***E.O. 12866 Review - Draft - Do not quote, cite or distribute***

1 of 45 EO12866_Forest Roads FR Notice_Dr aft Notice of Intent to Addr ess Discharges from Forest Roads_20120419 6560-50 ENVIRONMENTAL PROTECTION AGENCY [FRL-XXXX-X; EPA-HQ-OW-2012-0195] Notice of Intent to Address Stormwater Discharges from Fo rest Roads, Including Logging Roads, using a Non-Permitting A pproach under the Clean Water Act

AGENCY : Environmental Protect ion Agency (EPA).

ACTION : Notice of Intent to Address Stormwater Discharges from Forest Roads, Including Logging Roads, using a N on-Permitting Approach under the Clean Water Act

SUMMARY: The EPA intends 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.” At the same time, the Agency intends to propose designating stormwater discharges from forestroads, which include logging roads, for regulation under a flexible, non -permitting approach authorized in section 402(p)(6) of the Clean Water Act. 33 U.S.C. 1342( p)(6). The flexible approaches authorized under section 402(p) are well-suited to address the complexity of forest road ownership, management, and use. Where appropriate best ma nagement practices (BMP s) are used, receiving waters can be protected and impacts can be minimized. If not properly managed, however, stormwater discharges from vast networks of forest roads can cause preventable impairments to water quality. Many flexible approaches are ava ilable to address discharges from forest roads***E.O. 12866 Review - Draft - Do not quote, cite or distribute***

2 of 45 and to minimize pollutant loading to surface waters, as demonstrated by a review of successful BMP programs that already exist in parts of the country. In th is notice, the EPA is also requesting comment on approaches that the Agen cy is considering for regulating stormwater discharges from forest roads. Under these approaches, the EPA would develop a process for evaluating which discharges from forest roads s hould be covered by regulation, and the Agency would take comments on this pr ocess. The EPA is also seeking input on examples of successful BMP-based state, tribal , and voluntary certification-orientedprograms. When the EPA proposes new regulations, the Agency will seek comme nt again prior to taking final action. DATES: Comments must be received on or befo re [ENTER DATE 90 DAYS FOLLOWING PUBLICATION IN THE FEDERAL REGISTER ]. ADDRESSES: You may submit comments, identifi ed 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 Protec tion Agency, Mailcode: 4101T, 1200 Pennsylvania Avenue, NW, Washington DC 20460, Attentio n Docket ID No. EPA-HQ-OW-2012-0195.

• Hand Delivery / Courier: EPA Docket Ce nter, (EPA/DC) EPA West, Room B102, 1301 Constitution Avenue, NW, Washington, DC, 20 460. 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 incl uded in the public docket without change and***E.O. 12866 Review - Draft - Do not quote, cite or distribute***

3 of 45 may be made available online at http://www.regulations.gov , including any personal information provided, unless the comment in cludes information claimed to be Confidential Business Information (CBI) or other inform ation 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 e-mail. The http://www.regulations.gov Web site is an “anonymous access” system, which means the EP A will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to the EPA without going through http://www.regulations.gov , your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Intern et. 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 subm it. If the EPA cannot read yo ur comment due to technical difficulties and cannot c ontact you for clarification, the EPA may not be able to consider your comment. Electronic files should a void the use of special character s, 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 Cent er homepage at http://www.epa.gov/epahome/dockets.htm

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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 av ailable, i.e., CBI or other information whose disclosure is re stricted by statue. Certain othe r material, such as copyrighted material, will be publicly available only in hardcopy. Publicly availabl e 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,***E.O. 12866 Review - Draft - Do not quote, cite or distribute***

4 of 45 Washington, DC. The Public Read ing Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal hol idays. 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 INFORM ATION CONTACT: For further information on this notice, you may contact Jeremy Bauer, EPA Headquarters, Office of Water, Of fice of Wastewater Management via email at bauer.jeremy@epa.gov or telephone at 202-564-2775.

SUPPLMENTARY 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, consu lt 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://cfpub.epa.gov/npdes/st ormwater/forestroads.cfm 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 (9 th Cir. 2011) and related discharges subject to the partial remand under***E.O. 12866 Review - Draft - Do not quote, cite or distribute***

5 of 45 Environmental Defense Center, Inc. v. EPA , 344 F.3d. 832, 863 (9th Cir. 2003). Specifically, the Agency is announcing its plan to propose revision s to its Phase I stormwat er regulations (40 CFR 122.26) to specify that stormwater discharges from logging roads ar e not included in the definition of “storm water discharge associated with industrial activity.” At the same time, the Agency intends to propose designating stormwater discharges from forest roads for regulation under a flexible, non-permitting approach authori zed in section 402(p)(6 ) of the Clean Water Act. 33 U.S.C. 1342(p)(6). The EPA is publishing this notice to reque st comment on potential non-permitting approaches that the Agency is co nsidering for regulating stormwater discharges from forest roads. As indicated earlier in this notice, when th e EPA proposes any new regulation, the Agency will seek comment again prior to taking final action. B. Overview of forests and forest roads A vast and diverse network of forest road s 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 can span any combinations of thes e. The network includes active and inactive roads that vary in age and cond ition. 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 mu ltiple users at the same time. There are about 751 mi llion acres of forested land in the Un ited 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 ow ners (around 61 percent)***E.O. 12866 Review - Draft - Do not quote, cite or distribute***

6 of 45 own fewer than 10 acres of fore st land. Owners of the remaini ng private forest land include corporations, Real Estate Inve stment Trusts (REITs), conservation organizations, clubs, and Native American tribes (USDA Forest Service 2008). Over 300 Na tive American reservations are significantly forested, and Native American tr ibal 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 c onstruction 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 approximatel y 328 million acres. The Federal government adminis ters an estimated 76 percent of th e 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 Servi ce 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 domina ted 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 informati on on federal lands is av ailable, 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 su rfacing, 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 th e order of tens of thousands to hundreds of thousands of miles. Th e networks in other publicly-owned forests,***E.O. 12866 Review - Draft - Do not quote, cite or distribute***

7 of 45 tribal forests, and private forests have not b een 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 deve lopment through time and layout over terrain, and they carry this history into their present perfor mance and environmental impacts (Gucinski et al, 2001). In many parts of the 193 million acres of the National Fo rest System (NFS), the major roads were built in the 1950s and 1960s, with sec ondary and tertiary feeder roads following as the road networks expanded into watersheds . In other areas, logging roads developed from previous road systems used fo r mining in the Rocky Mountain and southwestern states or agriculture in the southern Appalachians, Ozar ks, and New England. Thus, changes in forest road standards through time (f or example, width, construc tion methods, position in the landscape) have affected differ ent parts of road networks. C onsequently, each forest road network commonly contains a collection of ol der 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 fore st road network will inte ract with the forest watershed, streams, and other downstream aquatic resources (Gucinski et al., 2001). Regional differences are also evid ent 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. InCalifornia, west of th e Sierra Nevada, major roads were built along broad ridges, with sec ondary roads leading down into headwater areas. The main roads into western Oregon forests en tered 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)***E.O. 12866 Review - Draft - Do not quote, cite or distribute***

8 of 45 Federal forest roads on both BLM and Forest Service lands generally support traffic from multiple uses such as recreati onal, administrative, fire protection, and mineral a nd silvicultural activities. Of those, only a portion may be usedfor accessing timber resources. The federal land management agencies may grant easements, re servations, and permits for the purpose of construction, operation, and maintenance or use of roads crossing their lands. The majority of BLM industrial logging ope rations occur on Oregon and California (O&C) lands 1 which have approximately 14,455 miles of ro ad. BLM O&C lands are interspersed in a checkerboard pattern with many landowners. Th e roads often cross mu ltiple jurisdictions, including tribal, state, county and private land as well as BLM lands. As a result, a complex system of road right-of-way agr eements exists on the BLM O&C la nds, 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 ow ners and multiple prop erties. Moreover, the ownership of the road does not necessarily corre spond 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 fo rest 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 mul tiple purposes by a number of different users. For example, those roads that are open and used for l ogging may cross multiple ownerships with overlapping res ponsibilities 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 informati on on all forest roads bu t notes that usage for

1 Oregon and California (O&C) Lands Act of 1 937. 43 U.S.C. §1181a. Th e O&C Lands Act placed management jurisdiction of the lands under the United States Department of the Interior.***E.O. 12866 Review - Draft - Do not quote, cite or distribute***

9 of 45 some roads, including forest ro ads on private property, may on ly occur during harvesting once every 20 years or so. Some forest roads are inactive and have been closed and “storm-proof ed” (i.e., they have appropriate BMPs for road draina ge and erosion control and for re ducing the vulnerability of the roads to natural disasters). Others may have been closed or abandoned. Among both active and inactive forest roads are older fore st roads that were bui lt or located without the benefit of newer standards. The approaches authorized under section 402(p )(6) 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 prio ritization and may focus on the subset of forest roads with stormwater discharges that cause or contribute to water quality impacts and allow for prioritization among th ose discharges. C. Overview of Water Quality Impacts from Stormwater Discharge s from Forest Roads The goal of the Clean Water Act is to restor e 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 re sources. Forests cover about one-third of the continental United States. Most major rivers and streams orig inate in forested catchments (NCASI, 1994), and 80 percent of th e nation’s freshwater sources originates in these forests (USFS 2000). In 2000, the US Forest Service (US FS) calculated the marginal value of water from all National Forest System (NFS) lands to be at l east $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 appr oximately 60 million people rely on NFS lands as the primary source of their drinking water (Dissmeyer 2000).***E.O. 12866 Review - Draft - Do not quote, cite or distribute***

10 of 45 Stormwater runoff from improperly constructed or main tained forest roads may introduce significant amounts of sediment a nd other pollutants into surface waters and, consequently, cause a variety of water quality impacts. Results of nationwide waterbody asse ssments from the EPA’s Assessment and Total Maximum Daily Loads (T MDL) Tracking and Implementation System (ATTAINS), which contains the most current ava ilable data reported by states to the EPA under Sections 305(b) and 303(d) of the CWA, found silv iculture (forestry) and related activities, including forest and logging roads, to be among the top twelve probable sources of impairment for rivers, streams, and coasta l shorelines (USEPA 2012). The c ontribution of silviculture to water quality impairments can vary by region, and the full extent of the contribution of discharges from forest roads to water quality impairments may be underrepresented in the ATTAINS database 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 "unknow n" source category for impairments – the third leading probable source cate gory of impairment nationwide . Additionally, much of the nation's waters still remain unassessed (72 percen t of rivers and streams; 54 percent of lakes, reservoirs, and ponds; 62 percent of bays and estuar ies; and 96 percent of coastal shorelines). The EPA considered the di fferential contribution from forest road discharges on water quality as the Agency developed the potential approaches for addressing them. For example, the EPA recognizes that not all forest roads cause wate r quality impacts and that within a basin the majority of the water quality impacts caused by di scharges from forest road s may be attributed to a relatively small subset of forest roads (Luce 2001; Luce an d Black, 1999). The discussion on water quality impacts in this notice focuses on the subset of forest roads that were not properly constructed or are not properly maintained.***E.O. 12866 Review - Draft - Do not quote, cite or distribute***

11 of 45 Improperly constructed or maintained forest road s can lead to excess sedimentation in nearby waters and subsequently lead to physical, biological and ecologi cal impacts to water quality. These forest roads can degrade aquatic ecosystems by increasing levels of fi ne sediment input to streams and by altering natural streamflow patterns. Forest ro ad runoff from improperly designed or maintained forest roads candetrimentally affect stream health and aquatic habitat by increasing sediment delivery and stream turbidity . This can adversely a ffect the survival of dozens of sensitive aquatic biota (salmon, tr out, other native fishes, amphibians and macroinvertebrates) where these species are lo cated. Increased fine sediment deposition in streams and altered streamflow s and channel morphology can re sult in increased adult and juvenile salmonid mortality wher e present (e.g., in the Northwes t and parts of the East), a decrease in aquatic amphibian and invertebrate abundance or diversity, and decreased habitat complexity. The physical impacts of fore st roads on streams, rivers , downstream water bodies and watershed integrity have been well documented but vary depe nding on site-specific factors. Improperly designed or maintained forest road s can affect watershed integrity through three primary mechanisms: they can intercept, concentr ate, and divert water (Williams, 1999). Forest roads can intercept water falling as rainfall di rectly on road surfaces and cutbanks as well as subsurface water moving underground down the hill slope. They can concentrate flow on the road surface and in adjacent ditches and channels. Fore st roads, if not prope rly designed, can divert both surface and subsurface water from flow paths th at otherwise would be taken in the absence of a road. The hydrologic and geomorphic cons equences resulting from these three processes will vary based on the forest road and underlyi ng material. In some cases, impacts may be negligible, while they may be significant in others. As di scussed in the following sections,***E.O. 12866 Review - Draft - Do not quote, cite or distribute***

12 of 45 potential effects of forest roads that were not pr operly constructed or ar e not properly maintained on water quality can include increased loading of sediment due to erosion and mass wasting, increased suspended solids and turbidity, increas ed sediment deposition and bed load, alteration of stream morphology and channel simplification, altered streamflow, pollu tion from other chemicals associated with forest roads, increased turbidity and sedimentation in water treatment and supply systems, siltation of streambed s ubstrates, impairments of spawning and rearing habitat, and degradation of hab itat for salmonids, other fish, invertebrate s, and other aquatic organisms. 1. Increased Loading of Fine and/or Coarse-Gra ined Sediment Due to Erosion and Mass Wasting Forest roads that were not properly constructed or are not properly maintained can be a major source of sediment to streams (Eaglin and Hubert, 1993; Furniss et al., 1991), and their construction, in particular, may contribute more sediment to streams than any other forestryrelated land management activity (Gibbons and Sa lo, 1973; Meehan, 1991). High rates of stream sedimentation can result from this increased erosion. Sedime nt enters water through various processes that include soil surface erosion, channel erosion, and mass movements (e.g., landslides, debris flows), and these inputs can be either chronic or episodic (FPAC, 2001). A survey conducted in one watershed in the south east revealed that 80 percent of the sources of sediment delivery to streams and rivers were from the ro ad prism; i.e., road surface, ditches, fill, banks (van Lear et al., 1995; Grace and Clint on, 2006). Surface erosion fr om forest roads can affect the fine sedime nt budget and may impose a chronic condition of sediment inputs to streams directly affecting the stream substrate an d the health of aquatic life (Luce et al., 2001). Forest roads can also increase the frequency of landslides, debris flows, and other mass movements (Burroughs et al., 1976; Clayton, 1983; Dunne and Leopold, 1978; Furniss et al.,***E.O. 12866 Review - Draft - Do not quote, cite or distribute***

13 of 45 1991; Hammond et al., 1988; Megahan et al., 1992). Road-related la ndslides and stream crossing failures may result in signif icant sediment impacts associated with fill from failed road crossings and scoured headwater channels. These types of sediment inputs tend to be episodic and are often the result of large rainfall events. Landslid es are typically the dominant erosion mechanism in areas with steep slopes, the frequency of which can be greatly accelerated by road management practices. 2. Increased Suspended Solids and Turbidity Forest road construction and operation if not properly managed can cause increased concentrations of suspended sediment. For exam ple, wet-weather hauli ng can be a source of fine-grained sediment and associated stream turbidity (Mills et al., 2003; Reid and Dunne, 1984). Research by Binkley and Brown (1993) suggests that suspended sediment concentrations in disturbed experimental fo rested watersheds that have properly implemented BMPs may resemble those of undisturbed forested wa tersheds. Local variability in so il erosivity can also affect the level of sediment loading. In regions where BMPs were not employed, substantial and variable increases in sediment concentrations occurre d. Binkley and Brown (1993) showed suspended sediment concentrations an orde r of magnitude (or more) greater in disturbed forest than in undisturbed forest. However, the researchers noted that the increases can be highly variable and observed some situations in which no increases occurred. 3. Increased Sediment Deposition and Bed Load Sedimentation is the end result of several pro cesses, including erosion; sediment delivery, transport and deposition; and instream morphol ogical processes. Erosion and mass wasting associated with forest roads candeliver both fine and coarse-gra ined sediment to water bodies. While fine-grained sediment is usually trans ported suspended in the water column, coarse***E.O. 12866 Review - Draft - Do not quote, cite or distribute***

14 of 45 materials are mostly transported as bed load. Bed load transport is “flow limited”, meaning that coarse-grained sediment is usually only transported and redeposited at high flow rates (Beschta, 1981). Deposition during and following large flow events can significantly change channel characteristics in low-gradient stream reaches. Although many of these changes (e.g., reduced pool depth and frequency) are associated with ne gative impacts on biota, stream habitat can be potentially enhanced if mass erosion delivers mate rial to streams where coarse sediment is limited. 4. Alteration of Stream Morphol ogy and Channel Simplification The increased sediment flux into streams that can be associatedwith improperly designed or maintained forest roads causes aggradation (the accumulation of sediment in streams and rivers that occurs when the supply of sediment exceed s the ability of the stream to transport the sediment), filling of pools, and increased channe l widths and width-to-depth ratios (Jackson and Beschta, 1984; Lisle, 1982; Madej, 1982). Increases in width/depth ratios in sensitive streams can result in higher summer water temperatures even when shade is not lost (Beschta et al., 1987; McCullough, 1999). Such temperature increases can elevate stream temperatures beyond the range for rearing, increase susceptib ility of fishes to disease, re duce metabolic efficiency, shift species assemblages, and inhib it upstream migrations (Beschta et al., 1987; Hicks et al., 1991). Increased road density is often associated with a decline in the frequenc y of pools and depth of pools, fundamental components of high-quality fish habitat with increasing road density (Lee et al., 1997). Significant aggradation at channel transitions such as tributary confluences or road crossings can force streamflows subsurface. Forest roads that were not properly constructed or are not properly maintained can have other impacts on stream morphology. Unnatural channe l widths, slopes, and stream bed forms can***E.O. 12866 Review - Draft - Do not quote, cite or distribute***

15 of 45 occur upstream and downstream of road crossings , and these alterations in channel morphology may persist for long periods of time (Williams, 1 999; Heede, 1980). Concentration and diversion of flow by roads into headwater areas can cause incision of previously unchanneled portions of the landscape (Montgomery, 1994). Forest roads, partic ularly in the past, ha ve been built within floodplains and partially w ithin stream channels. Riprap placed to prevent erosion of the road fill can result in dramatic changes in channel form (Luce et al., 2001). 5. Altered Streamflow Forest roads that were not properly constructed or are not properly ma intained may influence the flow of water through the watershed (Williams , 1999). Runoff rates are generally lower with moderated peak flows. Runoff ra tes are higher from compacted fo rest road surfaces than from less disturbed parts of watersheds (Elliot and Ha ll, 1997). The forest road network in a watershed may increase the frequency and magnitude of peak runoff discharges, particularly in small watersheds with high road density. Forest roads may also increas e total runoff and decrease the time to peak runoff from major storms or snowmelt (Elliot, 20 00). Forest roads can interrupt hillslope drainage patterns by intercepting surfa ce and subsurface flow and concentrating and diverting it into ditches, gullies and channels. This can effectively increase the density of streams in the landscape and reduce groundwater recharge , which can alter the timing and magnitude of peak flows and change base flow stream disc harge (Furniss et al., 1991; Harr et al., 1975; King and Tennyson, 1984; Wemple et al., 1996) and s ub-surface flows (Furniss et al. 1991; Megahan, 1972). However, the effects on flow through the watershed may be reduced where forest roads are constructed and maintained to drain ditches and gullies and allow wa ter to infiltrate through the soil, thus reducing the effect s of concentrating the water.***E.O. 12866 Review - Draft - Do not quote, cite or distribute***

16 of 45 In some instances, forest road-induced change s in watershed hydrology can have significant impacts. The impact may depend on the fraction of the forestedwatershed area occupied by roads. King and Tennyson (1984) monitored the effects of logging road s two years following road construction on streamflow on six headwater watersheds in Nez Perce National Forest in north central Idaho. Comparing the percentages of watershed area disturbed by roads to the daily discharges at the mouths of the watersheds, they observed significant effects in two watersheds. However, hydrologic responses were highly variable and significant changes could not be detected for the other watersheds studied. 6. Pollution from Other Chemicals A ssociated with Forest Roads Forest roads can also contribut e to water quality degradation through runoff of applied roadrelated chemicals (Furniss et al., 1991; Norris et al., 1991; Rhodes et al., 1994) including herbicides, as well as toxic spills (Furniss et al., 1991; IDT, 1996). In r ecent years, the use of chemical site preparation has become increasingl y common, as indicated by the establishment of BMPs for the proper use of chemicals during fore st road management in many states (Williams, 1999). However, the use varies by region, is gene rally less where regenera tion harvest is lower, and is restricted in some states and on some federal lands. 7. Increased Turbidity and Sedimentation in Water Treatment and Supply Systems Sediment-laden water supplies also reduce the ca pacity of storage reservoirs and may require additional treatment to render the water drinkabl e (Lewis, 1998) or shutdowns of surface water supply systems during storm even ts (DEQ Seeds, 2010). The fre quency and duration of water supply system shutdowns can be increased by fo restry activities including road conditions (CA Regional Board turbid ity report 2008). 8. Siltation of Streambed Substrates and Im pairment of Spawning and Rearing Habitat***E.O. 12866 Review - Draft - Do not quote, cite or distribute***

17 of 45 The abundance and quality of spawning substrate can be severely affected by sedimentation. Coarse gravel channel substrates are a critical hab itat requirement for ma ny stream organisms including salmonids and aquatic amphibians and invertebrates, and are considered a scarce resource. Fine sediment depositi on may alter the quality of these gravel streambeds as fine sediment particles embed (cover) the larger partic les and fill in the inte rstitial space in gravel substrates. Deposition may occur well downstream of the sediment source(s), because once fine sediment is delivered to a stre am it can be transported long di stances to a deposition location. In low-velocity stream reaches, excess deposition of fine sediment can completely cover suitable spawning gravel. Massive levels of fine sedime nt delivery can also pr oduce changes in channel habitat by reducing pool fre quency, depth and volume. 9. Degradation of Habitat for Salmonids, Other Fish, Invertebrate s, and Other Aquatic Organisms The physical impacts of forest roads that were not properly co nstructed or ar e not properly maintained can have detrimental effects on fish and fish habitat, where vulnerable species are present. Mechanisms through which the improperly constructed or maintained roads exert these deleterious impacts include fine-sediment effect s, changes in streamflow, changes in water temperature caused by loss of riparian cover or conversion of groundwater to surface water (or vice versa), and barriers to migration. The physicalimpacts of forest roads discussed above can have a widespread and profound effect on fishhabitat and fish communities and populations across a range of environments and conditions (Lee et al., 1997). Serious degradation of fish habitat affecting all life-stages of fish(including migration, spawning, incubation, emergence, and rearin g) can result from poorly planned, designed, located, constructed, or maintained roads, as de monstrated in a number of studies conducted in the Pacific Northwest (Furniss et al., 1991; Henjum et al., 1994; MacDonald et al., 1991; Rhodes***E.O. 12866 Review - Draft - Do not quote, cite or distribute***

18 of 45 et al., 1994). Well-known native aquatic species a ffected by turbidity and sedimentation are salmon (coho, chinook and chum), steelhead, and tr out (cutthroat and rain bow) as well as other native fishes and amphibians (salamanders, tailed frogs). Sedimentation can lead to complete loss of salmonid fisheries (Berry et al., 2003). The effects of forest roads on salmonid habitats have been most studied, including effects on migration, spawning, incubation and juvenile rearing.
D. Description and Effectiveness of BMPs and Curre nt Practices Forest roads are vital components of the huma n use of forested systems (Gucinski et al., 2001). They provide access for recreation, resource extraction, fire suppre ssion activities, and many other forest management ac tivities. While improperly built a nd maintained forest roads can have detrimental effects on the water quality, th e application of approp riate 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 st ormwater discharges from forest roads. These approaches are implemented by the forest road owners themselves or by operators or users of the roads. Depending on the jurisdiction, owners or ope rators use BMPs as a result of state program requirements, federal re quirements, or because they may follow voluntary programs, including forest stewardship and sustainability initiativ es. Under these required or voluntary programs, owners and operators of forest roads use BMPs to minimize or prevent di scharges of pollutants into surface waters. They include design approach es, treatment techniques, operating procedures, and practices to control runo ff, spillage, and leaks.
1. State Programs***E.O. 12866 Review - Draft - Do not quote, cite or distribute***

19 of 45 Most states have forest land management laws regulating multiple as pects of forest and timber resources and management and the products derived from these resources. Many states have a complex legal framework of forestry regul ations that shape the state’s forest road BMP programs. However, this framework and the re sulting BMP programs vary considerably from one state to another. The cont ent of, compliance with, and enfo rcement of forest road BMP programs vary among states. Programs differ in their substantive level of protection, their specificity, and their enforceability. States also differ in how th ey 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 ex isting state programs to i llustrate some of the variety among the states. Descriptions of the re maining 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. Fo rest 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 fore st landowners to complete an inventory of existing roads, identify where roads are impacti ng state resources (including fish and water quality), and allows for prioritization of repairing, relocating, or abandoning existing ro ads to correct problems. All large forest landowners mu st develop and submit for approval by the Washington Department of Natural Resources (DNR) a Road Maintenance a nd Abandonment Plan (RMAP) in which they inventory their forest roads and outline a sc hedule for any needed road work, including a timeline to bring old roads up to current sta ndards or to decommission or “abandon” substandard roads. Small forest landowners are required to submit a “checklist RMAP,” which is a form***E.O. 12866 Review - Draft - Do not quote, cite or distribute***

20 of 45 landowners fill out to indicate they have assessedtheir roads included in a harvest and identified any potential road maintenance problems. While the program is enforceab le, the state focuses first on technical assistance and then, to corr ect problems, uses progressive enforcement mechanisms and generally reserves civil penalties for more serious infractions. If a problem is identified, WA DNR describes the outcome exp ected, and the landowner describes what BMPs will be used to correct it. Forest roads that no longer need to be usedor cannot meet the pe rformance standards are encouraged to be abandoned. Abandonment stra tegies may involve the removal of stream crossing structures and unstable ro ad fill, installing water bars, re-vegetating exposed soils, and employing other similar technique s. WA DNR must approve the roadwork before the road can be considered abandoned. Florida relies primarily on voluntary complian ce with state approved forest road BMPs. However, BMPs can be enforced where noncomp liance leads to a signi ficant risk to water quality. When a significant risk has been identifi ed, professionally-trained BMP foresters advise the landowners on how to implement corrective m easures. Afterward, a follow-up site evaluation is made to reassess compliance. Landowner non- compliance with recomme ndations made by the BMP Forester could result in a referral to the appropriate re gulatory agency for enforcement action. California’s Forest Prac tice Rules establish a comprehensiv e framework thatincludes statedeveloped and approved BMPs fo r silvicultural activities on pr ivate lands, including roadbuilding practices, and other relate d silvicultural activi ties. California allows coverage under one approach that includes requirements that closel y resemble those of an individual permit, known as “Waste Discharge Requirements, ” as well as another approach allowing the use of a “waiver”***E.O. 12866 Review - Draft - Do not quote, cite or distribute***

21 of 45 whose requirements are closer to those of a general or regi onal permit. Having a “waiver” obviates the procedural need for coverage unde r the “Waste Discharge Requirements” program, but the substantive requirements of that program remain enforceable. The California program is based on input fr om state water quality and natural resource agencies and incorporates a formal, annual adap tive 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 overseenby multiple agencies: Californi a Department of Forestry, the California Department of Fish and Game, a nd the state water Qua lity Control Board and Regional Water Quality Control Boards (California’s water quality agency). Many states have been mon itoring forestry BMP implementa tion for the past 20 years or more. During that time, state fo restry agencies have approach ed implementation monitoring in different ways with varying degr ees 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, a nd private non-industria l land (Prud’homme and Greis, 2002). Due to differences in the nature of BMP programs and the methods for measuring BMP implementation, comparisons of compliance rates am ong states are difficult. Past differences in survey design and statistical strength, rigor of inspections, a nd metrics chosen for evaluation within and among states also have hampered precise reporting, comp arison, or evaluation of state or regional progress over time.

2. USDA Forest Se rvice Programs

Forest Service Na tional BMP Program***E.O. 12866 Review - Draft - Do not quote, cite or distribute***

22 of 45 The goal of the USDA Forest Service (USFS) Na tional BMP Program is to improve agency performance and accountability in managing water qua lity in a manner consistent with the CWA and state water quality programs. Current US FS policy directs compliance with required CWA permits and state rules and re gulations, 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 states of implementation. It is intended to provide consis tency among USFS administrative units to efficiently administer BMPs and demons trate performance and acc ountability at multiple scales in an adaptive management context. The program is intended to m eet or exceed state BMP objectives as well as to simplify and standardize water quality pr otection measures and monitoring on NFS land. (U SDA Forest Service 2012) The National Core BMPs integrate existi ng state and USFS regional BMPs under one umbrella to facilitate an agency-wide BM P implementation and effectiveness monitoring program. The National Core BMPs provide a gene ral, non-prescriptive framework of BMPs for the broad range of activities that occur on NFS lands. ( Ibid. )

Forest Service Watershed Condition Framework The USFS’s Watershed Conditi on Framework (WCF) is a comprehensive approach for classifying watershed c ondition, implementing integrated restor ation 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 watershe ds 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 eval uate watershed condition at both the national and forest levels.***E.O. 12866 Review - Draft - Do not quote, cite or distribute***

23 of 45 The WCF consists of reconnaissance-level a ssessments by individua l national forests, implementation of integrated impr ovement activities – including those related to roads – within priority watersheds, validation and monitoring of waters hed condition class changes, and aggregation of program performan ce data for national reporting.
Forest Service Legacy Roads Project The USFS has been engaged in an extensive pr ogram of road improveme nt efforts called the Legacy Roads Project since 2008. The goals of th is effort are to reduce the hydrologic and geomorphic impacts of the exis ting USFS road network on crit ical watersheds and aquatic resources by decommissioning or upgrading forest roads. The Le gacy Roads Monitoring Project is a regional effort to examine the effectivene ss of the road decommission ing, storm damage risk reduction (aka “storm-proofing” ) and road storage projects. 3. United States Department of the Interi or Bureau of Land Management Programs The Bureau of Land Management (BLM) manage s 58 million acres of forest and woodlands in eleven western states and Al aska, 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 expect ation of both parties to agreements is that roads are left in ‘at least as good condition as existing prior to co mmencement 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 sust ained yield without permanent im pairment of the land and quality of the environment. Under Sec 502 of FLPMA, the In terior Secretary is authorized to provide for the maintenance of roads within and near the pub lic lands and perform th at 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 co nstructed and maintainedby logging operators,***E.O. 12866 Review - Draft - Do not quote, cite or distribute***

24 of 45 private landowners, the BLM, the USFS, or stat e or county governments. BLM roads, culverts, and bridges are designed, constructed, and mainta ined 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 ma intenance. In addition, the BLM often includes operational restrictions in their timber sale contracts to reflect appropriate protections for fish species listed under the Enda ngered 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 consolidat e or sell lands or split off se parate corporate entities for business purposes, creating a complex access program. 4. Tribal Programs Tribal governments in partnership with the US government dedicate subs tantial 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 governme nts. The National Indian Fore st Resources Management Act (NIFRMA), Title III, P.L. 101-630, directs the Secret ary of the Interior, in consultation with the affected Indian tribes, to obtai n 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***E.O. 12866 Review - Draft - Do not quote, cite or distribute***

25 of 45 accordance with BMPs, as approved thorough an in terdisciplinary 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 agreemen t or contract with Indian tribes to carry out projects to protect Indian forest land. Protection of such land is particularly import ant for tribes because they pass their land on from ge neration to generation. This helps to en sure 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 Wi sconsin manages 95 percent of the forested portions of the reservation for long-term sustainability through the Menominee Tribal Enterprises which has received certifications for sustai nable management from two gr oups, Scientific Certification Systems (The Forest Conservation Program) and the Rainforest Alliance (SmartWood), and is accredited by the Forest Stewards hip Council. As another example, the Northern Cheyenne Tribe requires that all new roads be ob literated and seeded after forest harvesting activities. Similarly, the Blackfeet Nation has a no net new road miles polic y, in that new forest roads associated with forest harvest must be clos ed, or other roads must be closed in their place. 5. Voluntary Certification Programs On private forestlands, significant BMP impl ementation can be attributed to growing involvement in sustainable forest ry certification programs. Severa l certification programs exist. Under one program, the Sustainable Forestry Initia tive (SFI) of the American Forest and Paper Association, member companies must meet or exceedstate 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 stat e. Some forest products compan ies impose sanctions on timber producers who fail to implement BMPs when logging on other ownerships.***E.O. 12866 Review - Draft - Do not quote, cite or distribute***

26 of 45 Under another, the Forest Stewardship Council (FSC) certification progr am, certified forest owners and operators follow a set of principles and criteria that support res ponsible forest management (FSC 2012). Principles and criteria include conservati on of biological diversity, water resources, soils, and unique and frag ile 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 su stainable management of a working forest (ATFS 2012). In addition to requirements that they be in compliance withstate BMPs, certified forest managers must also attest compliance with eight standards of sust ainability, including the maintenance or enhancement of th e environment and ecosystems. Certification programs can both help ensure implementation of stat e 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 utili ze forestry professionals (e.g., private consultants, certified Master Loggers) when planning any forest mana gement operations. Many certification programs require involvement of forestry professionals. E. Successes and Remaining Challenges The EPA notes that successful federal, state, tribal, and local programs for controlling discharges from logging and fore st roads currently exist in part s of the country and that many forest owners are implementing BMP programs to address these discharges. Some studies have observed trends of decreasing sedi ment input as forest roads are closed and storm-proofed or newly built or brought up to standards (e.g., Dubé et al. 2010).***E.O. 12866 Review - Draft - Do not quote, cite or distribute***

27 of 45 However, not all of the existing programs ha ve been successful at effectively addressing stormwater discharges from forest roads, and these discharges con tinue to cause or contribute to impairments for the Nation’s waters. At the same time, not al l forest roads are alike, and the se verity of the remaining challenges varies. There is evidence that a majority of th e water quality impacts caused by discharges from forest roads within a basin may be attributable to a subset of forest roads or forest road segments (Luce 2001; Luce and Black, 1999). The following section outlines a flexible, non-permitting approach for addressing these remaining challenges, recognizing that the ne twork of forest roads is vast and diverse and that any solution should in corporate the ability to prioritize addressing the more pressing water quality concerns while making consistent incremental improvements to reduce water quality impacts more broadly. III. Approaches for Addressing Discharges fr om Forest Roads, Including Logging Roads
A. Developing a non-permitting approach under Section 402(p )(6) of the Act The EPA plans to propose revisi ons 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.” At the same time, the Agency intends to propose designating stormwater discharges from fo rest roads for regulati on utilizing a flexible, non-permitting approach au thorized under section 402( p)(6) of the Act. The flexible approaches authorized under section 402(p) are well- suited to address the complexity of the forest road universe. Section 402(p)(6) of the CWA allows the EPA flexibility in issuing regulations to addre ss designated stormwater discharges and does not require the use of NPDES permits. Specifically, th e section states that the regulations “shall establish priorities, establish requirements for stat e stormwater manageme nt programs, and establish expeditious***E.O. 12866 Review - Draft - Do not quote, cite or distribute***

28 of 45 deadlines” and may include “performance standa rds, guidelines, guidance, and management practices and treatment requirement s, as appropriate.” 33 U.S.C. § 1342(p)(6). This flexibility is unique to stormwater discharges regulated under th is provision and is differ ent than the treatment of stormwater discharges listed in section 402(p) (2)(B) of the Act, whic h requires a permit for a stormwater discharge associated with industrial activity.
B. Key Considerations The EPA continues to review issues related to stormwater discharges from forest roads and understands that any national prog ram for addressing these discharg es should be informed by several key considerations. The EPA recognized four key consid erations while developing the potential approaches for managing st ormwater discharges described in this notice: (1) the need to leverage existing BMP strategies as well as well as existing effective federal, state, tribal, and voluntary BMP-based programs; (2) the need to a ddress the myriad of relevant site-specific factors that may arise ac ross the landscape; (3) the need to prioritize actions and (4) the need to provide for accountability. Forest road stormwater manage ment programs vary across the c ountry in response to state or regional factors. The EPA will work with federal agencies, states , and tribes to understand their programs and other existing programs (e.g., volun tary forest certifica tion initiatives) for managing stormwater discharges from forest roads and will continue this collaboration throughout the rulemaking process. The Agency will engage other interested stakeholders in the process as well. This notice provides a high level di scussion of existing state, federal, private and tribal programs to manage discha rges from forest roads. The EPA is considering approaches that utilize the frameworks of eff ective, existing BMP programs to minimize disruption to those
programs.***E.O. 12866 Review - Draft - Do not quote, cite or distribute***

29 of 45 A range of guidelines is availa ble to assist forest owners and operators in designing and maintaining forest roads and sel ecting the appropriate BMPs to control stormwater discharges. For example, the EPA has issued national guidance to assist forest owners and operators with the protection of lakes and streams fro m polluted runoff that can result from forestry activity and, in particular, from improperly built or main tained forest roads (USEPA 2005). Other guidance documents have been developed by federal agencies, states, and industry, and standards for voluntary certifi cation programs are also available. Building on flexible, BMPbased approaches would allow fore st road owners and operators to tailor BMPs to site-specific factors such as soils, slope, geologic conditions, precipitation c onditions, and uses. The diversity of the forest road networks, the different classes of roads, the di fferent local physical conditions, and the broad range of road conditions and uses supports an approach that allows tailoring in how BMPs are selected and impl emented. The approaches described in this notice would allow owners and operators to tailor the BMPs they use to addre ss water quality concerns unique to each setting. The EPA also recognizes the need to consider additional factors in de veloping the structure of any potential proposed rule due to the complexi ty and vastness of the forest road network and diversity of the forested landscape. For example, the EPA is consid ering differences among forest uses; ownerships of diffe rent sizes; and types of owners hip including public, private, and tribal-owned lands; as well as fo rest road conditions, type, and us age. Moreover, the selection of appropriate BMPs can vary based on site-speci fic factors, including t opography, road design, soils, geologic factors, road use, and climate. The EPA is consid ering proposing approaches that ensure the appropriate management of stormwater discharges from forest roads and enable forest***E.O. 12866 Review - Draft - Do not quote, cite or distribute***

30 of 45 road owners and operators to consider site-sp ecific factors in identifyi ng the most appropriate BMPs. The EPA recognizes the import ance of prioritization in al locating resources once water quality issues and potential soluti ons are identified to better leve rage available resources. Under the potential approaches described in this no tice, EPA would develop a process for evaluating which discharges for forest roads should be c overed by regulation, and the Agency would seek comment on this process. The approach would then incorporate the ability to prioritize addressing the highest priority water quality concerns, among those forest roads that are included, while making consistent incremental im provements to address water quality impacts more broadly. Such an approach could facilitate the allocation of resources to address discharges in order to protect high quality, or pristine, wate rs. This flexibility would allow the allocation of resources in the most efficient and effective manner, based on the priorities of the particular location. Existing factors, require ments, or commitments could be used to assist in the prioritization process. For exampl e, addressing identified forest road problems in watersheds providing beneficial uses such as fish spawning or public water supply may be a high priority in some areas while waters listed as impaired or included in an existing TMDL could be high priority in others. Moreover, the EPA anticipat es that work already completed under existing programs (e.g., the EPA’s Hea lthy Watersheds Initiative or the USDA USFS’s Watershed Condition Framework, TMDL-related assessment, or Source Water Protec tion Plans) or input from third parties and the public could be valuable in determining priorities under this approach. Lastly, accountability is a key element of a successf ul approach that will help to ensure that stormwater discharges from fo rest roads are properly managed across the country and that***E.O. 12866 Review - Draft - Do not quote, cite or distribute***

31 of 45 reasonable progress in addressing inadequately managed stormwater discharges is made over time.
C. Approaches for Managing Stormwater Disc harges from Forest Roads under 402(p)(6) The above considerations have informed the de velopment of the potential general approaches for managing stormwater discharg es from forest roads, as discu ssed in this section. The Agency intends to propose designating stormwater disc harges from fore st roads for regulation under section 402(p)(6) of the Act, which authorizes the EPA to use flexible, non-permitting approaches to address designated discharges . 33 U.S.C. 1342(p)(6). The EPA presents two preliminary approaches below. The first general approach would provide for th e management of stormwater discharges from forest roads principally through st ate and tribal programs. Under this approach, states and tribes would develop and maintain stormwater manage ment programs that m eet certain criteria established by the EPA through re gulation (e.g., a set of minimum elements). The criteria would be based on those that make exis ting programs successful and could include such elements as: an approach for completing an inventory of fore st roads; requirements for best management practices for forest roads; guidelines for prioritizing and addressing water quality concerns related to stormwater discharg es from existing forest roads; accountability measures; public involvement; and a program for monitoring or auditing to assess program compliance and effectiveness. The EPA seeks comment on appropri ate criteria and a process for verifying those criteria, such as certification by the state. The EPA anticipates that some states and tribes may have existing programs that meet mo st or all of such criteria. The forms that these elements take vary from state to state, as th e following examples demonstrat e. First, all of the programs described in this notice and many other existing state and tribal programs already provide for***E.O. 12866 Review - Draft - Do not quote, cite or distribute***

32 of 45 forest roads BMPs, but some of the programs are voluntary an d others are mandatory. Second, many existing programs also already include acc ountability measures, but these also vary. For example, the California program resembles a permit program and is mandatory, and the Florida program, while voluntary, is enforceable where noncompliance leads to a significant risk to water quality. Third, some progra ms already include provisions to inventory and assess existing forest roads, but the specifics of the programs differ. For example, the Washington State RMAP program requires owners and operators to invent ory their forest roads and outline a schedule to address the old roads, and the Forest Service Watershed Condition Framework provides for the assessments of national forests and implementati on of improvement strate gies within priority watersheds including those related to roads. The EPA continues to gather information on existing state and tribal programs and the elements of those programs and requests comment on the effectiveness of each. Some states or tribes may need to make modifications or add elements to their programs to meet the criteria established by the EPA. For states or tribes th at do not have such programs, the EPA would provide techni cal assistance to help them to de velop such programs, drawing from the expertise of USFS, BLM, tribes, and states with existing programs. The EPA would consider the appropriate amount of time to facilitate state and tribal establishment of such programs. The program could also explicitly allow formal agreem ents such as those between state water quality or forestry agencies a nd other state and federal agencies (i ncluding state or regional offices of federal agencies) in recognition of the existing agreements that have demonstrated improvements to water quality protection through implem entation of BMP progr ams and operation and maintenance of forest roads on state and federal lands. State or tribal programs could also***E.O. 12866 Review - Draft - Do not quote, cite or distribute***

33 of 45 incorporate mechanisms for assuring complian ce through private or thir d-party certification
programs. The Agency could periodically review and certify that the stat e programs meet the minimum criteria identified in regulati ons. The EPA plans to propose and request comment on the level of review that the Agency would take in the development of the st ate programs. The EPA anticipates that state authorities would also include the opportunity for public input into the development of the state program. Owners and operators of forest roads could bedesignated for regula tion and would be in compliance with the regulation if they were operating pursuant to those programs or pursuant to an approved formal agreement. In states or trib al reservations where such a program would not be developed, owners and operators would comply directly with BMPs developed by the EPA, as discussed below. As either a backstop to the approach discussed above, or as an alternative approach, the EPA could develop a BMP framework th at would apply directly to ow ners and operators of forest roads that discharge stormwater to waters of the US. This approach c ould, without using NPDES permits, require owners and operators of forest roads to use BMPs to control their stormwater discharges through development and implementation of a plan to address stormwater discharges from forest roads. Plans would describe the BM Ps they selected, how the BMPs will control stormwater discharges, how th ey will be maintained, and how their performance will be assessed. This approach could also include requirements that owne rs or operators inventory and identify forest roads that discharge stormwater; implement and mainta in BMPs according to a schedule that allows for prioritiz ation in addressing water quality c oncerns related to stormwater discharges from forest roads; regularly asse ss BMP performance; and maintain records. Under***E.O. 12866 Review - Draft - Do not quote, cite or distribute***

34 of 45 this approach, the EPA could provide guidelines for selecting appropriate BMPs that recognize state or tribal guidelines, regi onal differences and site-specific factors, as well as allow for formal agreements with federal and state agencies. In recognition of the diverse universe of forest roads, as discussed above, which may include multiple owners and mult iple users of the same corridor, this general approach could allow multiple owners and opera tors to be covered under the same pl an developed for a particular area or to develop a cooperative agreement. This appr oach would also allow a single plan to address road networks covering large areas. The plans or agreements could also in dicate whether owners and operators have operational control over only limited or specific segments of forest road corridors. In these cases, owners and operators would only be re sponsible for the segments over which they have opera tional control. While the EPA has provided two general approa ches above, the Agency notes that there could be multiple ways in which the Agency could develop the above approaches as well as alternative approaches, given the broad flexibi lity afforded by CWA Se ction 402(p)(6). The EPA invites suggestions on these approaches and a lternative approaches to address stormwater discharges from forest roads. As stated in the summary, the EPA will again seek comment on any proposed rule before taking final action.

D. Outreach and Stakeholder Involvement The EPA is in the process of reviewing av ailable information on both the water quality impacts of stormwater discharges from forest road s as well as existing practices for their control. Consistent with past Agency actions, the EPA i nvites interested stakeholders and the public to share in the exchange of information and to engage as the Agency moves forward with the***E.O. 12866 Review - Draft - Do not quote, cite or distribute***

35 of 45 development of an approach for addressing stor mwater discharges from forest roads, including logging 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 Wa ter Act from state and i ndustry representatives directly. In addition, the EPA has begun communicating with stat es, tribes, and other federal agencies to understand their current forest roadstormwater management programs. The Agency worked closely in particular with USDA (the U SFS) and the Department of the Interior (the BLM). The EPA also welcomes in formation from other interested parties and plans to work closely with other stakeh olders moving forward. The EPA encourages stakeholders and the public to provide input into the development of Agency actions and is already planning to host p ublic meetings and webcas ts to provide a forum for them to do so.
E. Next Steps EPA is initiating work on this rulemaking effort and plans to hold list ening sessions to obtain stakeholder input this summer. The Agency antic ipates proposing a rule by fall 2013 and taking final action by fall 2014. IV. Request for Comment The EPA requests comment on the potential approaches that the Agency is considering for regulating stormwater discharges from forest ro ads outlined in this notice as well as other potential approaches for addressing these discharges. The Agency also seeks comment on the process that the Agency would develop for eval uating which discharges for forest roads should be covered by regulation, the minimum criteria of such programs, and on the process for***E.O. 12866 Review - Draft - Do not quote, cite or distribute***

36 of 45 verifying those criteria. The EPA also invites suggestions on alte rnative approaches to address stormwater discharges fr om forest roads. The Agency seeks input on exampl es of successful existing BMP- based state programs, tribal programs, and voluntary certification-oriented-p rograms for managing stormwater discharges from forest roads; how these pr ograms are implemented; how progr am accountability is assured; the costs of implementing those programs, includ ing costs incurred by owners or operators of forest roads as well as the costs incurred by th e 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 comment on any pr oposed rule before taking final action.

V. References Adams, Darius M.; Haynes, Richard W.; Daigneau lt, Adam J. 2006. Estimate d timber harvest by U.S. region and ownership, 1950-2002. Gen. Te ch. Rep. PNW-GTR-659. Portland, OR: U.S. Department of Agriculture, Fo rest Service, Pacific Northw est Research Station. 64 p.
Aitken, W.W. 1936. The reaction of soil erosion to stream improvement and fish life. Journal of Forestry. 34:1059-1061.
Anderson, H.W., Hoover, M.D. a nd K.G. Reinhart. 1976. Forest a nd water: Effects of forest management on floods, sedimentation and wate r supply. USDA Forest Service, General Technical Report PSW-18. Sa n Francisco, California. American Tree Farm System (ATFS). 2012. http://www.treefarmsystem.org . (visited April 2012).***E.O. 12866 Review - Draft - Do not quote, cite or distribute***

37 of 45 Berry, W., Rubinstein, N., Melz ian, B. and B. Hill. 2003. The Bi ological Effects of Suspended and Bedded Sediment (SABS) in Aquatic Syst ems: A Review. United States Environmental Protection Agency, Office of Re search and Development, National Health and Environmental Effects Laboratory, Narragansett, RI and National Health and E nvironmental Effects Laboratory, Midcontinent Ecology Divisi on, Duluth, MN. August 20, 2003. http://www.epa.gov/waterscience/criteria/sediment/appendix1.pdf. Beschta, R.L. 1981. Management implications of sediment r outing research. Chapter in: Measuring and assessing the effectiveness of a lternative forest management practices on water quality. NCASI Technical Bulleti n 353. National Council for Air and Stream Improvement. New York, NY. August 1981. Beschta, R.L.; Bilby, R.E.; Brown, G.W. 1987. Str eam temperature and aquatic habitat: fisheries and forestry interactions. In: Salo, E.; Cundy, T., eds. Streamside ma nagement: forestry and fishery interactions. Contrib. 57. Seattle: University of Washington, College of Forest Resources: 191-232. Binkley, D. and T.C. Brown. 1993. Forest practices as nonpoint so urces of pollution in North America. Water Resources Bulletin 29(5): 729-740. Burroughs, E.R., Jr.; Chalfant, G. R.; Townsend, M.A. 1976. Slope stability in road construction: a guide to the construction of stable roads inwestern Oregon and north ern California. Portland, OR: US Department of the Interior , Bureau of Land Management. 102 p. Clayton, J.L. 1983. Evaluating slope stability prior to road construction. Res. Pap. INT-307. Ogden, UT: US Departmentof Agriculture, Forest Service, Intermountain Forest and Range Experiment Station. 6 p.***E.O. 12866 Review - Draft - Do not quote, cite or distribute***

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45 of 45 Proceedings of the tenth bienni al southern silvicu ltural research confer ence. Gen. Tech. Rep. SRS-30. Asheville, NC: US Department of Agricu lture, Forest Service, Southern Research Station: 271–276.

Title: Notice of Intent to Addr ess Stormwater Discharges from Forest Roads, Including Logging Roads, using a Non-Permitting Appr oach under the Clean Water Act

Dated:

_______________________________ Nancy K. Stoner Acting Assistant Administrator