miles of the
project’s national forest would receive preference in contractor selection (Sec. 13(d)).
Appropriations and Retained Receipts: The bill authorizes appropriations of $50 million, of
which no more than three percent could be used to pay for Forest Service overhead (Sec. 15(a)
and (b)). Any sale receipts generated from projects authorized by the legislation would be
retained and used by the Forest Service for project planning and implementation (Sec. 15(c)(1)).
In conclusion, S. 2895 is a complex bill that would fundamentally change the management goals
and procedures of national forests in Eastern Oregon. A number of knotty issues warrant further
analysis and discussion, including (1) statutory acreage targets for mechanical treatments, (2)
long-term contracts for stewardship projects and biomass supply, (3) short-term elimination of
administrative appeals for salvage sales and other commercial logging projects, (4) expediting
judicial review, (5) potential impact on county payments due to retention of receipts, and (6)
precedent-setting implications for other parts of the country.