[Federal Register Volume 80, Number 217 (Tuesday, November 10, 2015)]
[Notices]
[Pages 69653-69660]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-28649]
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ENVIRONMENTAL PROTECTION AGENCY
[EPA-HQ-OW-2015-0668; FRL-9936-78-OW]
Notice of Opportunity To Provide Information on Existing Programs
That Protect Water Quality From Forest Road Discharges
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice.
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SUMMARY: The Environmental Protection Agency (EPA) solicits public
input and information on existing public and private sector programs
that address stormwater discharges from forest roads. This information
will assist EPA in responding to the remand in Environmental Defense
Center, Inc. v. U.S. EPA, 344 F.2d 832 (9th Cir. 2003) that requires
EPA to consider whether the Clean Water Act requires the Agency to
regulate forest roads. This notice does not imply that EPA has made any
decision to do so. EPA is considering the implementation,
effectiveness, and scope of existing programs in addressing water
quality impacts attributable to stormwater discharges from forest roads
prior to making any decision. The Agency plans to assess a variety of
existing programs, including federal, state, local, tribal, third party
certifications, and combinations of these approaches, as well as
voluntary best management practices (BMP)-based approaches. In
preparing its response to the remand, EPA is coordinating with other
federal agencies, and will assess whether any additional stormwater
controls are called for, consistent with federal law, including the
recent 2014 amendments to the Clean Water Act.
DATES: Comments must be received on or before January 11, 2016.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-
2015-0668, to the Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting
comments. Once submitted, comments cannot be edited or removed from
Regulations.gov. EPA may publish any comment received to its public
docket. Do not submit electronically any information you consider to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Multimedia submissions (audio,
video, etc.) must be accompanied by a written comment. The written
comment is considered the official comment and should include
discussion of all points you wish to make. EPA will generally
[[Page 69654]]
not consider comments or comment contents located outside of the
primary submission (i.e., on the web, cloud, or other file sharing
system). For additional submission methods, the full EPA public comment
policy, information about CBI or multimedia submissions, and general
guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: Prasad Chumble, EPA Headquarters,
Office of Water, Office of Wastewater Management via email at
[email protected] or telephone at 202-564-0021.
SUPPLEMENTARY INFORMATION:
I. General Information
Applicability
This notice does not impose requirements on any entity.
II. Background
A. Purpose
EPA is gathering information on existing programs addressing
stormwater discharges from forest roads to determine what additional
measures, if any, are necessary to protect water quality. As described
below, section 402(p)(6) of the Clean Water Act (CWA) allows EPA to
consider a range of regulatory and non-regulatory approaches, and
determine which stormwater discharges (if any) need controls under
402(p)(6). Since EPA's last public notice on May 23, 2012 (77 FR
30473), in which the Agency also solicited comments on approaches for
addressing water quality impacts associated with forest roads, a number
of developments have occurred, including statutory and regulatory
changes, collection of additional water quality data, results from new
research, new information pertaining to effectiveness of BMPs, and
updates to federal, state, local, tribal, and other programs.
Therefore, the Agency seeks to obtain public input and updated
information on the implementation, effectiveness, and scope of
approaches and programs that are currently in place for addressing
stormwater discharges from forest roads.
B. Legal Background
The objective of the CWA is to restore and maintain the chemical,
physical, and biological integrity of the nation's waters. 33 U.S.C.
1251(a). To that end, the CWA provides that the discharge of any
pollutant by any person shall be unlawful, except in compliance with
other provisions of the statute. The CWA provides for a permit program,
in general, for the discharge of a pollutant from a ``point source,''
which is defined in section 502 of the CWA as ``any discernible,
confined and discrete conveyance, including but not limited to any
pipe, ditch, channel, tunnel, conduit, well, discrete fissure,
container, rolling stock, concentrated animal feeding operation, or
vessel or other floating craft, from which pollutants are or may be
discharged.'' 33 U.S.C. 1362(14). In 1987 Congress added section 402(p)
to the CWA, which required National Pollutant Discharge Elimination
System (NPDES) permits for certain specified stormwater discharges and
provided EPA with discretion to determine whether and how discharges
from other stormwater sources should be addressed ``to protect water
quality.''
For the initial phase of stormwater regulation, section 402(p)(1)
created a temporary moratorium on NPDES permits for point sources
except for those listed in section 402(p)(2), which includes discharges
already required to have a permit; discharges from municipal separate
storm sewer systems serving population of 100,000 or more; and
stormwater discharges ``associated with industrial activity.'' Congress
did not define discharges associated with industrial activity, allowing
EPA to define the term. For other stormwater discharges, section
402(p)(5) directs EPA to conduct studies, in consultation with the
states, for ``identifying those stormwater discharges or classes of
stormwater discharges for which permits are not required'';
``determining to the maximum extent practicable, the nature and extent
of pollutants in such discharges''; and ``establishing procedures and
methods to control stormwater discharges to the extent necessary to
mitigate impacts on water quality.'' Section 402(p)(6) directs the
Agency to issue regulations, in consultation with state and local
officials, based on such studies. The section allows EPA flexibility in
issuing regulations to address designated stormwater discharges and
does not require the use of NPDES permits. Specifically, the section
states that the regulations ``shall establish priorities, establish
requirements for state stormwater management programs, and establish
expeditious deadlines'' and may include ``performance standards,
guidelines, guidance, and management practices and treatment
requirements, as appropriate.'' 33 U.S.C. 1342(p)(6). This flexibility
is unique to stormwater discharges regulated under section 402(p)(6)
and differs from the requirement for NPDES permits for stormwater
discharges listed in section 402(p)(2) of the Act.
Prior to the 1987 Amendments, there were numerous questions
regarding the appropriate means of regulating stormwater discharges
through the NPDES program. These questions stemmed from serious water
quality impacts of stormwater, the variable nature of stormwater, the
large number of stormwater discharges, and the limited resources of
permitting agencies. EPA undertook several regulatory actions, which
resulted in extensive litigation, in an attempt to address these unique
discharges.
EPA's Silvicultural Rule (40 CFR 122.27) predates the 1987
amendments to the CWA that added section 402(p) for stormwater
controls. The Agency defined silvicultural point source as part of the
Silvicultural Rule to specify which silvicultural discharges were to be
included in the NPDES program. The rule defines silvicultural point
source to mean any ``discernible, confined and discrete conveyance
related to rock crushing, gravel washing, log sorting, or log storage
facilities which are operated in connection with silvicultural
activities and from which pollutants are discharged into waters of the
United States,'' and further explains that ``the term does not include
non-point source silvicultural activities such as nursery operations,
site preparation, reforestation and subsequent cultural treatment,
thinning, prescribed burning, pest and fire control, harvesting
operations, surface drainage, or road construction and maintenance from
which there is natural runoff.''
In 1990, EPA promulgated the Phase I stormwater regulations (55 FR
47990) (``Phase I Rule''), following the 1987 amendments which directed
the Agency to develop regulations requiring permits for large and
medium municipal separate storm sewer systems and stormwater
``discharges associated with industrial activity.'' In the Phase I
regulations EPA defined the term ``storm water discharge associated
with industrial activity,'' which is not defined by the Act but was
discussed in the legislative history to the 1987 amendments. In
describing the scope of the term ``associated with industrial
activity,'' several members of Congress explained in the legislative
history that the term would apply if a discharge was ``directly related
to manufacturing, processing or raw materials storage areas at an
industrial plant.'' (Vol. 132 Cong. Rec. H10932, H10936 (daily ed.
October 15, 1986); Vol. 133 Cong. Rec. H176 (daily ed. January 8,
1987)). The Phase I Rule provided the regulatory definition of
``associated with industrial
[[Page 69655]]
activity'' by adopting the language used in the legislative history and
supplementing it with a description of various types of areas (for
example, material handling sites, sites used for the storage and
maintenance of material handling equipment, etc.) that are directly
related to an industrial process and to industrial facilities
identified by EPA. The Phase I regulations define the term ``storm
water discharge associated with industrial activity'' to include
stormwater discharges from facilities identified in the rule by
Standard Industrial Classifications (SIC) codes. 40 CFR 122.26(b)(14).
The Phase I Rule does not include discharges from facilities or
activities excluded from the NPDES program under other parts of EPA's
regulations, including the Silvicultural regulations. Id. As discussed
above, EPA had previously specified under the Silvicultural regulations
which silvicultural discharges were to be included in the NPDES
program. 40 CFR 122.27. EPA intended to regulate those same
``silvicultural point source[s]'' under the Phase I rule (i.e., rock
crushing, gravel washing, log sorting, and log storage facilities) and
to exclude from the Phase I regulation stormwater runoff from other
silvicultural activities, consistent with the requirements of section
122.27.
In developing the second phase of stormwater regulations, EPA
submitted to Congress in March 1995 a report that evaluated the nature
of stormwater discharges from municipal and industrial facilities that
were not already regulated under the Phase I regulations (U.S.
Environmental Protection Agency, Office of Water. Storm Water
Discharges Potentially Addressed by Phase II of the National Pollutant
Discharge Elimination System Storm Water Program: Report to Congress.
Washington, DC EPA, 1995. (833-K-94-002)). On December 8, 1999, EPA
promulgated the Phase II stormwater regulations to address stormwater
discharges from small municipal separate storm sewer systems and
construction sites that disturb one to five acres. 64 FR 68722. Under
CWA sections 402(p)(2)(E) and 402(p)(6), EPA retains the authority to
designate additional stormwater discharges for regulation.
The Phase II stormwater regulations were challenged in
Environmental Defense Center v. US EPA, 344 F.3d 832 (9th Cir. 2003)
(EDC v. EPA). In that case, petitioners contended that EPA arbitrarily
failed to regulate discharges from forest roads under the Phase II
rule. The court held that EPA failed to consider the petitioners'
comments and remanded the issue to EPA ``so that it may consider in an
appropriate proceeding Petitioner's contention that section 402(p)(6)
requires the EPA to regulate forest roads. The EPA may then either
accept Petitioners' arguments in whole or in part, or reject them on
the basis of valid reasons that are adequately set forth to permit
judicial review.'' Id. at 863.
During several years following the decision in EDC v. EPA, EPA
undertook research to improve the Agency's knowledge of forest road
stormwater discharge impacts on water quality and what programs exist,
whether voluntary or mandatory, to reduce those impacts. During the
same period, the Northwest Environmental Defense Center initiated
litigation concerning logging road stormwater discharges.
In 2011, the U.S. Court of Appeals for the Ninth Circuit issued a
decision in Northwest Environmental Defense Center v. Brown, 640 F.3d
1063 (9th Cir. 2011) (``NEDC''), a citizen suit alleging violations of
the CWA for unpermitted discharges of stormwater from ditches alongside
two logging roads in state forests. The court held that because the
stormwater runoff from the two roads in question is collected by a
system of ditches, culverts and channels and then discharged into
waters of the United States, there was a point source discharge of
stormwater associated with industrial activity for which an NPDES
permit is required.
On May 23, 2012, EPA published a Notice in the Federal Register
summarizing known water quality impacts related to forest roads and
discussing existing state, tribal, and voluntary programs designed to
address those impacts. (77 FR 30473). The Notice expressed EPA's intent
to specify that only stormwater discharges associated with rock
crushing, gravel washing, log sorting, and log storage are considered
discharges associated with industrial activities, and that those would
be the only discharges associated with silvicultural activity that
would be subject to permitting under the stormwater regulations
pertaining to industrial activity. The Notice also discussed the
Agency's consideration of non-permitting approaches to address other
stormwater discharges from forest roads.
On December 7, 2012, EPA promulgated a final rule (77 FR 72970) to
specify that for the purposes of assessing whether stormwater
discharges are ``associated with industrial activity,'' the only
facilities under the SIC code 2411 that are ``industrial'' are: Rock
crushing, gravel washing, log sorting, and log storage. This rulemaking
clarified that, contrary to the Ninth Circuit's decision in NEDC,
discharges of stormwater from silviculture activities other than the
four specifically named activities identified above do not require an
NPDES permit. On March 20, 2013, the U.S. Supreme Court reversed the
Ninth Circuit's ruling in NEDC, holding that discharges of stormwater
that ran off logging roads into ditches, culverts and channels did not
require an NPDES permit. Decker, Oregon State Forester, et al. v.
Northwest Environmental Defense Center, 133 S.Ct 1326 (2013).
In 2014, Congress amended section 402(l) of the Federal Water
Pollution Control Act to effectively prohibit the use of NPDES permits
for the discharge of runoff ``resulting from the conduct of the
following silviculture activities conducted in accordance with standard
industry practice: nursery operations, site preparation, reforestation
and subsequent cultural treatment, thinning, prescribed burning, pest
and fire control, harvesting operations, surface drainage, or road
construction and maintenance.'' 33 U.S.C. 1342(l). In addition, the
amendment prohibits third party lawsuits authorized by section 505(a)
for any non-permitting program established under 402(p)(6), or for any
other limitations applied to silviculture activities.
In December 2014, EDC and the Natural Resources Defense Council
filed a petition with the Ninth Circuit to compel EPA to respond,
within six months, to the question remanded in the 2003 EDC v. EPA
decision of whether section 402(p)(6) requires regulation of stormwater
discharges from forest roads. Following execution of a settlement
agreement that was filed with the court on August 26, 2015, the court
entered an order establishing a schedule requiring EPA to issue a final
determination by May 26, 2016.
III. Water Quality Impacts From Stormwater Discharges From Forest Roads
The Agency's May 23, 2012 Notice summarized the research EPA had
collected to date on the water quality impacts resulting from
stormwater discharges from forest roads. Much of this research was
compiled in the 2008 report ``National Level Assessment of Water
Quality Impairments Related to Forest Roads and Their Prevention by
Best Management Practices'' prepared by the Great Lakes Environmental
Center, Inc. (GLEC). This document is available in the docket for
today's notice and provides an extensive discussion on water quality
impacts from forest road stormwater discharges, which are primarily
erosion and sedimentation,
[[Page 69656]]
but can also include changes in stream morphology, introduction of
chemicals and other pollutants, and degradation of aquatic habitat.
EPA's research indicates that improperly designed, constructed,
maintained, or decommissioned forest roads, as well as abandoned
``legacy roads,'' \1\ can lead to a number of impacts. These impacts
can include increased sediment load and changes in stream network
hydrology, subsequently causing physical, biological, and ecological
impacts to water quality. EPA also recognizes that not all forest roads
cause water quality impacts and that within a basin the majority of the
water quality impacts caused by discharges from forest roads may be
attributed to a relatively small subset of forest roads (see, for
example, Nelson et al., 2011; Fly et al., 2010; Luce and Black, 2001;
Luce and Black, 1999).
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\1\ Abandoned or ``legacy roads'' refers to forest roads built
prior to the establishment of current design standards, which are
not being used but may still be sources of sediment.
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The focus of this notice is to solicit input on the implementation
and effectiveness of existing public and private programs, whether
voluntary or legally binding and enforceable, in mitigating water
quality impacts from stormwater discharges from forest roads, rather
than to receive additional comments or materials on water quality
impacts of these discharges. Specifically, EPA seeks input on the
implementation, effectiveness, and scope of existing federal, state,
local, tribal and private sector programs. The Agency also seeks input
on additional approaches and regulations, if necessary, to mitigate
negative impacts on water quality from forest road stormwater
discharges.
IV. EPA's May 23, 2012 Federal Register Notice
On May 23, 2012, EPA published a Notice that sought comment on
potential approaches for addressing water quality impacts resulting
from stormwater discharges from forest roads. In response to that
Notice, EPA received over 100 comment letters. Some comments pointed to
existing programs suggesting that a national regulation addressing
discharges from forest roads is unnecessary because existing state and
tribal programs are sufficient. Others asserted that existing federal,
state, and tribal programs are insufficient to protect water quality.
As discussed above, EPA is prohibited from requiring NPDES permits
for stormwater discharges from forest roads associated with defined
``silvicultural activities'' as a result of the 2014 amendment to
section 402(l) of the CWA. However, authority to regulate these
discharges in other ways and using other methods remains, including
under section 402(p)(6). As noted, section 402(p)(6) of the CWA allows
EPA flexibility in issuing regulations to address designated stormwater
discharges and does not require the use of NPDES permits. Specifically,
the section states that the regulations shall establish priorities,
establish requirements for state stormwater management programs, and
establish expeditious deadlines and may include ``performance
standards, guidelines, guidance, and management practices and treatment
requirements, as appropriate.'' 33 U.S.C. 1342(p)(6).
In assessing whether regulation is required under section 402(p)(6)
of the CWA, EPA is considering the effectiveness of existing programs
in addressing water quality impacts attributable to stormwater
discharges from forest roads, including federal, state, local, tribal,
third-party certifications, and combinations of these approaches, as
well as voluntary BMP-based approaches. In this notice, EPA requests
information on these and other means currently in place for addressing
the water quality impacts of stormwater discharges from forest roads or
certain portions of forest roads. EPA also requests information on
implementation and lessons learned from experience with existing
programs.
V. Key Considerations
In assessing how best to manage stormwater discharges from forest
roads, EPA recognizes that any effective program should be informed by
several considerations. It is EPA's view that there are four key
considerations for managing stormwater discharges as described later in
this notice: (1) The advantage of leveraging existing strategies that
work, including existing effective federal, state, local, tribal,
private, and voluntary BMP-based programs; (2) the utility of
addressing site-specific factors; (3) the need to prioritize actions;
and (4) the benefits of accountability measures.
Forest road stormwater management programs vary across the country
in response to state or regional factors. EPA is working with federal
agencies, states, and tribes as well as the private sector to
understand their programs for managing stormwater discharges from
forest roads. The Agency is interested in engaging other interested
stakeholders in the process as well. EPA provided an overview of
existing public and private programs to manage stormwater discharges
from forest roads in its May 23, 2012 Federal Register Notice, but
understands that there may have been improvements and additions since
that time. With this Notice, EPA seeks updated information on existing
programs.
A range of guidelines are available to assist forest owners,
managers, and operators in designing and maintaining forest roads and
selecting the appropriate BMPs to control stormwater discharges. For
example, EPA has issued national guidance to assist forest owners and
operators to protect lakes and streams from polluted runoff that can
result from forestry activity and, in particular, from improperly built
or maintained forest roads (USEPA, 2005). Other federal agencies as
well as states have also developed guidance documents to protect water
quality from forest road discharges (For example USFS (2012) and
Georgia Forestry Commission (2009)). In addition, industry has
developed standards for voluntary certification programs (For example,
NCASI (2012) and SFI (2015)). BMP-based approaches allow forest road
owners and operators to tailor management practices to site-specific
factors such as topography, road design, soils, geologic factors, road
use, and climate. The diversity of the forest road networks, the
different classes of roads, the different local physical conditions,
and the broad range of road conditions and uses indicate the importance
of site-specific BMP selection and implementation to protect water
quality.
EPA also intends to consider the complexity and vastness of the
Nation's forest road network and diversity of the forested landscape.
EPA seeks additional information that would assist the Agency in
evaluating various approaches, including, for example: Differences
among forest uses; particularly vulnerable features of the road network
(for example, stream crossings); critical phases (for example, road
closure or decommissioning); ownerships of different forest tracts;
types of ownership, including public, private, and tribal-owned lands;
and forest road conditions, type, and usage. The selection of
appropriate management strategies and BMPs can vary based on site-
specific factors, including topography, road design, soils, geologic
factors, road use, road maintenance schedule, and climate. EPA also
would like information on the effectiveness of properly implemented
BMPs in protecting water quality from forest road stormwater
discharges. EPA solicits information on what approaches have been or
could be applied nationally regardless of forest road type
[[Page 69657]]
and ownership, as well as which approaches might be best targeted to
specific locations. For instance, performance-based management
strategies may be more effective and less burdensome than approaches
that rely upon prescriptive solutions.
EPA recognizes the importance of prioritization in allocating
resources. For example, protecting beneficial uses such as fish
spawning or public water supply may be a high priority in some areas
while reducing impacts to waters listed as impaired or included in an
existing Total Maximum Daily Load (TMDL) might be a high priority in
other areas. EPA requests information on how existing programs identify
and determine where to allocate resources to prioritize high quality,
or pristine, waters or alternatively, impaired waters, or how to
prioritize focus on certain forest roads that may be more problematic
than others.
Finally, accountability is a key element of a successful approach
ensuring stormwater discharges from forest roads are properly
implemented and managed across the country and that reasonable progress
is made in addressing inadequately managed stormwater discharges from
forest roads. EPA seeks information regarding existing programs, such
as adaptive management approaches, that include accountability measures
such as monitoring, reporting, necessary updates, and consequences for
failure to adhere to the objectives of the management program.
VI. Approaches for Managing Stormwater Discharges From Forest Roads
As described in further detail below, many owners and operators of
forest lands are employing a variety of effective approaches to manage,
operate, comply with and maintain forest roads to control stormwater
discharges. Depending on the jurisdiction, owners or operators use
federal requirements, BMP state program requirements, as well as tribal
requirements, or follow the standards of voluntary programs, including
forest stewardship and sustainability initiatives. Some of these
approaches are used in combinations that may provide a more holistic
approach, which may be more protective and effective.
A. Examples of Existing State and Tribal Programs
Many states and some tribes have programs in place that function to
prevent or minimize forest road stormwater discharge impacts on water
quality. These programs generally establish standards for the design of
forest roads and BMPs. State and tribal programs vary in their
substantive level of protection, specificity and enforceability, and
generally fall into three categories: regulatory, non-regulatory, and
combination programs. Information available to EPA indicates that 15
states have established mandatory BMPs for forest roads and the
remaining 35 states allow for voluntary implementation of BMPs to
control stormwater discharges from forest roads (GLEC, 2008). In some
cases the failure to implement voluntary measures can result in
enforcement where noncompliance leads to a significant risk to water
quality. For example, the California program resembles a permit program
and is mandatory, whereas Florida relies primarily on voluntary
compliance with state-approved road BMPs. The discussion below
describes two existing state programs and briefly describes several
existing tribal programs to illustrate the different approaches used to
address forest road impacts.
Maine provides an example of a state that employs a non-regulatory
forest management program. In a voluntary program, the state typically
develops state-wide forestry BMPs (including measures for forest roads)
and recommends that the forest owners implement the BMPs. Generally,
there are no permit mechanisms or enforcement actions, but many states
with voluntary programs use a hands-on approach that emphasizes
education, outreach, and training for forest owners, loggers, and
others (Maine DEC, 2012).
Maine's forestry BMP program is administered through the Maine
Forest Service (MFS). Broadly, the program consists of voluntary BMPs
implemented by the landowner, monitoring of the BMPs by MFS, and, if
needed, a regulatory ``safety net.'' The primary focus of the MFS
program is training and outreach. MFS works to develop and revise BMPs,
the most recent set being published in 2004. MFS then offers frequent
training courses across the state and online to promote understanding
of the principles and techniques in selecting and installing
appropriate BMPs. Deficiencies in the implementation of BMPs (as
identified by follow-up monitoring or other mechanisms) may lead to
specialized training sessions (Maine DEC, 2012).
The MFS also conducts field monitoring of forestry BMPs. In
collaboration with other stakeholders, a state-wide monitoring protocol
was developed and has been implemented annually at selected sites since
2006. As noted in GLEC (2008), surveys have shown that BMPs are, for
the most part, being consistently implemented and installation rates
have improved substantially over time. When the need for improvements
in BMP application are identified, MFS works cooperatively with the
landowner to address the issue (Maine DEC, 2012).
Maine has a number of state laws that address sediment discharges
to surface waters, including discharges due to timber operations. As
needed, MFS works with other state agencies to identify problems and
address them in a regulatory manner. Most issues are resolved
cooperatively before a regulatory solution is needed (Maine DEC, 2012).
North Carolina has a combination approach for its forest management
program, as it employs elements of both regulatory and non-regulatory
programs. In 1990, the state developed administrative rules (Forest
Practice Guidelines Related to Water Quality (FPGs)). Additionally,
other state laws or interagency agreements can apply to forestry
activities, including the location, construction, and maintenance of
forest roads in wetlands (North Carolina FS, 2012).
The North Carolina Forest Service (NCFS) conducts thousands of
forestry compliance inspections each year and has found high FPG
compliance rates on a statewide basis. More focused implementation-
specific monitoring has been conducted several times since 2000 by the
NCFS and has also shown high implementation rates for forest road BMPs,
despite their voluntary nature. State staff also provide technical
assistance in designing and implementing BMPs and in assessing water
quality. North Carolina revised its BMP manual in 2006 and included
detailed discussions about all aspects of managing forest roads. The
state has implemented a number of training and education programs in
concert with demonstration projects to promote proper BMP usage. North
Carolina agencies also coordinate to ensure that forestry operations
are compliant with state requirements, that inspections are properly
conducted, and that enforcement protocols are appropriately established
(North Carolina FS, 2012).
Across the country, over 300 tribal reservations are significantly
forested, and tribal lands include 17.9 million acres of forest land,
including 7.7 million acres of productive timberland (ITC 2007). Tribal
governments in partnership with the U.S. government dedicate
substantial resources to improving tribal forest management. Much of
the responsibility for managing forests on tribal lands across the
country
[[Page 69658]]
is carried out by the Bureau of Indian Affairs (BIA) with the
involvement of tribal governments. The National Indian Forest Resources
Management Act (NIFRMA), Title III, Public Law 101- 630, directs the
Secretary of the Interior, in consultation with the affected tribes, to
obtain an independent assessment of the status of forest resources on
tribal lands and their management.
NIFRMA requires the development of forestry management plans under
which the forests are managed in accordance with BMPs, as approved
through an interdisciplinary team consisting of forestry experts from
academia, the private sector, forest-managing tribes and the U.S.
Department of Agriculture Forest Service. The Tribal Forest Protection
Act (Pub. L. 108-278) authorizes the Secretary of Agriculture and the
Secretary of the Interior to enter into an agreement or contract with
tribes to carry out projects to protect forests on tribal lands.
Protection of such land is particularly important for tribes because
they pass their land on from generation to generation. This helps to
ensure future availability of natural resources, including healthy
forests and clean water.
Many tribes have taken on significant roles in sustainable forest
management. For example, the Menominee Indian Tribe of Wisconsin
manages the forested portions of the reservation for long-term
sustainability through the Menominee Tribal Enterprises (MTE), which
has received certifications for sustainable management from the Forest
Stewardship Council (FSC)-approved programs conducted by the Scientific
Certification and the Rainforest Alliance. According the MTE Millwork
Web site,\2\ certification is awarded to forest operations that are
well managed in accordance with environmentally and socially
responsible guidelines. The Northern Cheyenne Tribe requires that all
new roads be obliterated and seeded after forest harvesting activities.
Similarly, the Blackfeet Nation has a no net new road miles policy,
which requires the closure of an existing road before a new forest road
may be constructed.
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\2\ http://www.mtemillwork.com/.
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EPA requests comments regarding the implementation, effectiveness
and scope of state, local, and tribal programs, both mandatory and
voluntary, in preventing or minimizing forest road environmental
impacts on water quality. EPA also seeks feedback on which elements are
regarded as necessary for an effective program (for example, an
inventory of forest roads; logger training and outreach; technical
assistance; requirements for best management practices for forest
roads; guidelines for prioritizing and addressing water quality
concerns related to stormwater discharges from existing forest roads;
accountability measures; public involvement and the opportunity for
public input into the development of the state program; a program for
monitoring or auditing to assess program compliance; a program for
monitoring the effectiveness of the roads program in minimizing water
quality impacts; and an adaptive management process to revise BMPs
based on effectiveness monitoring) and how much flexibility is
appropriate for state and tribal programs.
B. Examples of Existing Federal Programs
Federal agencies, such as the U.S. Department of Agriculture Forest
Service (FS) and the Bureau of Land Management (BLM), have established
programs for the management of stormwater discharges from forest roads
on federal lands. These agencies manage large tracts of forested lands,
including lands that are actively being disturbed by road building,
road maintenance, logging operations, unauthorized public and
recreational use or other tasks, and have generally demonstrated sound
environmental stewardship in managing these lands.
FS has developed a number of programs related to managing
discharges from forest roads to improve water quality. For example, FS
is revising its Forest Service Manual and Forest Service Handbook
directives (FSM 2500 \3\ and FSH 2509-19 \4\) on BMPs for water quality
protection on National Forest Service lands. These revisions would
establish national BMPs and associated monitoring protocols on National
Forest Service lands. 70 FR 25824. As part of this effort, FS has
developed a National Core BMP Technical Guide \5\ intended to improve
FS performance and accountability in managing water quality consistent
with the CWA and State water quality programs. This Guide establishes
national core BMPs that address 11 subject areas affecting water
quality, including ``Road Management Activities.'' The Road Management
Activities BMP provisions address: Travel Management Planning and
Analysis; Road Location and Design; Road Construction and
Reconstruction; Road Operations and Maintenance; Temporary Roads; Road
Storage and Decommissioning; Stream Crossings; Snow Removal and
Storage; Parking and Staging Areas; Equipment Refueling and Servicing;
and Road Storm Damage Surveys. Each BMP draws on administrative
directives that guide FS management of roads on NFS land. FS directives
and BMP Guide allow for the use of state, tribal and local requirements
and information to develop site-specific BMPs. They also provide
monitoring of BMP implementation and effectiveness using national core
BMP monitoring protocols and reporting systems. Based on monitoring
results, these mechanisms provide for adaptive management in assessing
implementation, effectiveness, and adjusting practices as needed to
protect water quality. FS has enhanced its Road Preconstruction
Handbook on Design (FSH 7709.59 Chapter 40) as well as the
Transportation Structures Handbook on Hydraulics and Watershed
Protection (FSH 7709.59b CH 60) to include design considerations for
the construction and reconstruction of forest roads which minimize road
and drainage impacts to the watershed. FS Technology and Development
Centers have created a number of publications to assist designers when
addressing road/water interactions http://www.fs.fed.us/eng/pubs/.
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\3\ Watershed and Air Management, Chapter 2530--Water Resource
Management, 2532--Water Quality Management.
\4\ National Best Management Practices, Chapter 10--National
Core Best Management Practices.
\5\ National Best Management Practices for Water Quality
Management on National Forest System Lands, Volume 1: National Core
BMP Technical Guide, United States Department of Agriculture, Forest
Service, FS-990a, April 2012.
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FS has also created the Watershed Condition Framework, an approach
to assessing watersheds in national forests and grasslands,
implementing protective measures and providing for ongoing
monitoring.\6\ FS has developed another program, known as the Legacy
Roads and Trails Program, to identify legacy roads in national forests
and grasslands, and to minimize the discharge of stormwater by
decommissioning or upgrading them.\7\ FS also publishes documents for
specific regions or types of forests that contain information on forest
road construction and maintenance, as well as information on
appropriate BMPs.\8\
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\6\ http://www.fs.fed.us/sites/default/files/Watershed_Condition_Framework.pdf.
\7\ http://www.fs.fed.us/restoration/Legacy_Roads_and_Trails/.
\8\ See, for example, http://www.fs.usda.gov/Internet/FSE_DOCUMENTS/stelprdb5362512.pdf and http://www.fs.usda.gov/Internet/FSE_DOCUMENTS/stelprdb5399662.pdf.
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FS has also developed a suite of tools for the identification and
prioritization of road segments at risk for contributing
[[Page 69659]]
to water quality problems.\9\ These tools operate at scales of detail
ranging from using corporate road databases and digital elevation data
to using detailed GPS surveys. These tools have been applied in
watershed sediment load reduction plans for waters listed as impaired
under the CWA \10\ and in forest restoration projects under the
Collaborative Forest Landscape Restoration Program in the states of
Idaho, Montana,\11\ and California. FS maintains an applied science
program on road-related sediment risks to support all of the above
efforts (see, for example, Luce et al., 2001; Switalski et al., 2004).
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\9\ See, for example, http://www.fs.fed.us/GRAIP/.
\10\ See, for example, http://water.epa.gov/polwaste/nps/success319/id_bear.cfm.
\11\ See, for example, http://www.fs.fed.us/GRAIP/downloads/case_studies/WatershedStudies_LoloHelenaFlatheadNFs_SWCC_2014%20Final%20Report.pdf
.
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BLM is a significant owner and manager of forests and woodlands on
federal lands as well, primarily in the western U.S. and Alaska.
Similar to FS, a full suite of activities are authorized and managed on
BLM forests and woodlands, including timber harvesting, hazardous fuel
reduction treatments, recreation, fish and wildlife conservation, oil
and gas activities, and grazing. Authorized uses in forests and
woodlands, such as timber harvesting, often include road construction
and maintenance, which are broadly governed by policies, standards, and
right of way agreements that ensure proper design and upkeep.\12\ The
BLM's Land Use Planning Handbook, which includes guidance for the
development of BLM land use plans developed under section 202 of the
Federal Land Policy and Management Act (FLPMA) and implementation of
other BLM actions, provides broad agency direction for BLM to use BMPs
to meet the standards and goals of the CWA, to address various
protection measures to mitigate impacts to human health concerns,
ecosystem health, riparian areas, and overall watershed conditions, and
to meet state and local water quality requirements.\13\ One recent
example on how BLM has incorporated this guidance into the planning
process for management of lands that include forest roads can be found
in Appendix I of the recently released western Oregon Draft Resource
Management Plan/Environmental Impact Statement (Appendix I).\14\
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\12\ http://www.blm.gov/wo/st/en/prog/more/forests_and_woodland.html.
\13\ http://www.blm.gov/style/medialib/blm/ak/aktest/planning/planning_general.Par.65225.File.dat/blm_lup_handbook.pdf.
\14\ http://www.blm.gov/or/plans/rmpswesternoregon/deis.php.
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One example of multiple agencies coordinating to implement BMPs in
a particular region of forests is the Northwest Forest Plan under the
Aquatic Conservation Strategy. The recently released ``Northwest Forest
Plan Interagency Regional Monitoring, 20-Year Report, Status and Trend
of Watershed Condition'' summarizes the results of the 20-year
interagency effort to implement an array of protective measures
including BMPs to maintain watershed health in that region.\15\
Finally, BLM has partnered with the Society of America Foresters (SAF)
to foster proper forest management techniques on BLM lands
nationwide.\16\
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\15\ http://www.reo.gov/monitoring/reports/20yr-report.
\16\ http://www.blm.gov/style/medialib/blm/wo/Planning_and_Renewable_Resources/0.Par.97719.File.dat/BLM_MOU_WO-200-2009-03.pdf.
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EPA welcomes comments on the implementation, effectiveness and
scope of these federal programs and how they work in coordination with
state and tribal programs to assist EPA in developing its response to
the 2003 remand in EDC v. EPA, but emphasizes that this is not the
forum for evaluating specific elements of FS or BLM programs.
C. Examples of Third-Party Certification Programs
In recent years, forestry organizations, such as the Sustainable
Forestry Initiative (SFI) and Forest Stewardship Council (FSC), have
developed non-governmental third-party certification programs to
address water quality impacts from forest roads. A wide variety of
certification programs exist worldwide, but most have common elements
such as standards for responsible forest management and harvesting,
third-party audits, documentation, and publication. These certification
programs address many aspects of forest management, but they
specifically include management practices for mitigating water quality
impacts resulting from stormwater discharges from forest roads. Also,
these programs typically avoid developing a single set of standards and
acknowledge necessary regional variation in BMPs.
Certification programs are, at their core, market- or consumer-
driven. Certification is incorporated into a chain-of-custody process
that permits a producer of consumer products (for example, paper,
lumber, and furniture) to apply a ``green'' or ``eco-friendly'' label
to those products as recognition of responsible sourcing and to
ultimately influence consumer purchasing choices that translate into
increased sales. Some producers of end products may only accept raw
materials that meet certification program requirements; for example, a
paper mill might not accept raw materials that do not have
certification. The recent rise in prominence of certification programs
coincides with other studies (for example, Ice et al., 2010) showing
increases in the implementation rates of BMPs over the same period.
SFI grew out of a program developed by the American Forest & Paper
Association and relies on a system of principles and objectives. A set
of BMP-related requirements must be met for forest owners, loggers, and
others to attain SFI's certification for forest fiber sourcing.
Performance measures focus on adherence to applicable water quality
laws and installation of BMPs, with performance criteria that include
developing an overall program for certification and compliance,
monitoring of BMPs during all phases of forestry activities, mapping of
water resources, and recordkeeping. Third-party audits (typically
conducted annually) verify the certification process. This program is
also already a central element in many of the states' forestry training
programs and also includes outreach to landowners and support for
various research efforts.
FSC's program places an emphasis on conservation, as well as social
and economic criteria. Similar to SFI, FSC's program relies on a series
of overarching principles and more specific performance criteria. One
such criterion specifies that forest owners must develop written plans
to address erosion and other impacts associated with forest operations.
Specific guidelines for forest roads include minimizing erosion,
avoiding water crossings, and minimizing habitat fragmentation. FSC
offers two types of certification: one for forest managers and another
for entities involved in the intermediate and end uses of the wood
products.
Like the state and federal programs, these programs are revised
over time. For example, in 2015, SFI revised the standards that guide
their certification program; the new standards specifically mention
managing water quality impacts resulting from the construction and use
of forest roads. Data also suggest that BMP implementation rates are
substantially higher in forests that participate in certification
programs (Texas Forest Service, 2011).
EPA requests comments on the implementation, effectiveness and
scope
[[Page 69660]]
of the elements of these third-party certification programs that
address runoff from forest roads. EPA also welcomes comments from the
organizations administering these programs. In particular, EPA seeks
comment on how programs such as these fit with or complement other
programs; for example, whether and to what extent these industry or
non-governmental programs fill gaps in state and tribal programs.
VII. Request for Comments and Data
EPA encourages public comments to inform EPA's upcoming decision as
to whether there is a need for additional regulation of stormwater
discharges from forest roads. Requests for comment can be found
throughout this notice in the sections where they are discussed. This
section specifically requests comment on the issues below. To the
extent possible, EPA requests that comments provide concrete examples
or quantitative data.
1. For purposes of the discussion in this notice, EPA uses the term
``forest road'' to mean a road located on forested land, and the term
``logging road'' to mean a forest road that is used to support logging
activities. That is, as used in this notice, logging roads are a subset
of forest roads. However, the Agency has not established regulatory
definitions of ``forest road,'' ``logging road,'' or ``forested land''
and welcomes comment on whether and how EPA should define these terms.
EPA is also interested in the way in which states, tribes, and other
federal agencies currently define them. EPA recognizes that some forest
roads are built initially to support logging activities but later serve
other purposes that may or may not continue to include support for
logging activities. EPA requests comment on the way in which states,
tribes, and other federal agencies distinguish among such forest roads.
2. EPA seeks comment on the implementation, effectiveness, and
scope of existing federal, state, local, tribal, and other programs in
addressing stormwater discharges from forest roads. EPA encourages
submittal of specific information (for example, BMP implementation
rates, effectiveness of implemented BMPs to protect water quality,
pollutant reduction studies, audit results, and examples of adaptive
management).
3. EPA requests comments on what specific elements of a forest road
program are most important to ensure it is effective and protective of
water quality. For example, forest road programs may include an
inventory of forest roads; a requirement for BMPs; a systematic
planning process for prioritizing and addressing water quality concerns
related to stormwater discharges from existing roads; an accountability
measure; an opportunity for public involvement in the development and
management of the program; water quality monitoring to assess
effectiveness of the program; and/or an adaptive management process to
revise BMPs based on effective monitoring.
4. EPA also invites comments on what additional measures,
consistent with federal law, could be implemented in existing programs
to increase water quality protection from forest roads stormwater
discharges where necessary.
IX. References
A list of references cited in this notice is available at http://www.regulations.gov/ under Docket ID No. EPA-HQ-OW-2015-0668.
Fly, C., Grover-Wier, K., Thornton, J., Black, T., Luce, C. 2010
Bear Valley Road Inventory (GRAIP) Report In Support of the Bear
Valley Category 4b Demonstration. US Department of Agriculture,
Forest Service, Boise National Forest. 54 pp.
Georgia Forestry Commission. 2009. Georgia's Best Management
Practices for Forestry. May 2009.
Great Lakes Environmental Center (GLEC). 2008. National Level
Assessment of Water Quality Impairments Related to Forest Roads and
Their Prevention by Best Management Practices: Final Report.
December 4, 2008. By Douglas Endicott.
Ice, G.G., E. Schilling, and J. Vowell. 2010. Trends for forestry
best management practice implementation. Journal of Forestry
108:267-273.
Intertribal Timber Council (ITC), 2007. National Overview of Tribal
Forestry. Proceedings in Trust and Transition: Perspectives on
Native American Forestry. April 30, 2007. University of Washington.
Luce, C.H. and T.A. Black. 1999. Sediment Production from Forest
Roads in Western Oregon. Water Resources Research, Vo. 35, No. 8 p.
2561-2570.
Luce, C.H. and T.A. Black. 2001. Effects of Traffic and Ditch
Maintenance on Forest Road Sediment Production. V64-V74, Proceedings
of the Seventh Federal Interagency Sedimentation Conference, 25-29
March 2001, Reno, NV.
Luce, C. H., B. E. Rieman, J. B. Dunham, J. L. Clayton, J. G. King,
and T. A. Black (2001), Incorporating Aquatic Ecology into Decisions
on Prioritization of Road Decommissioning, Water Resources Impact,
3(3), 8-14.
Maine Department of Conservation (DEC). Comment letter on EPA's May
23, 2012 Notice of Intent. June 19, 2012. By Doug Denico. Document
ID EPA-HQ-OW-2012-0195-0170.
National Council for Air and Stream Improvement (NCASI). 2012.
Assessing the Effectiveness of Contemporary Forest Best Management
Practices (BMPs): Focus on Roads. Special Report 12-01. January
2012. By Dr. G.G Ice and Dr. E.B. Schilling.
Nelson, N., Cissel, R., Black, T., Luce, C. 2011. Monitoring Road
Decommissioning in the Mann Creek Watershed: Post-storm Report
Payette National Forest. US Department of Agriculture, Forest
Service, Rocky Mountain Research Station. 33 pp.
North Carolina Forest Service (FS). 2012. Comment letter on EPA's
May 23, 2012 Notice of Intent. June 21, 2012. By Wib Owen. Document
ID EPA-HQ-OW-2012-0195-0100.
Sustainable Forestry Initiative (SFI). 2015. SFI 2015-2019 Standards
and Rules: Standards, Rules for Label Use, Procedures and Guidance.
January 2015.
Switalski, T. A., J. A. Bissonette, T. H. DeLuca, C. H. Luce, and M.
A. Madej (2004), Benefits and impacts of road removal, Frontiers in
Ecology and the Environment, 2(1), 21-28.
Texas Forest Service. 2011. Voluntary Implementation of Forestry
Best Management Practices in East Texas: Results from Round 8 of BMP
Implementation Monitoring. December 2011 By H. Simpson, C. Coup, and
C. Duncan.
United States Environmental Protection Agency (USEPA). 2005.
National Management Measures to Control Nonpoint Pollution from
Forestry. EPA-841-B-05-001. Washington, DC: USEPA Office of Water.
April 2005.
United States Forest Service (USFS). 2012. National Best Management
Practices for Water Quality Management on National Forest System
Lands, Volume 1: National Core BMP Technical Guide, United State
Department of Agriculture, Forest Service, FS-990a, April 2012.
Dated: October 31, 2015.
Kenneth J. Kopocis,
Deputy Assistant Administrator, Office of Water.
[FR Doc. 2015-28649 Filed 11-9-15; 8:45 am]
BILLING CODE 6560-50-P