## U.S. Environmental Protection Agency 

## Documentation of OMB Review Under Executive Order 12866 Title of Action:

Docket#: FRL#: RIN: This action was submitted to the Office of Manageme nt and Budget (OMB) for review under Executive Order (E.O.) 12866 , titled Regulatory Planning and Review (58 FR 51735, October 4, 1993). Whenever EPA makes publicly available a regulatory action that was reviewed under E.O. 128 66, section 6(a)(3)(E) of the E.O. directs the Agency to also: (1) Make available to the public a copy of the information that was provided to OMB’s Office of Information and Regulatory Affairs (OIRA) for review under the E.O., i.e. , the text of the draft regulatory action and, if applicable, an assessment of the potential costs and benefits, as well as additional information for those actions that are determined to be economically significant under the E.O. (Information requirements are described in sections 6(a)(3)(B) and (C)). (2) Identify for the public any substantive changes between the draft submitted to OIRA and the action that was subsequently issued, using a method that is complete, clear, and simple. (3) Identify for the public those substantive changes made at the suggestion or recommendation of OIRA. 

## For this regulatory action, were substantive changes made to information reviewed under E.O. 12866? [Please check the appropriate answer.] 

## No. [In the docket, include the information identified in item (1) below.] 

## Yes. [In the docket, include the information identified in items (1) – (3) below.] 

## Accordingly, the Agency has included this form and the following information in the public docket for this regulatory action: [Please check the appropriate information.] 

## (1) A copy of the information that was provided to OIRA for review under the E.O. (2) Documentation of any substantive changes made to the draft regulatory text that was submitted to OIRA when compared with what was subsequently made publicly available. The documentation is provided on the pages following this form. Changes made at the suggestion or recommendation of OIRA, if any, are clearly identified through attribution to OIRA. EPA has used one or more of the following methods to note changes: [Select the appropriate option(s).] 

## (a) Redline-Strikeout – A copy of the draft regulatory action submitted, using redlinestrikeout to show the substantive changes that were made. (b) Hand Markup – A copy of the draft regulatory action submitted, using handwritten notes to show the substantive changes that were made. (c) Note to the file - A document that identifies the substantive changes that were made, with page and paragraph references to the draft regulatory action that was submitted. If you have any questions about this regulatory action or this documentation, please call the contact: Name: Email: Phone: Revised 05/05/2010 

### 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 EPA-HQ-OW-2012-0195 9671-5 2040-ZA19



### Jeremy Bauer bauer.jeremy@epa.gov 

### 202-564-27751 of 51 6560-50 ENVIRONMENTAL PROTECTION AGENCY [FRL- XXXX

- X 9671-5 ; EPA-HQ-OW-2012-0195]

Notice of Intent to Address Revise Stormwater Regulations to Specify that an NPDES Permit is not Required for Stormwater Discharges from Forest Roads , Including Logging Roads , using a Non

- Permitting Approach under the Clean and to Seek Comment on Approaches for Addressing Water Act Quality Impacts from Forest Road Discharges

AGENCY : Environmental Protection Agency (EPA).

ACTION : Notice of Intent to Addres s Stormwater Discharges from Forest Roads, Including Logging Roads , using a Non

- Permitting Approach under the Clean Water Act

SUMMARY: The EPA intends to expeditiously propose revisions to its Phase I stormwater regulations ( 40 CFR 122.26) to specify that stormwater discharges from logging roads 1 are not included in the definition of “ storm water discharge stormwater discharges “ associated with industrial activity.” At the same time, the Agency intends to propose designating stormwater discharges from forest road s , This notice is in response to the Ninth Circuit Court of Appeals which include found in Northwest Environmental Defense Center v. Brown that certain logging

1 EPA notes that the 9 th 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 C.F.R. §§ 122.26(b)(14) and 122.27 exclude most silviculture activities from the requirement to obtain an NPDES stormwater permit, with certain exceptions. Formatted: Line spacing: Double2 of 51 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

. are stormwater point sources “associated with i ndustrial 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 vast networks of some forest roads can cause preventable impairments to water quality. Many flexible approaches are available to address discharges from forest roads and to minimize poll utant loading to surface waters , as demonstrated by a review of successful BMP programs that already exist in parts of the country

. In this notice , the EPA is also request ing comment on approaches EPA believes that the Agency is considering for regulating stormwater discharges from forest roads

. Under these approaches, t he EPA would develop a process for evaluating which discharges fr om forest roads should be covered by regulation, evaluated under section 402(p)(6) of the Cl ean Water Act because the section allows for a broad range of flexible approaches that are well-suited to address the complexity of forest road ownership, management, and use. Section 402(p) of the Clean Water Act allows EPA to consider a range of regulatory and non-regulatory approaches and the Agency would take
comment s on this process. The EPA is also seeking input on examples of successful BMP

based determine which forest road discharges (if any) should be regulated under 402(p)(6). The EPA intends to study the wate r quality impacts of forest roads and existing federal, state, tribal, and voluntary certification

- oriented programs . When the EPA proposes new regulations, the3 of 51 designed to address them to determine if additional Agency action is necessary. The EPA will seek comment input again prior to taking final additional action. DATES: Comments must be received on or before [ENTER DATE 90 30 DAYS FOLLOWING PUBLICATION IN THE FEDERAL REGISTER ]. 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: 4101T 2822T , 1200 Pennsylvania Avenue, NW, Washington DC 204 60, Attention Docket ID No. EPA-HQ-OW2012-0195.

• Hand Delivery / Courier: EPA Docket Center, (EPA/DC) EPA West, Room B102 3334 , 1301 Constitution Avenue, NW, Washington, DC, 204 60. 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 e-mail. The http://www.regulations.gov Web site is an Formatted: Indent: First line: 0.25"4 of 51 “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 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 Internet. If you subm it 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 st atue. 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. Formatted: Indent: First line: 0.25"5 of 51 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.

SUPPLMENTARY INFORMATION: I. General Information A. Applicability This notice does not impose requirements on any en tity. 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:// cf pub www .epa.gov/npdes/storm water/forestroads .cfm or under docket EPA-HQ-OW2012-0195. 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 Environmental Defense Center, Inc. v. EPA , 344 F.3d. 832, 863 (9 th 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.” At the same tim e, the Field Code Changed

Formatted: Superscript6 of 51 Agency intends to propose designating stormwater discharges from forest 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 EPA is publishing this notice to request comment on potential

non - permitting approaches that the Agency is considering for regulating stormwater discharges from forest roads. As indicated earlier in this notice, when the EPA proposes any new regulation, the Agency will see k comment again prior to taking final action 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 comp ly 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 discha rges from forest roads. As indicated earlier in this notice, the Agency will seek inpu t again prior to taking additional action. 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 important7 of 51 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 percen t 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. ).8 of 51 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 differe nces 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 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 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 terr ain of differing sensitivities. This mosaic of road segments has implications for how the fore st 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.9 of 51 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 seconda ry 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 sl opes 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, administrativ e, 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. Th e 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

2 Oregon and California (O&C) Lands Act of 1937. 43 U.S.C. §1181a. The O&C Lands Act placed management jurisdiction of the lands under th e United States Department of the Interior.10 of 51 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 fo r 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” (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 we re built or located without the benefit of newer standards. The The wide range of regulatory and non-regulatory approaches authorized under section 402(p ) (6 ) of the CWA are well-suited to address st ormwater discharges originating from the complex and diverse forest road universe because such approaches provide for flexibility and prioritization and may allow EPA to focus on the subset of forest roads with stormwater discharges that cause or contribute to water quality impacts and allow for prioritization among those discharges . Under 402(p) EPA could build on or defe r to other federal, state, tribal, local, and voluntary programs

. C. Overview of Water Quality Impacts from Stormwater Discharges from Forest Roads11 of 51 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 mi llion people rely on NFS lands as the primary source of their drinking water (Dissmeyer 2000). Stormwater runoff discharges from logging roads, especially improperly constructed or maintained forest 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 Assess ment and Total Maximum Daily Loads (TMDL) Tracking and Implementation System (ATTAINS), which contains the most current currently available data reported by states to the EPA under Sections 305(b) and 303(d) of the CWA, found silviculture (forestry) and related activit ies, 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 silvicu lture 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 (const ruction and use)” as the “specific source” of12 of 51 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 qual ity impairments can vary by region, and the full extent of the contribution of discharges from forest roads to water quality impairments may in the ATTAINS database may not be underrepresented in the ATTAINS database representative due to reporting differences among states. Some st ates may have categorized the source of impairment as "hydromodifcation" or "habitat alte ration"; many states consistently report in the "unknown" source category for impairments – th e third leading probable source category of impairment nationwide. Additiona lly, much of the nation's wate rs 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 them. these sources. For example, the EPA recognizes that not all forest roads cause water quality impacts and that within a basin the majority of the water quality impacts caused by discharges from forest roads may be attributed to a relatively small subset of forest roads (Luce 2001; Luce and Black, 1999) . T he discussion on water quality impacts in this notice focuses and often a small portion of those roads (N elson 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. I mproperly 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 by13 of 51 increasing levels of fine sediment input to stre ams and by altering natural streamflow patterns. Forest road runoff from improperly designed or main tained 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 sens itive aquatic biota (salmon, trout, other native fishes, amphibians and macroinvertebrates) wher e 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 hills lope. They can concentr ate 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. As discussed in the following sections,
p otential 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,14 of 51 alteration of stream mo rphology 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. 1

. Increased Loading of Fine and/or Coarse

- Grained Sediment Due to Erosion and Mass Wasting Forest r oads tha t 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 the ir construction , in particular, may contribute more sediment to streams than any other forest ry related land management activity (Gibbons and Salo, 1973; Meehan, 1991). High rates of stream sedimentation can result from this increased erosion. Sediment 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 southeast revealed that 80 percent of the sources of sediment delivery to streams and rivers w ere from the road prism; i.e., road surface, ditches, fill, banks (van Lear et al., 1995; Grace and Clinton, 2006). Surface erosion from forest roads can affect the fine sediment budget and may impose a chronic condition of sediment inputs to streams direc tly affecting the stream substrate and the health of aquatic life (Luce et al., 2001). Forest r oads 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., 1991; Hammond et al., 1988; Megahan et al., 1992). Road

- related landslides and stream crossing failures may result in significant sediment impacts associated with fill from failed road crossings and scoured headwater channels. These types o f sediment inputs tend to be episodic and are15 of 51 often the result of large rainfall events. Landslides 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 example, wet

- weather hauling can be a source of fine

- grained sediment and associated strea m turbidity (Mills et al., 2003; Re id and Dunne, 1984). R esearch by Binkley and Brown (1993) suggests that suspended sediment concentrations in disturbed experimental forested watersheds that have properly implemented BMPs may resemble those of undisturbed forested watershed s. Local variability in soil erosivity can also affect the level of sediment loading. In regions where BMPs were not employed , substantial and variable increases in sediment concentrations occurred. Binkley and Brown (1993) s howed suspended sediment concentrations an order 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 occu rred. 3

. Increased Sediment Deposition and Bed Load Sedimentation is the end result of several processes, including erosion; sediment delivery, transport and deposition; and instream morphological processes. Erosion and mass wasting associated with forest roads can deliver both fine and coarse

- grained sediment to water bodies. While fine

- grained sediment is usually transported suspended in the water column, coarse 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 channel16 of 51 characteristics in low

- gradient stream reaches. Although many of these changes (e.g., reduced pool depth and frequency ) are associated with negative impacts on biota, stream habitat can be potentially enhanced if mass erosion delivers material to s treams where coarse sediment is limited. 4

. Alteration of Stream Morpholo gy and Channel Simplification The increased sediment flux into streams that can be associated with improperly designed or maintained forest roads causes aggradation (the accumulation of sediment in streams and rivers that occurs when the supply of sediment exceeds the ability of the stream to transport the sediment) , filling of pools, and increased channel 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 susceptibility of fishes to disease, reduce metabolic efficiency, shift species assemblages, and inhibit upstream migrati ons (Beschta et al., 1987; Hicks et al., 1991)

. Increased road density is often associated with a decline in the frequency of pools and depth of pools, fundamental components of high

- quality fish habitat w ith increasing road density (Lee et al., 1997). Significant aggradation at channel transi tions 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 channel widths , slopes, and stream bed form s can occur upstream and downstream of road cross ings, and these alterations in channel morphology may persist for long periods of time (Williams , 1999; Heede, 1980). Concentration and diversion of flow by roads into headwater areas can cause incision of previously unchanneled portions of17 of 51 the landscape ( Montgomery, 1994). Forest r oads , particularly in the past, have been built within floodplains and partially within stream channel s . Riprap placed to prevent erosion of the road fill can result in dramatic change s in channel form (Luce et al., 2001). 5

. Altered Streamflow Forest roads that were not properly constructed or are not properly maintained may influence the flow of water through the watershed (Williams, 1999)

. Runoff rates are generally lower with moderated peak flows. Runoff rates are higher from compacted forest road surfaces than from less disturbed parts of watersheds (Elliot and Hall, 1997). The forest road network in a watershed may increase the frequency and magnitude of peak r unoff discharges, particularly i n small watersheds with high road den s ity

. Forest r oads may also increase total runoff and decrease the time to peak runoff from major storms or snowmelt (Elliot, 2000). Forest r oads can interrupt hillslope drainage patterns by intercepting surface and subsurface flow and concentrating and diverting it into ditches, gullies and channels . This can effectively increas e the density of streams in the landscape and reduce groundwater recharge, which can alter the timing and magnitude of peak flows and chang e base flow stream discharge (Furniss et al., 1991; Harr et al., 1975; King and Tennyson, 1984; Wemple et al., 1996) and sub

- surface flows (Furniss et al. 1991; Megahan, 1972). However, the effects on flow throu gh the watershed may be reduced where forest roads are constructed and maintained to drain ditches and gullies and allow water to infiltrate through the soil, thus reducing the effects of concentrating the water. In some instances, forest road

- induced chan ges in watershed hydrology can have significant impacts . The impact may depend on the fraction of the forested watershed area occupied by roads. King and Tennyson (1984) monitored the effects of logging roads two years following road construction on stream flow on six headwater watersheds in Nez Perce National Forest in18 of 51 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, h ydrologic responses were highly variable and significant changes could not be detected for the other watersheds studied

. 6

. Pollution from Other Chemicals Associated with Forest Roads Forest r oads can also contribute to water quality degradation through runoff of applied road

related 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 recent years, the use of chemical site prepar ation has become increasingly common, as indicated by the establishment of BMPs for the proper use of chemicals during forest road management in many states (Williams, 1999). However, the use varies by region, is generally less where regeneration 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 capacity of storage reservoirs and may require additional treatment to render the water drinkable (Lewis, 1998) or shutdowns of surface water supply systems during storm events (DEQ Seed s, 2010). The frequency and duration of water supply system shutdowns can be increased by forestry activities including road con ditions (CA Regional Board turbidity report 2008)

. 8

. Siltation of Streambed Substrates and Impairment of S pawning and R earing H abitat The abundance and quality of spawning substrate can be severely affected by sedimentation. Coarse gravel channel substr ates are a critical habitat requirement for many stream organisms including salmonids and aquatic amphibians and invertebrates, and are considered a scarce resource. Fine sediment deposition may alter the quality of these gravel streambeds as fine19 of 51 sediment particles embed (cover) the larger particles and fill in the interstitial space in gravel substrates. Deposition may occur well downstream of the sediment source(s), because once fine sediment is delivered to a stream it can be transported long distances to a deposition location. In low

- velocity stream reaches, excess deposition of fi ne sediment can completely cover suitable spawning gravel. Massive levels of fine sediment delivery can also produce changes in channel habitat by reducing pool frequency, dep th and volume. 9

. Degra dation of Habitat for Salmonids, Other Fish, Invertebrates, and Other Aquatic Organisms The physical impacts of forest roads that were not properly constructed or are 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 effects, 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 physical impacts of forest roads discussed above can have a widespread and profound effect on fish habitat and fish communities and populations

ac ross 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 rearing) can result from poorly planned, designed, located, con structed, or maintained roads, as demonstrated in a number of studies conducted in the Pacific Northwest (Furniss et al., 1991; Henjum et al., 1994; MacDonald et al., 1991; Rhodes et al., 1994). Well

- known native aquatic species affected by turbidity and s edimentation are salmon (coho, chinook and chum), steelhead, and trout (cutthroat and rainbow) as well as other native fishes and amphibians (salamanders, tailed frogs).20 of 51 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

. 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 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 ac tivities. While improperly built a nd 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 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 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. Formatted: Space Before: 0 pt21 of 51 1. State Programs Most states have forest land management la ws 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. However, this This framework and the resulting BM P programs vary considerably from one state to another. The c ontent of , c ompliance with , and enforcement of forest road BMP
programs vary among states
. P rograms 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 exis ting 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 Ru les 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 sche dule for any needed road work, including a timeline to bring old roads up to current standards or to decommission or “abandon” substandard Formatted: Space Before: 0 pt22 of 51 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 co rrect problems, uses progressive enforcement mechanisms and generally reserves civil penaltie s 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 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, inst alling 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 m easures. 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 statedeveloped and approved BMPs for silvicultura l activities on private lands, including roadbuilding practices, and other related silvicultural activities. California allows coverage under one approach that includes requirements that closel y resemble those of an individual permit, known23 of 51 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 ag encies: 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, prec ision, 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). Due to differences in the nature of BMP programs and the methods for measuring BMP implementation, comparisons of compliance rates among states are difficult . Past differences in survey design and statistical strength, rigor of inspections, and metrics chosen for evaluation within and among states also have hampered precise reporting , comparison, or evaluation of state or region al progress over time.24 of 51 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 stud ying 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 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 states stages of implementation. It is intended to provide consistency among USFS administrative units to efficiently admini ster 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 (W CF) is a comprehensive approach for classifying watershed condition, implementing inte grated restoration in priority watersheds on Formatted: Space Before: 0 pt

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Formatted: Space Before: 0 pt Formatted: Font: Not Italic25 of 51 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 impr ovement activities – including th ose related to roads – within priority watersheds, validatio n 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) manage s 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 existing existed prior to commencement of use’” (43 CFR 2812.6- Formatted: Space Before: 0 pt Formatted: Font: Not Italic

Formatted: Space Before: 0 pt26 of 51 2(b)(2)). The Federal Land Policy Management Act (FLPMA) requires public lands to be managed on the basis of multiple use and sustai ned 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 cooperativ e 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 managing27 of 51 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, P.L. 101-630, directs the Secret ary 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 Secr etary of Agriculture and the Secretary of the Interior to enter into an agreement or contract w ith 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 seed ed after forest harvesting activities. Similarly, the Blackfeet Nation has a no net new road miles po licy, in that new forest roads associated with forest harvest must be closed, or other roads must be closed in their place. 5. Voluntary Certification Programs28 of 51 On private forestlands, significant BMP impl ementation can be attributed to growing involvement of forest owners in sustainable forestry certification programs. Several certification programs exist. Under one program, the Sustaina ble Forestry Initiative (SFI) of the American Forest and Paper Association, member companie s must meet or exceed state BMPs on companyowned forest land (Prud’homme and Greis, 200 2). 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 ei ght 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 oper ations 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, certified29 of 51 Master Loggers) when planning any forest management operations. Many certification programs require involvement of forestry professionals. E. Successes and Remaining Challenges The EPA notes that 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 that many forest owners are implementing BMP programs to address these discharges. Some studies have observed trends of decreasing sediment input as forest roads are closed and storm-proofed or newly built or brought up to standards (e.g., Dubé 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 these 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 within a basin may be attributable can be attributed to a relatively small subset of forest roads or for est road segments (Luce and often a small portion of those roads (Nelson et al., 2010; Fly et al., 2010; Luce and Black, 2001; Luce and Black, 1999). T he following section outlines a flexible, non

- permitting approach for addressing these remaining challenges, recognizing Thus, EPA believes that t he network further study of forest roads and their impacts is vast and diverse and that any solution should incorporate the ability needed in order to prioritize addressing the more pressing determine what additional measures may be needed to address remaining water quality concerns while making consistent incremental improvements to reduce impacts. EPA will consider a full range of potential approaches to address water quality impacts more broadly

. associated with discharges of stormwater from forest roads.30 of 51 III. Approaches for Addressing Managing Stormwater Discharges from Forest Roads , Including Logging Roads

A. Developing a non

- permitting approach under Section 402(p)(6) of the Act The EPA plans to propose revisions to its Phase I stormwater regulations ( 40 CFR 122.26) to specify that stormwater discharges from logging roads are not inc luded in the definition of “storm water discharge associated with industrial activity .” At the same time, the Agency intends to propose 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 regulation utilizing a flexible, non

- permitting approach authorized appropriate action under section 402(p)(6) of the Act. The flexible approaches authorized under section 402(p) are well

- suited to address the complex it y of the forest road universe. Section 402(p)(6) of the CWA allows the EPA flexibility in issuing regulations to address designated stor mwater discharges and does not require the use of NPDES permits. Specifically, the section states that the regulations “ shall establish priorities, establish requirements for s tate stormwater management programs, and establish exped itious deadlines ” and may include “performance standards, guidelines, guidance, and management practices and treatment requirements, as appropriat e.” 33 U.S.C. § 1342(p)(6). This flexibility is unique to stormwater discharges regulated under this provision and is different than the treatment of stormwater discharges listed in section 402(p)(2) (B) of the Act , which requires a permit for a
stormwater discharge associated with industrial activity. 33 U.S.C. 1342(p)(6). Section 402(p) allows for a broad range of regulatory and non-regulatory approaches and provides flexibility as to which stormwater discharges, if any, should be designated under Section 402(p)(6). For example, in lieu of regulation, EPA could support or defer to other federal, state, tribal, local, and Formatted: Space Before: 0 pt, Pattern: Clear31 of 51 voluntary programs. If EPA does determine that regulation under Section 402(p)(6) is appropriate for a subset of stormwater discharg es 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 desi gnate any discharges for regulation in how it regulates those discharges. B. Key Considerations The EPA continues to review iss ues related to stormwater discharges from forest roads and understands that any national program for addressing these discharges should be informed by several key considerations. The EPA recognized four key considerations while developing the potential app roaches for managing stormwater 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 address the myriad of rele vant site

- specific factors that may arise across the landscape ; (3) the need to prioritize actions and (4) the need to provide for accountability. Forest road stormwater management programs vary across the country 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., voluntary forest certification initiatives) for managing stormwater discharges from forest roads and w ill 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 discussion of existing state, federal, private and tribal programs to manage d ischarges from forest roads. The EPA is considering approaches that32 of 51 utilize the frameworks of effective, existing BMP programs to minimi ze disruption to those
programs. A range of guidelines is available to assist forest owners and operators in designing a nd maintaining forest roads and selecting 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 from polluted runoff that can result from forestry activity and, in particular, from improperly built or maintained forest roads ( US EPA 2005). Other guidance documents have been developed by federal agencies, states, and industry , and standards for voluntary certification programs are also available

. Building on flexible, BMP

base d approach es would allow forest road owners and operators to tailor BMPs to site

- specific factors such as soil s , slope, geologic conditions, precipitation conditions, and uses

. The diversity of the forest road networks, the different classes of roads, the different local physical conditions , and the broad range of road conditions and uses supports an approach that allow s tailoring in how BMPs are selected and implemented

. The approaches described in this notice would allow

owners and operators to tailor the BMPs they use to address water quality concerns unique to each setting

. The EPA also recognizes the need to consider additional factors in developing the structure of any potential proposed rul e due to the complexity and vastness of the forest road network and diversity of the forested landscape . For example, the EPA is considering differences among forest uses; ownerships of different sizes; and types of ownership including public, private, and tribal

- owned lands; as well as forest road conditions, type, and usage. Moreover, t he selection of appropriate BMPs can vary based on site

- specific factors , including topography, road design, soils, geologic factors, road use, and climate . The EPA is cons idering proposing approaches that33 of 51 ensure the appropriate management of stormwater discharges from forest roads and enable forest road owners and operators to consider site

- specific factors in identifying the most appropriate BMPs. The EPA recognizes the importance of prioritization in allocating resources once water quality issues and potential solutions are identified to better leverage available resources

. Under the potential approaches described in this notice , EPA would develop a process for evaluatin g which discharges for forest roads should be covered by regulation, and the Agency would see k 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 improvements to address water quality impacts more broadly

. Such an approach could facilitate the allocation of resource s to address discharges in order to protect high quality, or pristine, wat ers. 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, requirements, or commitments could be used to assist in the prioritization proce ss. For example, addressing identified forest ro ad 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 h igh priority in others . Moreover, the EPA anticipates that work al ready completed under existing
programs (e.g., the EPA’s Health y Watersheds Initiative or the USDA USFS’s Watershed Condition Framework , TMDL

- related assessment, or Source Water Protection 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 successful approach that will help to ensure that stormwater discharges from forest roads are p roperly managed across the country and that34 of 51 reasonable progress in addressing inadequately managed stormwater discharges is made over time.

C. Approaches for Managing Stormwater Discharges from Forest Roads under 402(p)(6) The above considerations have informed the development of the potential general approaches for managing stormwater discharges from forest roads , as discussed in this section. T he Agency intends to propose designating stormwater discharges from forest road s 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 the managemen t of stormwater discharges from forest roads principally through state and tribal programs. Under this approach, states and tribes would develop and maintain stormwater management programs that meet certain criteria established by the EPA through regulation (e.g., a set of minimum elements). The criteria would be based on those that make existing programs successful and could include such elements as : an approach for completing an inventory of forest roads; requirements for best management practice s for forest roads ; guidelines for prioritiz ing and addressing water quality concerns related to stormwater discharges from existing forest roads ; accountability measures ; public involvement; and a program for monitoring or auditing to assess program compl iance and effectiveness. The EPA seek s comment on appropriate 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 most or all of such criteria . T he forms that these elements take vary from state to state, as the following examples demonstrate. First , a ll of the programs described in this notice and many other existing state and tribal programs already provide for35 of 51 forest roads BMPs, but s ome of the programs are voluntary and others are mandatory. Second, many existing programs also already include accountability measures , but these also vary. For example, the California program resembles a permit program and is mandator y , and the Florida program, while voluntary, is enforceable where noncompliance leads to a significant risk to water quality. Third, some programs already include provisions to inventory and assess existing forest roads , but the specifics of the programs di ffer. For example, t he Washington State RMAP
program requires owners and operators to inventory their forest roads and outline a schedule to address the old roads, and the Forest Service Watershed Condition Framework provides for the assessments of nationa l forests and implementation of improvement strategies 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 th e 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 that do not have such programs, the EPA would provide technical assistance to help them to develop 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 trib al establish ment of such programs. The program could also explicitly allow formal agreements such as those between state water quality or forestry agencies and other state and federal agencies (including state or regional offices of federal agencies) in recognition of the ex isting agreements that have demonstrated improvements
to water quality protection through implementation of BMP programs and operation and maintenance of forest roads on state and federal lands. State or tribal p rograms could also36 of 51 incorporate mechanisms for assuring compliance through private or third

- party certification
programs. The Agency c ould periodically review and certify that the state programs meet the minimum criteria identified in regulations . The EPA plans to propose and request comment on the level of review that the Agency would take in the development of the state programs. The EPA anticipates that state authorities would also in clude the opportunity for public input into the development of the state program. Owners and operators of forest r oads c ould be designated for regulation 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 develop ed, owners and operators would comply directly with BMP s 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 that would apply directly to owners and operators of forest roads that discharge stormwater to waters of the US. This approach could, without using NPDES permits, require owners and operators of forest roads to use BMPs to control their stormwater discharges through develop ment and implementation of a plan to address s tormwater discharges from forest roads . Plans would describe the BMPs they s elected , how the BMPs will control stormwater discharges , how they will be maintained, an d how their performance will be

assess ed

. This approach could also include requiremen ts that owners or operators inventory and identify forest roads that discharge stormwat er; implement and maintain BMPs according to a schedule that allows for prioritizatio n in addressing water quality concern s related to stormwater discharges from forest roads; regularly assess BMP performance; and maintain records. Under37 of 51 this approach, the EPA could provide guidelines for selecting appropriate BMPs that recognize state or tribal guideline s, regional differenc es 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 multiple users of the same corridor , thi s general approach could allow multiple owners and operators to be covered under the same plan developed for a particular area

or to develop a cooperative agreement . This approach would also allow a single plan to address road networks covering large areas

. The plans or agreements could also indicate whether owners and operators have operational control over only limited or specific segments of forest road corridors. In these cases, owners and operators wo uld only be responsible for the segments over which they have operational control. While the EPA has provided two general approaches above, the Agency notes that there could be multiple ways in which th e Agency could develop the above approaches as well as alternative approaches , given the broad flexibili ty afforded by CWA Section 402(p)(6)

. The EPA invites suggestions on these approaches and alternative 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 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 Formatted: Space Before: 0 pt Formatted: Font: Bold, Not Italic38 of 51 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 inv ites interested stakeholders and the public to share in the exchange of information and to engage as the Agency moves forward with the development of an a pproach considers alternative approaches for addressing stormwater discharges from forest roads , i ncluding l ogging r oads

. 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 communi cating 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 the development of Agency actions 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. E

V . Next Steps

EPA is initiating work on this rulemaking effort and plans to hold listening sessions to obtain stakeholder input this summer. The Agency anticipates proposing a rule by fall 2013 and taking final action by fall 2014. Formatted: Space Before: 0 pt Formatted: Font: Bold, Not Italic39 of 51 IV The Agency will move expeditiously to propose a revision to its Phase I stormwater regulations (40 CFR 122.26) to specify that st ormwater 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 fore st 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. VI . Request for Comment The EPA requests comment on the potential approaches that the Agency is considering for regulating stormwater discharges from forest roads outlined in this notice as well as other potential approaches for addressing these stormwater discharges

. from forest roads. The Agency also seeks comment on the process that the Agency would develop for evaluating which discharges for forest roads sh ould be covered by regulation , the minimum criteria of such
programs, and on the process for verifying those criteria. The EPA also invites suggestions on alternative approaches to address stormwater discharges from forest roads. T he Agency seeks input on examples of successful existing BMP-based state programs, tribal programs, and voluntary certification

- oriented

- programs for managing stormwater discharges from forest roads; how these pr ograms 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 Formatted: Space Before: 0 pt40 of 51 enforcement; the demonstrable successes of these programs; and the lessons learned in implementing such programs. The EPA will again seek commen t input on any proposed rule additional measures to address such discharges before taking final additional action. V VII . References Adams, Darius M.; Haynes, Richard W.; Daigneault, Adam J. 2006. Estimated timber harvest Timber Harvest by U.S. region Region and ownership Ownership , 1950-2002. Gen. Tech. Rep. PNW-GTR-659. Portland, OR: U.S. Department of Agriculture, USDA Forest Service, Pacific Northwest Research Station. p. 64 p . Aitken, W.W. 1936. The reaction Relation of soil erosion Soil Erosion to stream improvement Stream Improvement and fish life Fish Life . Journal of Forestry. 34:1059-1061.
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- cutting Clear-Cutting in the Oregon Coast Range. Water Resources Research 11: 436-444.
Heede, B.H. 1980. Stream dynamics Dynamics : an overview Overview for land managers Land Managers . Gen. Tech. Rep. RM-72. Fort Collins, CO: US Department of Agriculture, USDA Forest Service, Rocky Mountain Forest and Range Experiment Station. 26 p. Henjum, M.G.; Karr, J.R.; Bottom, D.L. [and others]. 1994. Interim protection Protection for late

successional forests, fisheries Late-Successional Forests, Fisheries , and watersheds: national forests east Watersheds: National Forests East of the Cascade crest Crest , Oregon and Washington. Bethesda, MD: Wildlife Society. 245 p. Hicks, B. J., J. D. Hall, P. A. Bisson and J. R. Sedell. 1991. Responses of salmonids Salmonids to habitat changes. In Habitat Changes. Ch. 14 of Influences of forest Forest and rangeland management Rangeland Management on salmonid fishes Salmonid Fishes and their habitats Their Habitats . American Fisheries Society Special Publication 19: 483-518. IDT. 1996. Unpublished accident tables, October 7 , 1996. Idaho Department of Transportation. Office of Highway Safety, 3311 West State Street, Boise, ID 83703

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Intertribal Timber Council (ITC), 2007. National Overview of Tribal Forestry. Proceedings in Trust and Transition: Perspectives on Native American Forestry. April 30, 2007. University of Washington. Available for viewing at http://www.youtube.com/watch?v=WwVwbdg24Hk (viewed March 29, 2012).45 of 51 Jackson, W.L. and Beschta, R.L. 1984. Influences of increased sand delivery Increased Sand Delivery on the morphology Morphology of sand Sand and gravel channels Gravel Channels

. Water Resources Bulletin. 20(4): 527-533. King, J.G.; Tennyson, L.C. 1984. Alteration of streamflow characteristics following road construction Streamflow Characteristics Fo llowing Road Construction in north

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.46 of 51 Lisle, T.E. 1982. Effects of aggradation Aggradation and degradation Degradation on riffle

- pool morphology Riffle-Pool Morphology in natural gravel channels, northwestern Natural Gravel Channels, Northwestern California. Water Resources Research. 18(6): 1643-1651.
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. V64-V74, Proceedings of the Seventh Federal Interagency Sedimentation Conference, 25-29 March 2001, Reno, Nevada NV

. MacDonald, L.H.; Smart, A.W.; Wissmar, R.C. 1991. Monitoring guidelines Guidelines to evaluate effects Evaluate Effects of forestry activities Forestry Activities on streams Streams in the Pacific Northwest and Alaska. EPA/ USEPA 910/9-91-001. Seattle : US Environmental Protection Agency , WA, USEPA , Region 10. 166 p. Madej, M. A. 1982. Sediment Transport and Channel Changes in an Aggrading Stream in the Puget Lowland, Washington. In Sediment Budgets and Routing in Forested Drainage Basins. Swanson, et al. Editors. United States Department of Agriculture. USDA. Pacific Northwest Forest and Range Experiment Station. General Technical Report PNW-141. Meehan, W.R., ed. 1991. Influences of forest and rangeland management on salmonid fishes and their habitats. Spec. Publ. 19. Bethesda, MD: American Fisheries Society. 751 p. Megahan, W. F. 1972. Subsurface flow interception Flow Interception by a logging road Logging Road in mountains Mountains of Central Idaho. pp. 350-356 in Watersheds in Transition.47 of 51 Proceedings of a symposium on " Watersheds in Transition ."

. Fort Collins, Colorado, June 19-22, 1972. AWRA. Urbana, Illinois IL

. Megahan, W.F. and W.J. Kidd. 1972. Effect of logging roads on sediment production
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. Gen. Tech. Rep. SRS-30. Asheville, NC: US Department of Agriculture, USDA Forest Service, Southern Research Station: 271–276.51 of 51 Title: Notice of Intent to Address Revise Stormwater Regulations to Specify that an NPDES Permit is not Required for Stormwater Discharges from Forest Roads, Including Logging Roads , using a Non

- Permitting Approach under the Clean and to Seek Comment on Approaches for Addressing Water Act Quality Impacts from Forest Road Discharges

Dated:

_______________________________ Nancy K. Stoner Acting Assistant Administrator Formatted: Space Before: 0 pt, Pattern: Clear