Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Proposed Rules 30473 

1EPA 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. 

improvement anticipated from the use 

of possible NOX control technologies. 

Washington appropriately determined 

that the NOX BART determination will 

result in visibility improvement in Mt 

Rainier National Park by 2.0 dv on the 

20% most impaired days and improve 

visibility in 11 other Class I areas. 

The specific BART emission limits 

and compliance dates, along with the 

requirements for the optimization study, 

monitoring, recordkeeping and 

reporting requirements, are included in 

the Revised BART Compliance Order. 

Upon EPA approval of this portion of 

the Regional Haze SIP Submittal, the 

Order becomes federally enforceable for 

purposes of the Washington Regional 

Haze SIP. Finally, pursuant to 

Washington’s visibility protection 

program, WAC 173–400–151, the 

controls required by the State’s BART 

determination must be installed as 

expeditiously as possible but in no 

event later than five years from when 

the State’s Regional Haze SIP 

amendment is approved by EPA. More 

specifically, the Revised BART 

Compliance Order, which was included 

in the update to the Regional Haze SIP 

submission, provides that ‘‘[b]eginning 

on the 31st operating day after 

December 31, 2012 the NOX emissions 

limitation for the two coal fired utility 

steam generating units is 0.21 lb/ 

mmbtu, 30 operating day average, both 

units averaged together including all 

emissions during start-up and shutdown.’’ SIP Supplement L–30 (Revised 

BART Compliance Order section 1.1) 

Therefore, this satisfies the requirement 

in 40 CFR 51.308(e)(1)(iv) that ‘‘each 

source subject to BART install and 

operate BART as expeditiously as 

possible, but in no event later than 

5 years after approval of the 

implementation plan approval.’’ 

For the above reasons, EPA agrees 

with Ecology’s analysis and its the 

selection of BART for NOX at the 

TransAlta plant because the analyses 

were conducted in a manner that is 

consistent with EPA’s BART Guidelines. 

Additionally, the conclusions reflect a 

reasonable application of EPA’s 

guidance to this particular source. 

Therefore, EPA proposes to approve the 

NOX BART determination for TransAlta 

as meeting the requirements of 40 CFR 

51.308(e). 

IV. What action is EPA proposing? 

For the reasons explained above, and 

in recognition of the State legislation 

and the Revised BART Compliance 

Order which result in the 

decommissioning of the coal-fired units 

by 2020 and 2025, EPA is proposing to 

approve the BART determination for 

TransAlta, including the Revised BART 

Compliance Order. The BART 

determination requires SNCR plus Flex 

Fuel as BART for the TransAlta coalfired power plant with an emission limit 

of 0.21 lb/mmBtu with a 30 day rolling 

average beginning January 31, 2013, 

including fuel quality requirements and 

the allowance for a revised NOX

emission limit not to exceed 0.21 lb/ 

mmbtu. 

V. Statutory and Executive Order 

Reviews 

Under the Clean Air Act, the 

Administrator is required to approve a 

SIP submission that complies with the 

provisions of the Act and applicable 

Federal regulations. 42 U.S.C. 7410(k); 

40 CFR 52.02(a). Thus, in reviewing SIP 

submissions, EPA’s role is to approve 

state choices, provided that they meet 

the criteria of the Clean Air Act. 

Accordingly, this proposed action 

merely approves state law as meeting 

Federal requirements and does not 

impose additional requirements beyond 

those imposed by state law. For that 

reason, this proposed action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act 

(5 U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the Clean Air Act; 

and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the rule 

neither imposes substantial direct 

compliance costs on tribal governments, 

nor preempts tribal law. Therefore, the 

requirements of section 5(b) and 5(c) of 

the Executive Order do not apply to this 

rule. Consistent with EPA policy, EPA 

nonetheless provided a consultation 

opportunity to Tribes in Idaho, Oregon 

and Washington in letters dated January 

14, 2011. EPA received one request for 

consultation, and we have followed-up 

with that Tribe. 

List of Subjects in 40 CFR Part 52 

Air pollution control, Environmental 

protection, Intergovernmental relations, 

Nitrogen dioxide, Particulate matter, 

Reporting and recordkeeping 

requirements, Sulfur oxides, Visibility, 

and Volatile organic compounds. 

Dated: May 14, 2012. 

Michelle L. Pirzadeh, 

Acting Regional Administrator, Region 10. 

[FR Doc. 2012–12504 Filed 5–22–12; 8:45 am] 

BILLING CODE 6560–50–P 

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. 

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 

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30474 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Proposed Rules 

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 nonregulatory 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. 

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. 

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Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Proposed Rules 30475 

2Oregon 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. 

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. 

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’’ 

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30476 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Proposed Rules 

(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 nonregulatory approaches authorized under 

section 402(p) of the CWA are wellsuited 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 

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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 

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30478 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Proposed Rules 

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 

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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 companyowned 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 stormproofed or newly built or brought up to 

standards (e.g., Dube ́ 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 nonregulatory 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. 

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30480 Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 / Proposed Rules 

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 BMPbased 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 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 180 

[EPA–HQ–OPP–2012–0001; FRL–9347–8] 

Receipt of Several Pesticide Petitions 

Filed for Residues of Pesticide 

Chemicals in or on Various 

Commodities 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Notice of filing of petitions and 

request for comment. 

SUMMARY: This document announces the 

Agency’s receipt of several initial filings 

of pesticide petitions requesting the 

establishment or modification of 

regulations for residues of pesticide 

chemicals in or on various commodities. 

DATES: Comments must be received on 

or before June 22, 2012. 

ADDRESSES: Submit your comments, 

identified by docket identification (ID) 

number and the pesticide petition 

number (PP) of interest as shown in the 

body of this document, by one of the 

following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the online 

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