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[Federal Register Volume 77, Number 100 (Wednesday, May 23, 2012)]
[Proposed Rules]
[Pages 30473-30481]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-12524]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 122

[FRL-9671-5; EPA-HQ-OW-2012-0195]

Notice of Intent To Revise Stormwater Regulations To Specify That 
an NPDES Permit Is Not Required for Stormwater Discharges From Logging 
Roads and To Seek Comment on Approaches for Addressing Water Quality 
Impacts From Forest Road Discharges

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of Intent.

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SUMMARY: The EPA intends to expeditiously propose revisions to its 
Phase I stormwater regulations to specify that stormwater discharges 
from logging roads \1\ are not stormwater discharges ``associated with 
industrial activity.'' This notice of intent is in

[[Page 30474]]

response to the Ninth Circuit Court of Appeals which found in Northwest 
Environmental Defense Center v. Brown that certain logging roads are 
stormwater point sources ``associated with industrial activity.'' 
Additionally, EPA is seeking comment on approaches for addressing water 
quality impacts associated with discharges of stormwater from forest 
roads. Where appropriate best management practices (BMPs) are used, 
receiving waters can be protected and impacts can be minimized. If not 
properly managed, however, stormwater discharges from some forest roads 
can cause preventable impairments to water quality. EPA believes that 
stormwater discharges from forest roads should be evaluated under 
section 402(p)(6) of the Clean Water Act because the section allows for 
a broad range of flexible approaches that are well-suited to address 
the complexity of forest road ownership, management, and use. Section 
402(p) of the Clean Water Act allows EPA to consider a range of 
regulatory and non-regulatory approaches and determine which forest 
road discharges (if any) should be regulated under 402(p)(6). The EPA 
intends to study the water quality impacts of forest roads and existing 
federal, state, tribal, and voluntary programs designed to address them 
to determine if additional Agency action is necessary. The EPA will 
seek input again prior to taking additional action.
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    \1\ EPA notes that the 9th Circuit decision in NEDC v. Brown 
addressed only certain logging roads, not forest roads more 
generally. EPA interprets the decision as not affecting the status 
of silvicutural activities other than logging roads. EPA's 
regulations at 40 CFR 122.26(b)(14) and 122.27 exclude most 
silviculture activities from the requirement to obtain an NPDES 
stormwater permit, with certain exceptions.

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DATES: Comments must be received on or before June 22, 2012.

ADDRESSES: You may submit comments, identified by docket number EPA-HQ-
OW-2012-0195, by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Water Docket, Environmental Protection Agency, 
Mailcode: 2822T, 1200 Pennsylvania Avenue NW., Washington DC, 20460, 
Attention Docket ID No. EPA-HQ-OW-2012-0195.
     Hand Delivery/Courier: EPA Docket Center, (EPA/DC) EPA 
West, Room 3334, 1301 Constitution Avenue NW., Washington, DC 20460. 
Such deliveries are only accepted during the Docket's normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OW-2012-
0195. The EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov or email. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means the EPA will not know 
your identity or contact information unless you provide it in the body 
of your comment. If you send an email comment directly to the EPA 
without going through http://www.regulations.gov, your email address 
will be automatically captured and included as part of the comment that 
is placed in the public docket and made available on the Internet. If 
you submit an electronic comment, the EPA recommends that you include 
your name and other contact information in the body of your comment and 
with any disk or CD-ROM you submit. If the EPA cannot read your comment 
due to technical difficulties and cannot contact you for clarification, 
the EPA may not be able to consider your comment. Electronic files 
should avoid the use of special characters, any form of encryption, and 
be free of any defects or viruses. For additional information about the 
EPA's public docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statue. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the Water Docket, EPA 
Docket Center, EPA/DC, EPA West, Room B102, 1301 Constitution Ave. NW., 
Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 
p.m., Monday through Friday, excluding legal holidays. The telephone 
number for the Public Reading Room is (202) 566-1744, and the telephone 
number for the Water Docket is (202) 566-2426.

FOR FURTHER INFORMATION CONTACT: For further information on this 
notice, you may contact Jeremy Bauer, EPA Headquarters, Office of 
Water, Office of Wastewater Management via email at 
bauer.jeremy@epa.gov or telephone at 202-564-2775.

SUPPLEMENTARY INFORMATION: 

I. General Information

A. Applicability

    This notice does not impose requirements on any entity. If you have 
questions regarding the applicability of this notice, consult the 
person listed in the preceding FOR FURTHER INFORMATION CONTACT section.

B. Copies of This Document and Other Information

    This document is available for download at http://www.epa.gov/npdes/stormwater/forestroads or under docket EPA-HQ-OW-2012-0195.

II. Background

A. Purpose

    This notice describes the administrative steps the Agency intends 
to take to address the unpermitted stormwater discharges identified 
under Northwest Environmental Defense Center v. Brown, 1063 F.3d 1176 
(9th Cir. 2011) and related discharges subject to the partial remand 
under Environmental Defense Center, Inc. v. EPA, 344 F.3d. 832, 863 
(9th Cir. 2003). Specifically, the Agency is announcing its plan to 
propose revisions to its Phase I stormwater regulations (40 CFR 122.26) 
to specify that stormwater discharges from logging roads are not 
included in the definition of ``storm water discharge associated with 
industrial activity.'' The effect of this revision would be to remove 
any obligation for an owner or operator of a logging road that has 
discharges of stormwater to waters of the United States to seek 
coverage of the discharge under the Stormwater Multisector General 
Permit and to comply with that General Permit or to have an individual 
permit under section 402 of the Clean Water Act for such a discharge. 
EPA is aware that a Congressional moratorium on NPDES permitting of 
some logging roads is set to expire on September 30, 2012, and intends 
to move expeditiously to complete this revision.
    At the same time, the Agency intends to evaluate stormwater 
discharges from forest roads to determine what additional measures, if 
any, are necessary to address such discharges. The EPA is publishing 
this notice to request comment on some potential approaches that the 
Agency should consider for addressing stormwater discharges from forest 
roads. As indicated earlier in this notice, the Agency will seek input 
again prior to taking additional action.

[[Page 30475]]

B. Overview of Forests and Forest Roads

    A vast and diverse network of forest roads provides access into and 
through the nation's forested lands. These roads traverse federal 
public land, state and local public land, county land, tribal land, 
private land, and they can span any combinations of these. The network 
includes active and inactive roads that vary in age and condition. Some 
roads on public lands are unauthorized and may not be included in 
existing inventories. Forest roads provide important access for a wide 
range of activities, including timber operations, recreation, fire 
protection, transportation, and often serve multiple purposes by 
multiple users at the same time.
    There are about 751 million acres of forested land in the United 
States. Private forests make up over half (56 percent) or approximately 
423 million acres (USDA Forest Service 2008), and account for over 90 
percent of all timber harvested in the United States in recent years 
(Adams et al., 2006). Of the private forest land, 62 percent is owned 
by families and individuals and is commonly referred to as ``family 
forests.'' Most of the family forest owners (around 61 percent) own 
fewer than 10 acres of forest land. Owners of the remaining private 
forest land include corporations, Real Estate Investment Trusts 
(REITs), conservation organizations, clubs, and Native American tribes 
(USDA Forest Service 2008). Over 300 Native American reservations are 
significantly forested, and Native American tribal lands include 17.9 
million acres of forest land, including 7.7 million acres of productive 
timberland (ITC 2007). Private forest land owners invest considerable 
resources in forest road construction and maintenance, as they are 
critical assets that enhance property values, maintain economic 
viability, and facilitate sustainable forestry management.
    Forty-four percent of forest land is publicly-owned, or 
approximately 328 million acres. The Federal government administers an 
estimated 76 percent of the public forest land. State forestry, park, 
and wildlife agencies account for most of the 21 percent of state-owned 
public forest land. The remaining 3 percent of public forest land is 
owned by local governments, such as counties and towns (USDA Forest 
Service 2008). Within the United States, the distribution of public 
versus private forests differs greatly among the various regions of the 
country. For example, forest-ownership in the Northwest is dominated by 
public (primarily the USFS and BLM) ownership, while private ownership 
is more prevalent in the Southeast and Northeast (Ibid.).
    While some forest road inventory information on federal lands is 
available, meaningful interpretation and comparison of that information 
requires an understanding of differences in inventory methods used 
(e.g., minimum road length included in road length counts), differences 
in the classes of forest roads (e.g., road surfacing, sediment 
production and delivery, and hydrologic connectivity), and differences 
in road densities. Nevertheless, the networks of forest roads on 
federal land are vast by any measure, with total lengths on the order 
of tens of thousands to hundreds of thousands of miles. The networks in 
other publicly-owned forests, tribal forests, and private forests have 
not been fully catalogued, and the density and condition of forest 
roads on these lands, as with the federal lands, varies widely.
    Forest road networks differ greatly in development through time and 
layout over terrain, and they carry this history into their present 
performance and environmental impacts (Gucinski et al, 2001). In many 
parts of the 193 million acres of the National Forest System (NFS), the 
major roads were built in the 1950s and 1960s, with secondary and 
tertiary feeder roads following as the road networks expanded into 
watersheds. In other areas, logging roads developed from previous road 
systems used for mining in the Rocky Mountain and southwestern states 
or agriculture in the southern Appalachians, Ozarks, and New England. 
Thus, changes in forest road standards through time (for example, 
width, construction methods, position in the landscape) have affected 
different parts of road networks. Consequently, each forest road 
network commonly contains a collection of older and newer roads, 
designed to different standards, for various purposes, and crossing 
terrain of differing sensitivities. This mosaic of road segments has 
implications for how the forest road network will interact with the 
forest watershed, streams, and other downstream aquatic resources 
(Gucinski et al., 2001), as well as for what is practicable, or even 
feasible, to address stormwater discharges from these roads.
    Regional differences are also evident in where the forest roads 
were located. For example, in southeastern Alaska, main roads were 
built on the broad, valley floors, where timber growing on the lower 
hillslopes was yarded downhill to them. In California, west of the 
Sierra Nevada, major roads were built along broad ridges, with 
secondary roads leading down into headwater areas. The main roads into 
western Oregon forests entered watersheds along narrow stream bottoms 
and then climbed the adjacent steep, unstable hill slopes to access 
timber extending from ridge to valley floor (Gucinski et al., 2001).
    Federal forest roads on both BLM and Forest Service lands generally 
support traffic from multiple uses such as recreational, 
administrative, fire protection, and mineral and silvicultural 
activities. Of those, only a portion may be used for accessing timber 
resources. The federal land management agencies may grant easements, 
reservations, and permits for the purpose of construction, operation, 
and maintenance or use of roads crossing their lands.
    The majority of BLM industrial logging operations occur on Oregon 
and California (O&C) lands \2\ which have approximately 14,455 miles of 
road. BLM O&C lands are interspersed in a checkerboard pattern with 
many landowners. The roads often cross multiple jurisdictions, 
including tribal, state, county and private land as well as BLM lands. 
As a result, a complex system of road right-of-way agreements exists on 
the BLM O&C lands, as discussed later in this notice.
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    \2\ Oregon and California (O&C) Lands Act of 1937. 43 U.S.C. 
1181a. The O&C Lands Act placed management jurisdiction of the lands 
under the United States Department of the Interior.
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    The paragraphs above discuss the range of property types into which 
forest roads provide access. The same road may pass through multiple 
owners and multiple properties. Moreover, the ownership of the road 
does not necessarily correspond to the ownership of the forest land. 
For example, a BLM owned road may pass through private property, and a 
privately owned road may pass through BLM property.
    In general, only a subset of forest roads are active or open in any 
given year or at any given time of year. When active or open, forest 
roads may be serving multiple purposes by a number of different users. 
For example, those roads that are open and used for logging may cross 
multiple ownerships with overlapping responsibilities for the road and 
be used by multiple logging operators during the same time frame. This 
creates a highly complex mosaic of overlapping responsibilities. The 
EPA does not have information on all forest roads but notes that usage 
for some roads, including forest roads on private property, may only 
occur during harvesting once every 20 years or so.
    Some forest roads are inactive and have been closed and ``storm-
proofed''

[[Page 30476]]

(i.e., they have appropriate BMPs for road drainage and erosion control 
and for reducing the vulnerability of the roads to natural disasters). 
Others may have been closed or abandoned. Among both active and 
inactive forest roads are older forest roads that were built or located 
without the benefit of newer standards.
    The wide range of regulatory and non-regulatory approaches 
authorized under section 402(p) of the CWA are well-suited to address 
stormwater discharges originating from the complex and diverse forest 
road universe because such approaches provide for flexibility and 
prioritization and allow EPA to focus on the subset of forest roads 
with stormwater discharges that cause or contribute to water quality 
impacts. Under 402(p) EPA could build on or defer to other federal, 
state, tribal, local, and voluntary programs.

C. Overview of Water Quality Impacts From Stormwater Discharges From 
Forest Roads

    The goal of the Clean Water Act is to restore and maintain the 
chemical, physical, and biological integrity of the nation's waters. 33 
U.S.C. 1251(a). High quality water supplies from forests are widely 
recognized as valuable resources. Forests cover about one-third of the 
continental United States. Most major rivers and streams originate in 
forested catchments (NCASI, 1994), and 80 percent of the nation's 
freshwater sources originates in these forests (USFS 2000). In 2000, 
the US Forest Service (USFS) calculated the marginal value of water 
from all National Forest System (NFS) lands to be at least $3.7 billion 
per year (Ibid.). Between 50 and 75 percent of the population of the 
United States relies on forest lands for good quality water (Neary et 
al. 2009), and approximately 60 million people rely on NFS lands as the 
primary source of their drinking water (Dissmeyer 2000).
    Stormwater discharges from logging roads, especially improperly 
constructed or maintained roads, may introduce significant amounts of 
sediment and other pollutants into surface waters and, consequently, 
cause a variety of water quality impacts. Results of nationwide 
waterbody assessments from the EPA's Assessment and Total Maximum Daily 
Loads (TMDL) Tracking and Implementation System (ATTAINS), which 
contains the most currently available data reported by states to the 
EPA under Sections 305(b) and 303(d) of the CWA, found silviculture 
(forestry) and related activities, including forest and logging roads, 
to be among the top twelve probable sources of impairment for rivers, 
streams, and coastal shorelines (USEPA 2012).
    The ATTAINS database indicates that silviculture sources 
contributed to impairment of 19,444 miles of rivers and streams (3.8 
percent of the total of 514,795 miles impaired) and 242,583 acres of 
lakes, reservoirs and ponds (1.9 percent of the total of 13,038,033 
acres of impaired). States cited ``Logging roads (construction and 
use)'' as the ``specific source'' of impairment in the case of 1,334 
miles of rivers and streams (.003 percent of total impaired) and 6,150 
acres of lakes, reservoirs and ponds (.0005 percent of total impaired).
    The contribution of silviculture to water quality impairments can 
vary by region, and the contribution of discharges from forest roads to 
water quality impairments in the ATTAINS database may not be 
representative due to reporting differences among states. Some states 
may have categorized the source of impairment as ``hydromodifcation'' 
or ``habitat alteration''; many states consistently report in the 
``unknown'' source category for impairments--the third leading probable 
source category of impairment nationwide. Additionally, much of the 
nation's waters still remain unassessed (72 percent of rivers and 
streams; 54 percent of lakes, reservoirs, and ponds; 62 percent of bays 
and estuaries; and 96 percent of coastal shorelines). The EPA 
considered the differential contribution from forest road stormwater 
discharges on water quality as the Agency developed the potential 
approaches for addressing these sources. For example, the EPA 
recognizes that not all forest roads cause water quality impacts and 
that the majority of the water quality impacts caused by discharges 
from forest roads may be attributed to a relatively small subset of 
forest roads and often a small portion of those roads (Nelson et al., 
2010; Fly et al., 2010; Luce and Black, 2001; Luce and Black, 1999). 
Thus, any approach to address stormwater discharges from forest roads 
would likely focus on the subset of forest roads that were not properly 
constructed or are not properly maintained.
    Stormwater discharges from improperly constructed or maintained 
forest roads can lead to excess sedimentation in nearby waters and 
subsequently lead to physical, biological and ecological impacts to 
water quality. These forest roads can degrade aquatic ecosystems by 
increasing levels of fine sediment input to streams and by altering 
natural streamflow patterns. Forest road runoff from improperly 
designed or maintained forest roads can detrimentally affect stream 
health and aquatic habitat by increasing sediment delivery and stream 
turbidity. This can adversely affect the survival of dozens of 
sensitive aquatic biota (salmon, trout, other native fishes, amphibians 
and macroinvertebrates) where these species are located. Increased fine 
sediment deposition in streams and altered streamflows and channel 
morphology can result in increased adult and juvenile salmonid 
mortality where present (e.g., in the Northwest and parts of the East), 
a decrease in aquatic amphibian and invertebrate abundance or 
diversity, and decreased habitat complexity.
    The physical impacts of forest roads on streams, rivers, downstream 
water bodies and watershed integrity have been well documented but vary 
depending on site-specific factors. Improperly designed or maintained 
forest roads can affect watershed integrity through three primary 
mechanisms: they can intercept, concentrate, and divert water 
(Williams, 1999). Forest roads can intercept water falling as rainfall 
directly on road surfaces and cutbanks as well as subsurface water 
moving underground down the hillslope. They can concentrate flow on the 
road surface and in adjacent ditches and channels. Forest roads, if not 
properly designed, can divert both surface and subsurface water from 
flow paths that otherwise would be taken in the absence of a road. The 
hydrologic and geomorphic consequences resulting from these three 
processes will vary based on the forest road and underlying material. 
In some cases, impacts may be negligible, while they may be significant 
in others. Potential effects of forest roads that were not properly 
constructed or are not properly maintained on water quality can include 
increased loading of sediment due to erosion and mass wasting, 
increased suspended solids and turbidity, increased sediment deposition 
and bed load, alteration of stream morphology and channel 
simplification, altered streamflow, pollution from other chemicals 
associated with forest roads, increased turbidity and sedimentation in 
water treatment and supply systems, siltation of streambed substrates, 
impairments of spawning and rearing habitat, and degradation of habitat 
for salmonids, other fish, invertebrates, and other aquatic organisms.
    Section VII, References, at the end of this notice provides a 
preliminary list of articles and publications that have examined 
various potential effects of stormwater discharges from forest roads, 
as well as management practices to address them. The EPA will further

[[Page 30477]]

review this literature as part of its detailed study of these sources. 
The Agency also welcomes suggestions for additional references that it 
should consider in its review.

D. Description and Effectiveness of BMPs and Current Practices

    Forest roads are vital components of the human use of forested 
systems (Gucinski et al., 2001). They provide access for recreation, 
resource extraction, fire suppression activities, and many other forest 
management activities. While improperly built and maintained forest 
roads can have detrimental effects on the water quality, the 
application of appropriate BMPs can minimize these effects.
    Owners and operators of many forest lands may already be employing 
a variety of effective approaches to manage, operate, and maintain 
forest roads to control stormwater discharges. These approaches are 
implemented by the forest road owners themselves or by operators or 
users of the roads. Depending on the jurisdiction, owners or operators 
use BMPs as a result of state program requirements, federal 
requirements, or because they may follow voluntary programs, including 
forest stewardship and sustainability initiatives. Under these required 
or voluntary programs, owners and operators of forest roads use BMPs to 
minimize or prevent discharges of pollutants into surface waters. They 
include design approaches, treatment techniques, operating procedures, 
and practices to control runoff, spillage, and leaks.
1. State Programs
    Most states have forest land management laws regulating multiple 
aspects of forest and timber resources and management and the products 
derived from these resources. Many states have a complex legal 
framework of forestry regulations that shape the state's forest road 
BMP programs. This framework and the resulting BMP programs vary 
considerably from one state to another. States also differ in how they 
distribute responsibility and authority for the forest road BMP 
programs among the state water quality, forestry, and fish and wildlife 
agencies. This notice describes three existing state programs to 
illustrate some of the variety among the states. Descriptions of the 
remaining state programs may be available through state Web pages.
    In Washington State, the forest practices act and rules (Forests 
and Fish Rules) apply to all private and state forest roads. Forest 
Practices Rules require that forest landowners construct and maintain 
roads to avoid potential or actual damage to public resources, such as 
water quality and fish habitat. The Washington program addresses both 
new forest roads as well as existing roads. The program requires larger 
forest landowners to complete an inventory of existing roads, identify 
where roads are impacting state resources (including fish and water 
quality), and allows for prioritization of repairing, relocating, or 
abandoning existing roads to correct problems. All large forest 
landowners must develop and submit for approval by the Washington 
Department of Natural Resources (DNR) a Road Maintenance and 
Abandonment Plan (RMAP) in which they inventory their forest roads and 
outline a schedule for any needed road work, including a timeline to 
bring old roads up to current standards or to decommission or 
``abandon'' substandard roads. Small forest landowners are required to 
submit a ``checklist RMAP,'' which is a form landowners fill out to 
indicate they have assessed their roads included in a harvest and 
identified any potential road maintenance problems. While the program 
is enforceable, the state focuses first on technical assistance and 
then, to correct problems, uses progressive enforcement mechanisms and 
generally reserves civil penalties for more serious infractions. If a 
problem is identified, WA DNR describes the outcome expected, and the 
landowner describes what BMPs will be used to correct it.
    Forest roads that no longer need to be used or cannot meet the 
performance standards are encouraged to be abandoned. Abandonment 
strategies may involve the removal of stream crossing structures and 
unstable road fill, installing water bars, re-vegetating exposed soils, 
and employing other similar techniques. WA DNR must approve the 
roadwork before the road can be considered abandoned.
    Florida relies primarily on voluntary compliance with state 
approved forest road BMPs. However, BMPs can be enforced where 
noncompliance leads to a significant risk to water quality. When a 
significant risk has been identified, professionally-trained BMP 
foresters advise the landowners on how to implement corrective 
measures. Afterward, a follow-up site evaluation is made to reassess 
compliance. Landowner non-compliance with recommendations made by the 
BMP Forester could result in a referral to the appropriate regulatory 
agency for enforcement action.
    California's Forest Practice Rules establish a comprehensive 
framework that includes state-developed and approved BMPs for 
silvicultural activities on private lands, including road-building 
practices, and other related silvicultural activities. California 
allows coverage under one approach that includes requirements that 
closely resemble those of an individual permit, known as ``Waste 
Discharge Requirements,'' as well as another approach allowing the use 
of a ``waiver'' whose requirements are closer to those of a general or 
regional permit. Having a ``waiver'' obviates the procedural need for 
coverage under the ``Waste Discharge Requirements'' program, but the 
substantive requirements of that program remain enforceable.
    The California program is based on input from state water quality 
and natural resource agencies and incorporates a formal, annual 
adaptive management process reflecting incremental analysis of BMPs, 
which regularly results in updated BMP requirements. The waste 
discharge requirements apply similarly and equally to both public and 
private lands. Enforceability of the Forest Practice Rules is overseen 
by multiple agencies: California Department of Forestry, the California 
Department of Fish and Game, and the state water Quality Control Board 
and Regional Water Quality Control Boards (California's water quality 
agency).
    Many states have been monitoring forestry BMP implementation for 
the past 20 years or more. During that time, state forestry agencies 
have approached implementation monitoring in different ways with 
varying degrees of detail, precision, and statistical strength. In 
general, BMP implementation has been reported to be highest on public 
land, followed in descending order by forest industry land, corporate 
non-industrial land, and private non-industrial land (Prud'homme and 
Greis, 2002).
    EPA recognizes that one-size-fits-all approaches may not be 
appropriate for addressing the multiplicity of issues and situations 
within and across states. EPA welcomes diversity in state programs and 
will be carefully studying the full range of such programs as it 
considers whether any additional measures to address stormwater 
discharges from forest roads are needed.
2. USDA Forest Service Programs
a. Forest Service National BMP Program
    The goal of the USDA Forest Service (USFS) National BMP Program is 
to improve agency performance and accountability in managing water 
quality in a manner consistent with the CWA and state water quality 
programs. Current USFS policy directs compliance with any required CWA 
permits and

[[Page 30478]]

state rules and regulations, and requires the use of approved BMPs to 
control pollution. The National BMP Program was developed over the past 
decade and is currently in the initial stages of implementation. It is 
intended to provide consistency among USFS administrative units to 
efficiently administer BMPs and demonstrate performance and 
accountability at multiple scales in an adaptive management context. 
The program is intended to meet or exceed state BMP objectives as well 
as to simplify and standardize water quality protection measures and 
monitoring on NFS land. (USDA Forest Service 2012)
    The National Core BMPs integrate existing state and USFS regional 
BMPs under one umbrella to facilitate an agency-wide BMP implementation 
and effectiveness monitoring program. The National Core BMPs provide a 
general, non-prescriptive framework of BMPs for the broad range of 
activities that occur on NFS lands. (Ibid.)
b. Forest Service Watershed Condition Framework
    The USFS's Watershed Condition Framework (WCF) is a comprehensive 
approach for classifying watershed condition, implementing integrated 
restoration in priority watersheds on national forests and grasslands, 
and tracking and monitoring outcome-based program accomplishments for 
performance accountability (USDA Forest Service 2011). The policy goal 
of the USFS WCF is ``to protect National Forest System watersheds by 
implementing practices designed to maintain or improve watershed 
condition, which is the foundation for sustaining ecosystems and the 
production of renewable natural resources, values, and benefits.'' The 
WCF provides a consistent way to evaluate watershed condition at both 
the national and forest levels. The WCF consists of reconnaissance-
level assessments by individual national forests, implementation of 
integrated improvement activities--including those related to roads--
within priority watersheds, validation and monitoring of watershed 
condition class changes, and aggregation of program performance data 
for national reporting.
c. Forest Service Legacy Roads Project
    The USFS has been engaged in an extensive program of road 
improvement efforts called the Legacy Roads Project since 2008. The 
goals of this effort are to reduce the hydrologic and geomorphic 
impacts of the existing USFS road network on critical watersheds and 
aquatic resources by decommissioning or upgrading forest roads. The 
Legacy Roads Monitoring Project is a regional effort to examine the 
effectiveness of the road decommissioning, storm damage risk reduction 
(aka ``storm-proofing'') and road storage projects.
3. United States Department of the Interior Bureau of Land Management 
Programs
    The Bureau of Land Management (BLM) manages 58 million acres of 
forest and woodlands in eleven western states and Alaska, including 2.4 
million acres within the Oregon and California (O&C) grant lands in 
western Oregon. BLM O&C regulations regarding third party road uses 
provide that ``The intent and expectation of both parties to agreements 
is that roads are left in `at least as good condition as existed prior 
to commencement of use''' (43 CFR 2812.6-2(b)(2)). The Federal Land 
Policy Management Act (FLPMA) requires public lands to be managed on 
the basis of multiple use and sustained yield without permanent 
impairment of the land and quality of the environment. Under Sec 502 of 
FLPMA, the Interior Secretary is authorized to provide for the 
maintenance of roads within and near the public lands and perform that 
work, in part, by cooperative financing with other public agencies and 
with private agencies and persons in proportion to their use. Forest 
roads may be constructed and maintained by logging operators, private 
landowners, the BLM, the USFS, or state or county governments. BLM 
roads, culverts, and bridges are designed, constructed, and maintained 
in accordance with policies and standards found in BLM 9100 Manual 
Series (Engineering) for road BMPs. In Oregon and Washington, the BLM 
has recently (2011) updated BMPs and, as a result, current road 
construction and maintenance standards are substantially improved over 
the standards in existence when the CWA was enacted in 1972. BLM timber 
sale contracts contain extensive specifications related to methods and 
timing of road construction and maintenance. In addition, the BLM often 
includes operational restrictions in their timber sale contracts to 
reflect appropriate protections for fish species listed under the 
Endangered Species Act (ESA).
    Under rights-of-way agreements, examples exist of private companies 
owning roads constructed on BLM lands, and BLM owning roads built on 
private lands. There are dozens of rights-of-way agreements in place on 
O&C lands. These agreements are subject to frequent amendment as 
landowners consolidate or sell lands or split off separate corporate 
entities for business purposes, creating a complex access program.
4. Tribal Programs
    Tribal governments in partnership with the US government dedicate 
substantial resources to improving Indian forest management (ITC 1993). 
Much of the responsibility for managing Indian forests across the 
country 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 Indian 
tribes, to obtain an independent assessment of the status of Indian 
forest resources and their management. Similar to the National Forest 
Management Act, the NIFRMA requires the development of forestry 
management plans under which the forests are managed in accordance with 
BMPs, as approved thorough an interdisciplinary team. 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 Indian tribes to carry out projects to 
protect Indian forest land. 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 95 percent of the forested portions of the reservation for 
long-term sustainability through the Menominee Tribal Enterprises which 
has received certifications for sustainable management from two groups, 
Scientific Certification Systems (The Forest Conservation Program) and 
the Rainforest Alliance (SmartWood), and is accredited by the Forest 
Stewardship Council. As another example, 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, in that new forest roads associated with forest 
harvest must be closed, or other roads must be closed in their place.
5. Voluntary Certification Programs
    On private forestlands, significant BMP implementation can be 
attributed to growing involvement of forest owners

[[Page 30479]]

in sustainable forestry certification programs. Several certification 
programs exist. Under one program, the Sustainable Forestry Initiative 
(SFI) of the American Forest and Paper Association, member companies 
must meet or exceed state BMPs on company-owned forest land (Prud'homme 
and Greis, 2002). Because SFI is linked to state BMPs, the forest road 
BMPs applied under SFI vary by state. Some forest products companies 
impose sanctions on timber producers who fail to implement BMPs when 
logging on other ownerships.
    Under another, the Forest Stewardship Council (FSC) certification 
program, certified forest owners and operators follow a set of 
principles and criteria that support responsible forest management (FSC 
2012). Principles and criteria include conservation of biological 
diversity, water resources, soils, and unique and fragile ecosystems 
and landscapes. Under FSC certification, additional requirements 
tailored by region guidelines must also be met in addition to state 
BMPs.
    Under a third program, the American Tree Farm System, a written 
certification is issued by an independent third-party that attests to 
the sustainable management of a working forest (ATFS 2012). In addition 
to requirements that they be in compliance with state BMPs, certified 
forest managers must also attest compliance with eight standards of 
sustainability, including the maintenance or enhancement of the 
environment and ecosystems.
    Certification programs can both help ensure implementation of state 
BMPs and in some instances require additional BMPs. Forestry operations 
that utilize experienced and informed land managers generally have 
higher rates of BMP implementation. Thus, many states recommend that 
landowners utilize forestry professionals (e.g., private consultants, 
certified Master Loggers) when planning any forest management 
operations. Many certification programs require involvement of forestry 
professionals.

E. Successes and Remaining Challenges

    As described above, successful federal, state, tribal, and local 
programs for controlling stormwater discharges from logging and forest 
roads currently exist in many parts of the country and many forest 
owners are implementing BMP programs to address these discharges. Some 
studies have observed trends of decreasing sediment input as forest 
roads are closed and storm-proofed or newly built or brought up to 
standards (e.g., Dub[eacute] et al. 2010).
    However, this does not mean that all of the existing programs have 
been successful at effectively addressing stormwater discharges from 
forest roads, and some discharges continue to cause or contribute to 
impairments for the Nation's waters.
    At the same time, not all forest roads are alike, and the severity 
of the remaining challenges varies. There is evidence that a majority 
of the water quality impacts caused by discharges from forest roads can 
be attributed to a relatively small subset of forest roads and often a 
small portion of those roads (Nelson et al., 2010; Fly et al., 2010; 
Luce and Black, 2001; Luce and Black, 1999). Thus, EPA believes that 
further study of forest roads and their impacts is needed in order to 
determine what additional measures may be needed to address remaining 
water quality impacts. EPA will consider a full range of potential 
approaches to address water quality impacts associated with discharges 
of stormwater from forest roads.

III. Approaches for Managing Stormwater Discharges From Forest Roads

    The Agency is considering several options for addressing 
significant water quality impacts caused by stormwater discharges from 
forest roads. EPA is considering designating a subset of stormwater 
discharges from forest roads for appropriate action under section 
402(p)(6) of the Act. Section 402(p)(6) allows the EPA flexibility in 
issuing regulations to address designated stormwater discharges and 
does not require the use of NPDES permits. 33 U.S.C. 1342(p)(6). 
Section 402(p) allows for a broad range of regulatory and non-
regulatory approaches and provides flexibility as to which stormwater 
discharges, if any, should be designated under Section 402(p)(6). For 
example, in lieu of regulation, EPA could support or defer to other 
federal, state, tribal, local, and voluntary programs. If EPA does 
determine that regulation under Section 402(p)(6) is appropriate for a 
subset of stormwater discharges from forest roads, such a regulation 
might address discharges only from roads used for logging or might 
address discharges based on contribution of the discharge to a water 
quality problem. Section 402(p)(6), in turn, provides considerable 
flexibility to EPA if it does designate any discharges for regulation 
in how it regulates those discharges.
    EPA intends to further study the impacts of stormwater discharges 
from forest roads, available management practices and approaches, and 
the effectiveness of existing Federal, State, Tribal, local and private 
programs in managing these discharges, as it considers appropriate next 
steps.

IV. Outreach and Stakeholder Involvement

    The EPA is in the process of reviewing available information on 
both the water quality impacts of stormwater discharges from forest 
roads as well as existing practices for their control. Consistent with 
past Agency actions, the EPA invites interested stakeholders and the 
public to share in the exchange of information and to engage as the 
Agency considers alternative approaches for addressing stormwater 
discharges from forest roads.
    The Agency participated in the recent technical symposium hosted by 
the Society of American Foresters during which EPA scientists and 
engineers had the opportunity to hear perspectives on forest roads and 
the Clean Water Act from state and industry representatives directly. 
In addition, the EPA has begun communicating with states, tribes, and 
other federal agencies to understand their current forest road 
stormwater management programs. The Agency worked closely in particular 
with USDA (the USFS) and the Department of the Interior (the BLM). The 
EPA also welcomes information from other interested parties and plans 
to work closely with other stakeholders moving forward.
    The EPA encourages stakeholders and the public to provide input 
into its consideration of appropriate measures to address stormwater 
discharges from forest roads and is already planning to host public 
meetings and webcasts to provide a forum for them to do so.

V. Next Steps

    The Agency will move expeditiously to propose a revision to its 
Phase I stormwater regulations (40 CFR 122.26) to specify that 
stormwater discharges from logging roads are not included in the 
definition of ``storm water discharge associated with industrial 
activity.'' EPA is aware that a Congressional moratorium on NPDES 
permitting of some logging roads is set to expire on September 30, 
2012, and intends to move expeditiously to complete this revision. EPA 
will also study the water quality impacts of forest roads and existing 
federal, state, tribal, and voluntary programs designed to address them 
to determine if additional Agency action is necessary. EPA also plans 
to hold listening sessions to obtain stakeholder input this summer on 
its consideration of how best to address stormwater discharges from 
forest roads.

[[Page 30480]]

VI. Request for Comment

    The EPA requests comment on potential approaches for addressing 
stormwater discharges from forest roads. The Agency also seeks input on 
examples of successful existing BMP-based state programs, tribal 
programs, and voluntary certification programs for managing stormwater 
discharges from forest roads; how these programs are implemented; how 
program accountability is assured; the costs of implementing those 
programs, including costs incurred by owners or operators of forest 
roads as well as the costs incurred by the organizations responsible 
for implementation and enforcement; the demonstrable successes of these 
programs; and the lessons learned in implementing such programs.
    The EPA will again seek input on any additional measures to address 
such discharges before taking additional action.

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    Dated: May 18, 2012.
Nancy K. Stoner,
Acting Assistant Administrator.
[FR Doc. 2012-12524 Filed 5-21-12; 11:15 am]
BILLING CODE 6560-50-P
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