49–006 

113TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 113–607 

SILVICULTURE REGULATORY CONSISTENCY ACT OF 2013 

NOVEMBER 12, 2014.—Committed to the Committee of the Whole House on the 

State of the Union and ordered to be printed 

Mr. SHUSTER, from the Committee on Transportation and 

Infrastructure, submitted the following 

R E P O R T 

together with 

ADDITIONAL VIEWS 

[To accompany H.R. 2026] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Transportation and Infrastructure, to whom 

was referred the bill (H.R. 2026) to amend the Federal Water Pollution Control Act to exempt certain silvicultural activities from national pollutant discharge elimination system permitting requirements, and for other purposes, having considered the same, report 

favorably thereon without amendment and recommend that the bill 

do pass. 

CONTENTS 

Page 

Purpose of Legislation ............................................................................................. 2 

Background and Need for Legislation .................................................................... 2 

Hearings ................................................................................................................... 4 

Legislative History and Consideration .................................................................. 5 

Committee Votes ...................................................................................................... 5 

Committee Oversight Findings ............................................................................... 5 

New Budget Authority and Tax Expenditures ...................................................... 5 

Congressional Budget Office Cost Estimate .......................................................... 5 

Performance Goals and Objectives ......................................................................... 6 

Advisory of Earmarks .............................................................................................. 6 

Duplication of Federal Programs ............................................................................ 6 

Disclosure of Directed Rule Makings ..................................................................... 7 

Federal Mandate Statement ................................................................................... 7 

Preemption Clarification ......................................................................................... 7 

Advisory Committee Statement .............................................................................. 7 

Applicability to Legislative Branch ........................................................................ 7 


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Section-by-Section Analysis of Legislation ............................................................ 7 

Changes in Existing Law Made by the Bill, as Reported ..................................... 8 

Additional Views ...................................................................................................... 10 

PURPOSE OF LEGISLATION

The purpose of H.R. 2026 is to exempt certain silvicultural activities from National Pollutant Discharge Elimination System permitting requirements under the Federal Water Pollution Control Act. 

BACKGROUND AND NEED FOR LEGISLATION

The Clean Water Act 

In 1972, Congress passed the Federal Water Pollution Control 

Act Amendments of 1972 (commonly known as the Clean Water 

Act or the CWA; 33 U.S.C. § 1251 et seq.). The objective of the CWA 

is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters. The primary mechanism for achieving this objective is the CWA’s prohibition on the discharge of any 

pollutant from a point source to a jurisdictional waterbody without 

a National Pollutant Discharge Elimination System (NPDES) permit. (See CWA §§ 301, 402.) 

The CWA defines a ‘‘point source’’ 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. This term does not include agricultural stormwater discharges and return flows from irrigated agriculture.’’ (See CWA 

§ 502(14).) 

The Environmental Protection Agency (EPA) has the authority to 

regulate the discharge of pollutants from point sources either 

through general permits or through individual permits. NPDES 

permits specify limits on what pollutants may be discharged from 

point sources and in what amounts. Under the CWA, 46 states currently have authorized programs and are authorized to implement 

and enforce NPDES permits. The EPA manages the CWA program 

in the remaining states and territories. 

NPDES permits are the basic regulatory tool of the CWA. The 

EPA or an authorized state may issue compliance orders or file 

civil suits against those who violate the terms of a permit. In addition, in the absence of federal or state action, individuals may bring 

a citizen suit in United States District Court against those who violate the terms of an NPDES permit or against those who discharge 

without a valid permit. 

Forest Roads under the Clean Water Act 

In 1976, the EPA adopted administrative regulations governing 

the NPDES permit program, including the ‘‘Silvicultural Rule,’’ 

which defined forestry activities. (See 40 CFR § 122.27 (Silvicultural activities).) In these regulations, the EPA identified those forestry activities the Agency considered to be ‘‘silvicultural point 

sources’’ subject to NPDES permit program, and forestry activities 

the Agency considered to be ‘‘nonpoint sources,’’ not subject to regulation under the CWA. (Id.) 


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The EPA defined ‘‘silvicultural point sources’’ as ‘‘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.’’ (40 CFR 

§ 122.27(b)(1).) The rule went on to specifically exclude ‘‘nonpoint 

source silvicultural activities, including harvesting, site-preparation, pest and disease control, thinning, cultural treatment, prescribed burning, reforestation, and road construction and maintenance from which there is runoff from precipitation events.’’ (Id.) 

In the preamble, the EPA noted that these nonpoint source silvicultural activities are effectively addressed under state best management practice programs. (41 Fed. Reg. 24709, 24710 (June 18, 

1976).) The EPA amended the final phrase of the exclusion in 1980 

to read ‘‘from which there is natural runoff,’’ stating at the time 

that they intended no change in meaning. (45 Fed. Reg. 33447 

(1980).) 

In 1987, Congress adopted a variety of amendments to the CWA 

in the Water Quality Act of 1987. One of the more significant 

amendments was establishment of a two-phase process to regulate 

stormwater discharges under the NPDES program. (CWA § 402(p).) 

In these amendments, Congress intended to clarify the EPA’s existing responsibility to regulate point source stormwater discharges of 

pollutants. In CWA section 402(p)(2), Congress identified specific 

discharge categories requiring NPDES permits in Phase 1. Among 

the activities subject to the mandatory NPDES permit requirement 

are ‘‘discharges associated with industrial activities.’’ (Id.) 

The EPA developed regulations to implement new stormwater 

NPDES permitting requirements under the NPDES program. The 

EPA adopted Phase 1 regulations in 1990, including an extensive 

definition of ‘‘discharges associated with industrial activity’’ in section 122.26(b)(14) of title 40 of the Code of Federal Regulations. (55 

Fed. Reg. 47990, 48063 (November 16, 1990).) 

In the 1990 regulation, EPA added to the Phase I rule an exception from the definition of industrial activity for all activities excluded from the NPDES permit requirement in Part 122 of title 40 

of the Code of Federal Regulations. (See 40 C.F.R. § 122.26(b)(14) 

(‘‘The term does not include discharges from facilities or activities 

excluded from the NPDES program under this part 122.’’).) In addition, the EPA expressly stated in the preamble to its Phase 1 regulations that the definition of ‘‘storm water discharges associated 

with industrial activity’’ specifically excluded activities listed in 

section 122.27 of title 40 of the Code of Federal Regulations, namely, the Silvicultural Rule. (See 55 Fed. Reg. at 48011.) However, 

EPA also stated that it intended to examine the scope of the Silvicultural Rule in a future study of stormwater discharges. (Id.) 

The EPA issued NPDES regulations for Phase 2 stormwater discharges in 1999. (64 Fed. Reg. 68722 (December 8, 1999).) In the 

Phase 2 stormwater regulations, the EPA rejected a comment to include forest or logging roads as a regulated discharge, based on the 

Silvicultural Rule. 

Since promulgating the Silvicultural Rule in 1976, the EPA had 

never required an NPDES permit for nonpoint source silvicultural 

activities, including forest or logging roads. For the past 37 years, 

under the Silvicultural Rule, the management of forest roads 


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across 755 million acres of public, private, state, and tribal forests 

in the United States has been guided by state laws using best management practices and as nonpoint sources under the CWA. 

Litigation on the Silvicultural Rule and Responses 

Since the 1990s, the issue of whether discharges from forest 

roads and other forestry activities should be covered by the NPDES 

requirements of the Clean Water Act has been heavily litigated. In 

several of these cases, the courts sided with the Federal government’s position that stormwater associated with nonpoint source 

forestry activities designated in the Silvicultural Rule were not covered by the NPDES requirements of the Act. 

However, in 2011, the Federal Court of Appeals for the Ninth 

Circuit ruled (in Northwest Environmental Defense Center v. 

Brown) that discharges of stormwater from ditches alongside logging roads were ‘‘associated with industrial activities,’’ and therefore were required to have an NPDES permit. 

The Federal government disagreed with the interpretation of the 

Ninth Circuit, and maintained that those discharges from logging 

roads (previously excluded from the CWA permitting requirements 

under 40 C.F.R. § 122.27) are not associated with industrial activities, but are nonpoint source silvicultural activities that do not require a permit. The Supreme Court overturned the decision of the 

9th Circuit by a 7–to–1 vote (in the now-renamed case Decker v. 

Northwest Environmental Defense Center). In this case, the Supreme Court ruled that EPA’s interpretation that defined certain 

discharges related to silvicultural operations as nonpoint sources, 

and therefore, not subject to the CWA’s permit requirements, was 

permissible, and remanded the decision to the Ninth Circuit. 

While the Supreme Court was deliberating Decker, EPA proposed 

to clarify Federal regulations by specifying those silvicultural-related activities that the agency considered ‘‘associated with industrial activities’’ that would require NPDES permits for stormwater 

runoff. That rulemaking, finalized on November 30, 2012 (77 Fed. 

Reg. 72970), reaffirmed those specific activities related to silvicultural operations that have long been subject to the permitting requirements of the CWA (e.g., rock crushing, gravel washing, log 

sorting, or log storage facilities.) At the same time, the agency 

clarified that discharges of stormwater from silvicultural activities 

other than the four activities specifically identified above do not require a NPDES permit. A lawsuit challenging the December 2012 

rulemaking was filed in January 2013 (Northwest Environmental 

Defense Center v. Jackson, No. 13–70057, 9th Cir.), and was withdrawn in November 2013. 

In light of the litigation and regulatory actions, which resulted 

in uncertainty in the regulatory status of forest roads under CWA, 

the sponsors of H.R. 2026 introduced legislation to statutorily (and 

permanently) exempt those nonpoint source activities that were 

identified in the Silvicultural Rule from the NPDES requirements 

of the CWA. 

HEARINGS

No hearings were held on H.R. 2026. 


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LEGISLATIVE HISTORY AND CONSIDERATION

On May 16, 2013, Representative Jaime Herrera Beutler of 

Washington introduced H.R. 2026, the Silviculture Regulatory Consistency Act of 2013, a bill to amend the Federal Water Pollution 

Control Act to exempt certain silvicultural activities from National 

Pollutant Discharge Elimination System permitting requirements. 

On October 29, 2013, the Committee on Transportation and Infrastructure met in open session to consider H.R. 2026, and ordered 

the bill reported favorably to the House by voice vote with a 

quorum present. 

In the 112th Congress, the Committee on Transportation and Infrastructure ordered a virtually identical bill (H.R. 2541) reported 

favorably to the House by voice vote. 

COMMITTEE VOTES

Clause 3(b) of rule XIII of the House of Representatives requires 

each committee report to include the total number of votes cast for 

and against on each record vote on a motion to report and on any 

amendment offered to the measure or matter, and the names of 

those members voting for and against. There were no record votes 

taken in connection with consideration of H.R. 2026, or ordering 

the bill reported. A motion to order H.R. 2026 reported favorably 

to the House was agreed to by voice vote with a quorum present. 

COMMITTEE OVERSIGHT FINDINGS

With respect to the requirements of clause 3(c)(1) of rule XIII of 

the Rules of the House of Representatives, the Committee’s oversight findings and recommendations are reflected in this report. 

NEW BUDGET AUTHORITY AND TAX EXPENDITURES

Clause 3(c)(2) of rule XIII of the Rules of the House of Representatives does not apply where a cost estimate and comparison prepared by the Director of the Congressional Budget Office under section 402 of the Congressional Budget Act of 1974 has been timely 

submitted prior to the filing of the report and is included in the report. Such a cost estimate is included in this report. 

CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

With respect to the requirement of clause 3(c)(3) of rule XIII of 

the Rules of the House of Representatives and section 402 of the 

Congressional Budget Act of 1974, the Committee has received the 

enclosed cost estimate for H.R. 2026 from the Director of the Congressional Budget Office: 

U.S. CONGRESS, 

CONGRESSIONAL BUDGET OFFICE, 

Washington, DC, November 5, 2013. 

Hon. BILL SHUSTER, Chairman, 

Committee on Transportation and Infrastructure, 

House of Representatives, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 2026, the Silviculture 

Regulatory Consistency Act of 2013. 


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If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Susanne S. Mehlman. 

Sincerely, 

DOUGLAS W. ELMENDORF. 

Enclosure. 

H.R. 2026—Silviculture Regulatory Consistency Act of 2013 

H.R. 2026 would prohibit the Environmental Protection Agency 

(EPA) from requiring a point source discharge permit (a type of 

permit issued under the National Pollutant Discharge Elimination 

System) for water discharges from the following silvicultural activities: nursery operations; site preparation; reforestation; timber 

thinning; prescribed burning; pest and fire control; harvesting operations; surface drainage; or road use, construction, and maintenance. 

According to EPA, notwithstanding ongoing litigation regarding 

silvicultural activities, a December 2012 rule regarding permitting 

for stormwater discharges from logging roads largely addresses the 

changes to current law proposed under this bill. Thus, CBO estimates that enacting this legislation would result in no significant 

impact on the federal budget. Pay-as-you-go procedures do not 

apply to H.R. 2026 because enacting the bill would not affect direct 

spending or revenues. 

H.R. 2026 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act and would 

impose no costs on state, local, or tribal governments. 

The CBO staff contact for this estimate is Susanne S. Mehlman. 

This estimate was approved by Theresa Gullo, Deputy Assistant 

Director for Budget Analysis. 

PERFORMANCE GOALS AND OBJECTIVES

With respect to the requirement of clause 3(c)(4) of rule XIII of 

the Rules of the House of Representatives, the performance goal 

and objective of this legislation is to exempt the conduct of certain 

silvicultural activities from National Pollutant Discharge Elimination System permitting requirements. 

ADVISORY OF EARMARKS

Pursuant to clause 9 of rule XXI of the Rules of the House of 

Representatives, the Committee is required to include a list of congressional earmarks, limited tax benefits, or limited tariff benefits 

as defined in clause 9(e), 9(f), and 9(g) of rule XXI of the Rules of 

the House of Representatives. No provision in the bill includes an 

earmark, limited tax benefit, or limited tariff benefit under clause 

9(e), 9(f), or 9(g) of rule XXI. 

DUPLICATION OF FEDERAL PROGRAMS

Pursuant to section 3(j) of H. Res. 5, 113th Cong. (2013), the 

Committee finds that no provision of H.R. 2026 establishes or reauthorizes a program of the federal government known to be duplicative of another federal program, a program that was included in 

any report from the Government Accountability Office to Congress 

pursuant to section 21 of Public Law 111–139, or a program related 


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to a program identified in the most recent Catalog of Federal Domestic Assistance. 

DISCLOSURE OF DIRECTED RULE MAKINGS

Pursuant to section 3(k) of H. Res. 5, 113th Cong. (2013), the 

Committee estimates that enacting H.R. 2026 does not specifically 

direct the completion of any specific rule makings within the meaning of section 551 of title 5, United States Code. 

FEDERAL MANDATE STATEMENT

The Committee adopts as its own the estimate of federal mandates prepared by the Director of the Congressional Budget Office 

pursuant to section 423 of the Unfunded Mandates Reform Act 

(P.L. 104–4). 

PREEMPTION CLARIFICATION

Section 423 of the Congressional Budget Act of 1974 requires the 

report of any Committee on a bill or joint resolution to include a 

statement on the extent to which the bill or joint resolution is intended to preempt state, local, or tribal law. The Committee states 

that H.R. 2026 does not preempt any state, local, or tribal law. 

ADVISORY COMMITTEE STATEMENT

No advisory committees within the meaning of section 5(b) of the 

Federal Advisory Committee Act are created by this legislation. 

APPLICABILITY OF LEGISLATIVE BRANCH

The Committee finds that the legislation does not relate to the 

terms and conditions of employment or access to public services or 

accommodations within the meaning of section 102(b)(3) of the Congressional Accountability Act (P.L. 104–1). 

SECTION-BY-SECTION ANALYSIS OF LEGISLATION

Section 1. Short title 

Section 1 of H.R. 2026 provides the short title of the bill. The section states that the Act may be cited as the ‘‘Silviculture Regulatory Consistency Act of 2013.’’ 

Section 2. Silvicultural activities 

The legislation intends to codify the EPA’s Silvicultural Rule by 

amending section 402 of the CWA to exclude specific forest management activities and forest roads from permits and other regulation under the point source stormwater program. 

H.R. 2026 amends Section 402(l) of the Clean Water Act, which 

provides limitations on the requirement to obtain an NPDES permit for certain types of discharges. Section 2 of the bill adds an additional limitation on the requirement to obtain an NPDES permit, 

by adding a new paragraph (3), entitled ‘‘Silvicultural Activities,’’ 

at the end of section 402(l). 

New paragraph (3)(A) provides that the EPA Administrator shall 

neither require an NPDES permit or otherwise promulgate regulations under this section, nor directly or indirectly require any state 


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to require an NPDES permit, for a discharge of stormwater runoff 

resulting from the conduct of the following silvicultural activities: 

nursery operations, site preparation, reforestation and subsequent 

cultural treatment, thinning, prescribed burning, pest and fire control, harvesting operations, surface drainage, and road use, construction, and maintenance, from which there is runoff. The legislation does not affect the EPA’s requirement for permits for silvicultural point sources, namely discernible, confined, and discrete conveyances related to rock crushing, gravel washing, log sorting, and 

log storage facilities that are operated in connection with silvicultural activities and from which pollutants are discharged into jurisdictional waters, and does not alter the current regulatory treatment of discharges that have long been regulated under existing industrial stormwater regulations, such as EPA’s Multi-Sector General Permit for Industrial Stormwater as it pertains to the timber 

products sector. The legislation also does not alter existing requirements related to construction activities for currently regulated facilities. 

New paragraph (3)(B) specifies that the NPDES permitting limitation added by the bill does not exempt the conduct of a silvicultural activity resulting in the discharge of dredged or fill material 

from any applicable permitting requirement under section 404 of 

the CWA (pertaining to permits for the discharge of dredged or fill 

material into jurisdictional waters). 

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the 

House of Representatives, changes in existing law made by the bill, 

as reported, are shown as follows (new matter is printed in italic, 

existing law in which no change is proposed is shown in roman): 

FEDERAL WATER POLLUTION CONTROL ACT 

* * * * * * * 

TITLE IV—PERMITS AND LICENSES 

* * * * * * * 

NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM

SEC. 402. (a) * * * 

* * * * * * * 

(l) LIMITATION ON PERMIT REQUIREMENT.— 

(1) * * * 

* * * * * * * 

(3) SILVICULTURAL ACTIVITIES.— 

(A) NPDES PERMIT REQUIREMENTS FOR SILVICULTURAL

ACTIVITIES.—The Administrator shall not require a permit 

or otherwise promulgate regulations under this section or 

directly or indirectly require any State to require a permit 

under this section for a discharge of stormwater runoff resulting from the conduct of the following silviculture activities: nursery operations, site preparation, reforestation and 

subsequent cultural treatment, thinning, prescribed burnVerDate Sep 11 2014 01:37 Nov 18, 2014 Jkt 049006 PO 00000 Frm 00008 Fmt 6659 Sfmt 6603 E:\HR\OC\HR607.XXX HR607

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ing, pest and fire control, harvesting operations, surface 

drainage, and road use, construction, and maintenance. 

(B) PERMITS FOR DREDGED OR FILL MATERIAL.—Nothing 

in this paragraph exempts a silvicultural activity resulting 

in the discharge of dredged or fill material from any permitting requirement under section 404. 

* * * * * * * 


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ADDITIONAL VIEWS 

The stated intent of H.R. 2026 is to return Clean Water Act permitting of silvicultural operations around forest roads to the same 

standards that applied before recent court decisions created uncertainty about which standards should be used. Before court actions, 

a Clean Water Act permit was not required for nursery operations, 

site preparation, reforestation and subsequent cultural treatment, 

thinning, prescribed burning, pest and fire control, harvesting operations, surface drainage, or road use, construction, and maintenance. Permits were required for activities that involved rock 

crushing, gravel washing, log sawing and log storage. That standard has worked for many years, and, as a cosponsor of H.R. 2026, 

I support continuing that standard. 

However, the Environmental Protection Agency (EPA) has informed the Committee that the language in H.R. 2026 could create 

legal ambiguity on what should and should not be covered with a 

Clean Water Act permit. EPA further indicates that returning to 

the language contained in similar legislation passed by the House 

in the 112th Congress, H.R. 2541, would address this concern. 

Clarification that the intent of the bill is simply to return to the 

old standards may need to be made should this bill advance further 

in the legislative process. 

The bill’s sponsors have consistently indicated that the intent of 

this bill is to return to the long-standing silviculture rule used by 

the EPA. I support that effort and I am hopeful that any ambiguity 

in the bill’s drafting can be addressed before it is signed into law. 

RICK LARSEN. 

Æ 


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