19–006 

112TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 112–684 

SILVICULTURE REGULATORY CONSISTENCY ACT 

SEPTEMBER 20, 2012.—Committed to the Committee of the Whole House on the 

State of the Union and ordered to be printed 

Mr. MICA, from the Committee on Transportation and 

Infrastructure, submitted the following 

R E P O R T 

[To accompany H.R. 2541] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Transportation and Infrastructure, to whom 

was referred the bill (H.R. 2541) to amend the Federal Water Pollution Control Act to exempt the conduct of silvicultural activities 

from national pollutant discharge elimination system permitting 

requirements, having considered the same, report favorably thereon with an amendment and recommend that the bill as amended 

do pass. 

CONTENTS 

Page 

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

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

Hearings ................................................................................................................... 6 

Legislative History and Consideration .................................................................. 6 

Committee Votes ...................................................................................................... 6 

Committee Oversight Findings ............................................................................... 7 

New Budget Authority and Tax Expenditures ...................................................... 7 

Congressional Budget Office Cost Estimate .......................................................... 7 

Performance Goals and Objectives ......................................................................... 8 

Advisory of Earmarks .............................................................................................. 8 

Federal Mandate Statement ................................................................................... 8 

Preemption Clarification ......................................................................................... 8 

Advisory Committee Statement .............................................................................. 8 

Applicability to the Legislative Branch ................................................................. 8 

Section-by-Section Analysis of Legislation ............................................................ 8 

Changes in Existing Law made by the Bill, as Reported ..................................... 9 

The amendment is as follows: 

Strike all after the enacting clause and insert the following: 

SECTION 1. SHORT TITLE. 

This Act may be cited as the ‘‘Silviculture Regulatory Consistency Act’’. 


tjames on DSK6SPTVN1PROD with REPORTS
2 

SEC. 2. SILVICULTURAL ACTIVITIES. 

Section 402(l) of the Federal Water Pollution Control Act (33 U.S.C. 1342(l)) is 

amended by adding at the end the following: 

‘‘(3) SILVICULTURAL ACTIVITIES.— 

‘‘(A) NPDES PERMIT REQUIREMENTS FOR SILVICULTURAL ACTIVITIES.—The 

Administrator shall neither require a permit under this section, nor directly 

or indirectly require any State to require a permit under this section, for 

a discharge 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, or road use, construction, and maintenance, from which there is runoff. 

‘‘(B) PERMITS FOR DREDGED OR FILL MATERIAL.—Nothing in this paragraph exempts the conduct of a silvicultural activity resulting in the discharge of dredged or fill material from any permitting requirement under 

section 404.’’. 

PURPOSE OF THE LEGISLATION

The purpose of H.R. 2541 is to exempt the conduct of 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 

NPDES permits and enforce 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. 


tjames on DSK6SPTVN1PROD with REPORTS
3 

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.) 

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 40 

CFR § 122.26(b)(14). (55 Fed. Reg. 47990, 48063 (November 16, 

1990).) A commenter on the proposed rulemaking for the Phase 1 

rule pointed out that logging is defined as a nonpoint source under 

the Silvicultural Rule. 

In response, the 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 40 CFR Part 122. (See 40 

CFR § 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 40 CFR 122.27, namely, the Silvicultural Rule. 

(See 55 Fed. Reg. at 48011.) 


tjames on DSK6SPTVN1PROD with REPORTS
4 

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 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. For the past 35 years, under the Silvicultural Rule, the 

management of forest roads 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. This long-standing, flexible policy has 

worked because it recognized that the responsible management of 

a working forest varies widely depending on location and applies 

a variety of best management practices to address stormwater runoff. 

Litigation on the Silvicultural Rule and responses 

During the 1990s, activist groups unsuccessfully argued that forest roads and other forestry activities in National forests are point 

sources requiring NPDES permits. For example, in 1998, the U.S. 

Court of Appeals for the 8th Circuit found that, under the Silvicultural Rule, NPDES permits are not required for forest roads, and 

held that ‘‘EPA regulations do not include the logging and road 

building activities cited by the Wildlife Association in the narrow 

list of silvicultural activities that are point sources requiring 

NPDES permits.’’ (Newton County Wildlife Association v. Rogers, 141 F.3d 803, 810 (8th Cir. 1998) (citing the Silvicultural Rule).) 

In September 2006, the Northwest Environmental Defense Center (NEDC) sued the Oregon State Forester, the Oregon Board of 

Forestry, and four timber purchasers for failure to obtain NPDES 

permits on logging roads in the Tillamook State Forest. They alleged that roads used for timber harvest in the Tillamook State 

Forest are ‘‘point sources’’ requiring NPDES permits under the 

CWA. Industry groups intervened and the EPA filed amicus briefs 

at the district court and at the circuit court, defending its regulations. The U.S. District Court for the District of Oregon dismissed 

the lawsuit on March 1, 2007. (NEDC v. Brown, 476 F.Supp.2d 

1188 (D.Or. 2007).) The Court held that forest roads, with their 

ditches and culverts for dispersal of stormwater, are within the 

meaning of the EPA Silvicultural Rule defining ‘‘road construction 

and maintenance from which there is natural runoff’’ as nonpoint 

sources. NEDC appealed to the U.S. Court of Appeals for the 9th 

Circuit. 

Breaking with 35 years of practice, the 9th Circuit, on August 17, 

2010, reversed the District Court and ruled that the EPA lacks authority to designate forest roads as nonpoint sources, and that forest roads using stormwater management measures, such as 

ditches, are point sources requiring NPDES permits. (NEDC v. 

Brown, 617 F.3d 1176 (9th Cir. 2010).) The 9th Circuit further 

ruled that logging is an ‘‘industrial activity’’ under the EPA’s 

stormwater regulations and therefore ‘‘logging roads’’ require 

NPDES permits. The EPA defended its regulations in its amicus 

brief on the appeal to the 9th Circuit, but the 9th Circuit ignored 

the EPA’s explanation. 


tjames on DSK6SPTVN1PROD with REPORTS
5 

The 9th Circuit denied the defendants’ request for rehearing and 

reissued its decision with an additional holding regarding jurisdiction on May 17, 2011. (NEDC v. Brown, 640 F.3d 1063 (9th Cir. 

2011).) The 9th Circuit said the Silvicultural Rule does not exempt 

logging roads with stormwater management measures that convey 

the runoff and discharge it into streams and rivers that are subject 

to CWA jurisdiction. Following issuance of the revised decision, the 

9th Circuit denied a motion to stay the decision while the parties 

sought review by the U.S. Supreme Court. In September, 2011, the 

defendants filed petitions for certiorari with the Supreme Court. 

The 9th Circuit ruling upends 35 years of EPA policy treating 

forestry activities and forest roads as ‘‘nonpoint sources,’’ best regulated under State developed best management practices, and exposes Federal, State, tribal, and private forest owners and operators to significant economic harm, private citizen lawsuits, and uncertainty. 

In response to the 9th Circuit’s decision, on July 14, 2011, Representative Herrera Beutler introduced H.R. 2541, the Silviculture 

Regulatory Consistency Act, to affirm and preserve the EPA’s longstanding policy that forest roads should be regulated as nonpoint 

sources using State developed best management practices. Then in 

December, 2011, Congress and the Administration enacted legislation, modeled after H.R. 2541, as part of the Fiscal Year 2012 Consolidated Appropriations Act, delaying the 9th Circuit’s permit requirement from taking effect until October 1, 2012. 

On May 23, 2012, the EPA published in the Federal Register a 

Notice of Intent announcing two related actions. First, the Agency 

announced its intent to clarify in its stormwater regulations that 

a mandatory permit is not required for forest roads used for timber 

harvest. Second, the EPA announced a separate study to evaluate 

stormwater discharges from forest roads to determine whether any 

additional agency action is necessary. 

On May 24, 2012, the Solicitor General filed a brief with the Supreme Court, arguing that the 9th Circuit decision was wrong, because the court failed to defer to the EPA’s interpretation of its 

own regulations under the CWA. The Solicitor also noted that Congress and the EPA are best able to resolve the issue and the Supreme Court should not review the 9th Circuit’s decision. The Solicitor General further observed that any rules that the EPA would 

adopt would be subject to judicial review and delay, which raises 

the point that this leaves legislative action by Congress as the only 

way to provide finality and certainty on this issue without continued litigation. 

On June 25, 2012, the Supreme Court announced that it will review the 9th Circuit’s decision in NEDC v. Brown (now called Decker v. Northwest Environmental Defense Center, No. 11–338, and is 

consolidated with another petition filed in response to the case, 

Georgia-Pacific West, Inc. v. Northwest Environmental Defense Center, No. 11–347). The Court will likely render a final decision in the 

spring of 2013. The outcome is uncertain. The State of Oregon and 

several forest products companies (defendants in the case), twentysix State Attorneys General, counties and industry associations 

from across the Nation have urged the Supreme Court to review 

the decision. 


tjames on DSK6SPTVN1PROD with REPORTS
6 

Meanwhile, on September 4, 2012, the EPA proposed revisions to 

its Phase I stormwater regulations, in an attempt to clarify that 

stormwater discharges from logging roads do not constitute 

stormwater discharges associated with industrial activity and that 

an NPDES permit is not required for these stormwater discharges. 

(See 77 Fed. Reg. 53834 (September 4, 2012).) This rule, when finalized, will be subject to judicial review and could result in further delay in achieving finality and certainty on this issue. 

Although the Supreme Court has agreed to review the 9th Circuit decision, and the EPA has proposed to address the issue 

through a rulemaking, legal and economic uncertainty will continue to surround this issue. Many believe a permanent legislative 

fix is needed to end the uncertainty, and that Congress is best positioned to address the 9th Circuit’s decision with legal certainty 

through permanent legislation. Congressional action to enact such 

legislation will preserve the EPA’s long-standing policy that forest 

roads are nonpoint sources best regulated under State developed 

best management practices, and will resolve the legal and economic 

uncertainty surrounding the 9th Circuit’s decision once and for all. 

Legislation will also help ensure that forests continue to provide 

important public benefits, like good paying jobs, renewable consumer products, water quality, outdoor recreational opportunities, 

and habitat for fish and wildlife. 

HEARINGS

No hearings were held on H.R. 2541. 

LEGISLATIVE HISTORY AND CONSIDERATION

On July 14, 2011, Representative Jaime Herrera Beutler of 

Washington introduced H.R. 2541, the Silviculture Regulatory Consistency Act, a bill to exempt the conduct of silvicultural activities 

from National Pollutant Discharge Elimination System permitting 

requirements under the Federal Water Pollution Control Act. On 

August 1, 2012, the Committee on Transportation and Infrastructure met in open session to consider H.R. 2541, and ordered the bill 

reported favorably to the House by voice vote with a quorum 

present. 

An amendment was offered in Committee by Representative Larsen of Washington, which was adopted by voice vote. The amendment clarified that the activities exempt from permitting are limited to the silvicultural activities specified in the bill. 

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. 2541, or ordering 

the bill reported. A motion to order H.R. 2541 reported favorably 

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


tjames on DSK6SPTVN1PROD with REPORTS
7 

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. 2541 from the Director of the Congressional Budget Office: 

U.S. CONGRESS, 

CONGRESSIONAL BUDGET OFFICE, 

Washington, DC, August 9, 2012. 

Hon. JOHN L. MICA, 

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. 2541, the Silviculture 

Regulatory Consistency Act. 

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

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

Sincerely, 

ROBERT A. SUNSHINE

(For Douglas W. Elmendorf, Director). 

Enclosure. 

H.R. 2541—Silviculture Regulatory Consistency Act 

H.R. 2541 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. 

CBO estimates that enacting this legislation would result in no 

significant impact on the federal budget because EPA is expected 

to make this change through regulation within the next 12 months. 

Pay-as-you-go procedures do not apply to H.R. 2541 because enacting the bill would not affect direct spending or revenues. 

H.R. 2541 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. 


tjames on DSK6SPTVN1PROD with REPORTS
8 

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 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. 

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. 2541 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. 2541 states that the Act may be cited as the 

‘‘Silviculture Regulatory Consistency Act.’’ 

Section 2. Silvicultural activities 

H.R. 2541 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 adVerDate Mar 15 2010 06:46 Sep 22, 2012 Jkt 019006 PO 00000 Frm 00008 Fmt 6659 Sfmt 6602 E:\HR\OC\HR684.XXX HR684

tjames on DSK6SPTVN1PROD with REPORTS
9 

ditional limitation on the requirement to obtain an NPDES permit, 

by adding a new Paragraph (3) at the end of Section 402(l). 

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

neither require an NPDES permit, nor directly or indirectly require 

any State to require an NPDES permit, for a discharge 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, or road use, construction, and 

maintenance, from which there is runoff. The Committee adopted 

an amendment in a Committee meeting held on August 1, 2012, 

which clarified that the silvicultural activities exempt from permitting are limited to those activities specified in Paragraph (3)(A). 

Amended 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 

and 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 neither require a permit under this section, nor directly or indirectly require any 

State to require a permit under this section, for a discharge 

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, or road use, construction, and maintenance, 

from which there is runoff. 


tjames on DSK6SPTVN1PROD with REPORTS
10 

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

in this paragraph exempts the conduct of a silvicultural activity resulting in the discharge of dredged or fill material 

from any permitting requirement under section 404. 

* * * * * * * 

Æ 


tjames on DSK6SPTVN1PROD with REPORTS