Wildfire Crisis Strategy: Legislative Fix to Leverage Partnerships

Written by: Mac Cloyes, Policy Director

Photo credit: USDA

Last month USDA Secretary Vilsack and US Forest Service Chief Moore announced the agency’s 10-year Wildfire Crisis Strategy. The strategy lays out an ambitious plan to tackle one of the greatest land management challenges of our time (summary from page 4 ):

Under this 10-year strategy, we [USFS] will work with partners to:

• Treat up to an additional 20 million acres on National Forest System lands.

• Treat up to an additional 30 million acres of other Federal, State, Tribal, and private lands.

• Develop a plan for long term maintenance beyond the 10 years.

Treating an additional 50 million acres over the next 10 years will cost an estimated $50 billion. The Infrastructure Investment and Jobs Act (IIJA) provided about $3 billion to reduce hazardous fuels and restore forests and grasslands. While this new funding source will move the needle accomplishing high priority work, it represents a small fraction of the overall resources needed. Working with partners to match federal funding with non-federal funding, through tools like the Forest Resilience Bond, is one way to make USFS funding get even more work accomplished.

The strategy and accompanying Implementation Plan reference partners/partnerships extensively. Both documents make it clear that the USFS partnership community, and hopefully new partners, will be central to implementation. While partners have historically played a key role in supporting the USFS mission, this strategy may represent the greatest need and opportunity for partnership the agency has faced. Leveraging non-federal capacity and resources (matching federal funding with non-federal funding and in-kind support) will get more work done, faster, at a lower cost to the federal government.

While there is a lot to discuss about this strategy, from a policy perspective, I would like to initially focus on a single bullet point from the Implementation Plan:

FINANCIAL MECHANISMS. We will need financial instruments and related authorities, such as green bonds, to support public/private partnerships and long-term investments in fuels and forest health treatments, including maintenance treatments over time. We might also need new kinds of agreements among Federal agencies or with non-Federal land managers to attract investments in restoration work at the needed scale.

I cannot emphasize enough the importance of creating new partnership agreement authorities to address the challenge of treating an additional 50 million acres over the next 10 years. Alas, enacting new legislation can be daunting. Consider the “Fire Funding Fix” which had broad political support, but still took many years to enact. The current challenge to accelerate restoration does not have decades to be solved. The good news is that Congress has been working on a new partnership authority for USFS since well before the strategy was announced.

Why does FS need new partnership authorities? 

USFS, specifically the National Partnership Office and Regional partnership community, has done amazing work catalyzing partnerships across the agency. Since 2019, the agency has launched more than 5,500 new partnership agreements. The value of these partnerships exceeded $770 million, including USFS and cooperator contributions. This is an impressive amount of leverage, and has helped the agency accomplish a significant amount of work. Between 2017 and 2021, the average cooperator contribution to a partnership agreement was about $60,000. As evidenced by the contribution average and total value, USFS partnership authorities work well for traditional partnership projects. But current authorities do not align with the scale of the challenge when engaging partners to support the goal to treat an additional 50 million acres over the next decade.

Federal law limits USFS’ ability to enter into long-term partnership agreements to conduct landscape-scale treatments due to the requirement that the agency must obligate the full federal cost share of an agreement in year one of the project (31 USC 1501). And, with narrowly targeted exceptions, the federal government is prohibited from obligating funds in advance of an appropriation (31 USC 1341). In practice, this means USFS cannot legally commit to a multiyear partnership-funded project without having the entire federal cost share available in the first year of the project. These two provisions are central to federal financial management, and the latter provision from the Antideficiency Act is rooted in the Appropriations Clause of the Constitution of the United States:

Article I, Section 9, Clause 7: No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law

So, minor barrier here: the Constitution. Fortunately, there are many examples of targeted legislative exceptions to provisions of the Anti-deficiency Act. For example contract authority which, contrary to its name, is a type of budget authority that authorizes an agency to obligate funds in advance of appropriations for a specific purpose. Another example is USFS’ authority to accept volunteer services (16 USC 558a), which would otherwise be prohibited by the Antideficiency Act (31 USC 1342). And there is legislative precedent in federal contracting (41 USC 3903), which provides a starting point for updating USFS partnership agreement authorities. 41 USC 3903 authorizes an executive branch agency to enter into a multiyear contract for the acquisition of property or services as long as:

Funds are available and obligated for the contract, for the full period of the contract or for the first fiscal year in which the contract is in effect, and for the estimated costs associated with a necessary termination of the contract (41 USC 3903(b)(1)

Applying the second option to agreements would address the cost prohibitive and inefficient barrier of obligating the entire federal share in year one of the agreement. This would position USFS to attract and deploy significant non-federal funding to high-priority projects. A multiyear commitment contingent on future appropriations, backed by a termination payment, would enable USFS to plan and implement projects at the required scale, while preserving federal financial management practices and eliminating cost prohibitive barriers. Long-term commitment has an equally important benefit of  empowering local contractors to make strategic decisions about increasing their capacity by hiring crew members and acquiring new equipment needed to carry out the work outlined in the strategy.

Conservation Finance Agreement Authority

In June, I wrote about Senator Feinstein’s leadership on the Wildfire Emergency Act, which was subsequently updated and reintroduced in September. This bipartisan bill includes an innovative new partnership authority for USFS–Conservation Finance Agreement Authority–which is one type of authority requested in the Implementation Plan (see Financial Mechanisms above).

Conservation Finance Agreements are defined in the bill as mutual interest, mutual benefit partnership agreements of 2-20 year duration, which:

• May provide that performance during the second and subsequent years of the agreement is contingent on the appropriation of funds; and

• May include a cancellation/termination payment to the partner if the agreement is not funded in future years.

This authority would authorize USFS to implement partnership funded projects at the required scale, while attracting long-term commitments from non-federal partners and beneficiaries. The contingency on future appropriations addresses the barrier of the timing of the federal share and has a secondary benefit of aligning the appropriation of funds with the benefit as the work is performed.

Optimistic Outlook

The Wildfire Crisis Strategy is an ambitious plan to address one the greatest land management challenges of our time. To be successful, USFS will heavily rely on partners for additional capacity and resources. However, the agency faces a major barrier to unlocking the full potential of partners due to the requirement to obligate the full federal share of a partnership agreement in year one of a project. This barrier significantly limits the ability of the agency to leverage non-federal funding. A relatively minor legislative fix addressing this barrier would make significant non-federal funding available, enabling landscape-scale planning and implementation of highly leveraged partnership-funded forest restoration projects.