# Response t o Public Comments

Revisions to Stormwater Regulations to Clarify t hat an NPDES Permit is n ot Required for Stormwater Discharges f rom Logging Roads

November 30, 2012

Docket # : EPA -HQ- OW -2012-0195Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads i 

## Table of Contents

Introdu c tion

............................................................................................... . ............................................ iii

A. Methodology EPA Used to Sort and Code Public Comment Le t ters

.......................... . ........................ iv B. Components of a Coded Comment Letter

................................................................. . ..................... . ... . v C. Locating Commen t s and EPA’s Re sp onse in the Final Do c ument

.................................................... vi D. Attach m ent s

................................................................................................ . ....................................... . xi E. Acronyms

.......................................................................................... . .................................................. . xi
Chapter 1 – Response Essays
Response 1: Comments expressing s upport

.................................................................................. ... ... .1-1

Response 2 : Comments requesting e xtension or suspension of the c omment p eriod

............... .. ....... .1-2

Response 3: Comments related to the request for comment on the May 23, 2012 Notice of Intent and the Agency’s responses to those comments

............................................................................................... .1-3
Response 4: Comments suggesting that the EPA delay or suspend taking final action on the proposed revisions

............................................................................................................................................ . ... .1-4
Response 5 : Comments suggesting that the revision does not address legal uncertainty

................... .1-6
Response 6: Comments supporting the objective of the revision but suggesting alternate language or approaches for clarifying requirements ...................................................................................................1 -8
Response 7: Comments on the categorization of logging roads, forest roads, or silvicultural activities as point or nonpoint sources ......................................................................................................................1

- 11
Response 8: Comments on the categorization of silvicultural activities, logging, logging roads, or forest roads as industrial or non

- industrial or on whether logging roads are immediate access roads to industrial facilit ies

............................................................................................................................................ . .....1

- 13
Response 9: Comments on the addition of language to Phase I stormwater regulations on “rock crushing, gravel washing, log sorting, and log storage” and on the meaning and scope of these terms

............ .1- 18
Response 10: Comments asserting that the revision is substantive and not just a clarification and that it therefore requires the EPA to conduct additional analysis or consultations ..........................................1

- 20
Response 11: Comments on the definitions of the terms logging road or forest road ...........................1

- 21
Response 12: Comm ents on the benefits of forests on water quality and aquatic life; the impacts of stormwater discharges from logging roads, forest roads, and silviculture on water quality; existing programs for addressing water quality impacts of stormwater discharges from logging roads, forest roads, and silviculture; and the documentation of these topics

.............................................................. . .. . ......1

- 22
Response 13: Comments on regulating stormwater discharges from forest roads or logging roads

.. 1- 25
Response 14: Comments asserting that the EPA should provide funding to states

............................ .1- 27
Response 15: Introductions, salutations, references, journal articles, studies, reports, background or descriptive information, and other text

.................................... . ..................................................... 1- 28Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads ii Ch a pter 2 – Individual Com m ents a nd R esponses
1. General Statement of Support

......................................................................................... . .......... . .....2 -1

2. Extension of Comment Period, Endorsements, Incorporate by Reference

...................... . ..... . ...... 2- 32

3. EPA’s Handling of Comments on the Notice of Intent

......................................................... . ......... 2- 34

4. EPA’s or the United States’ Position on NEDC v Brown

.................................................. . ... . ......... 2- 35

5. Requests for the EPA to Delay Action

.................................................................. . ...................... 2- 37

6. Assertions that the EPA Should seek Legislative Support to Specify That Permits Are Not Required for Stormwater Discharges From Logging Roads

................................................................................... ..2- 70

7. Assertions that Revision Does Not Address Legal Unc ertainty

...................................................... .2- 72

8. Suggested Alternative Language or Approaches for Revision

........................................................ .2- 90

9. Assertions that Logging Roads or Forest Roads Are Point Sources or Nonpoint Sources

............ .2- 93

10. Addition of Language to Phase I Stormwater Regulations on “Rock Crushing, Gravel Washing, Log Sorting and Log Storage” and the Meaning of These Terms

............................................................ .2- 100

11. Assertions that Stormwater Discharges From Logging Roads Are Industrial Discharges and an NPDES Permit Should Be Required

.............................................................................. . ................ . .. .2- 102

12. Assertions that the EPA’s Revision Is In Fact Substantive

.......................................................... .2- 122

13. Definitions of the Terms Forest Road or Logging Road

........................................................... .. ...2- 125

14. Section 404 Requirements

....................................................................... . <No comments received>

15. Impacts of Stormwater Discharges From Forest Roads and Existing Programs to Address Them

...................................................................................................................................................... . .... .2- 130

16. Regulating Stormwater Discharges From Forest Roads

.............................................. . .............. .2- 175

17. Assertions that the EPA Should Provide Funding to States

.................................. . ...................... .2- 191

18. References, Descriptions, and Other Information Received

. .......... .................................. . ........... .2- 192Introduction

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads iii 

# Introd uc t ion

On September 4, 201 2

, the EPA pu b lish e d a proposal to revise its Phase I stormwater regulations to clarify that a National Pollutant Discharge Elimination System (NPDES) permit is not required for stormwater discharges from logging roads (77 Fed. Reg. 53834, September 4, 2012)

. The EP A accepted written comments on the proposed rule until October 4 , 201 2. The Agency accepted comments electronically via Doc k et ID No. E PA

- HQ

- OW

- 201 2-0 195 at www.regulation s .go v , by mail

, or by hand deli v ery.

The EPA recei v ed over 90 public comment letters on the proposed rule

. The EPA coded 1 

### these letters

, parsing the m into approximately 500 indi vi dual comments. The EPA has reviewed all comment letters and responded to the comments received on the proposed rule. This document contains these comments and EPA’s respo n ses to them.
The document consists of the following sections :

• Introduction: This section provides an overview of this document and f amili a rizes the reader with the process that the EPA us e d to organize individual comments i nto similar themes or issues for response . The section will also help the reader to find comments and their responses.

• Chapter 1 – Response Essays : Th is chapter contains the response essays that the EPA developed in respon se to themes or issues raised by commenter (s).

• Chapter 2 – Individual Comments and Responses: This section contains individual comments and their response(s). The EPA assigned one or more response essays to each individual comment.

This Introduction des cr ibes the following:

A. Methodol o gy EPA u s ed to sort and code p u blic comment letters B. Components of a coded comment letter C. Locating c o mments and EPA’s r e sponse in the final do c ument D. A ttachments E. Acronyms

1 EPA coded publ i c co mm ent letters us i ng issue catego r ies deve l oped for the proposed rule

. See Table 1.Introduction

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads iv 

### A. M ethodology the EPA Us ed to Sort and Code Public Comment Letters
In responding to public comments, the EPA used the following methodology to sort and code comment letters into similar topics f o r response (see next page for an explanation of these te r ms ):

1. Reviewed each letter in its entirety and assigned each letter an Author ID. 2. Identified the substantive issues addressed in each letter and assigned them to specific issue categories, resulting in multi p le comment IDs for most letters. Not all letters conta i ned substantive comments. 3. Prepared a response for each comment ( in the form of a broad essay addressing each major topic , with responses to individual comments referencing the appropriate essay) , and made revisions to the final rule if appropriate.

The next section des c ribes how a coded com m ent letter looks after it has been coded (so the reader can locate specific com m ents and responses). Note that a comment letter may have been split up into multiple c o mment IDs, each of which have a s sociated responses

.Introduction

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads v 

### B. Components of a Coded Comment Letter
The following diagram illustrates the compo n ents of a coded letter once they have been entered into the comments database. Refer to the section below on Locating Comments and EPA’s Respon s e in the Final Document to learn how to find a comment and the response.

Iss u e Cat ego ry : Refle c ts t he

su bje c t area addres sed by the

co mment

Com m ent ID (last three
n umbers): Sequential number i ng of i n dividual though t s/co m ments w ithin a letter C omment ID : Co mpos ed of the author ID and comm e nt ID; a unique ID in the datab a se to i dentify a particul a r c o mm e nt

Author ID (first f o ur nu m bers): Seque ntial numb e ri n g of com m ent letter auth o rs Attach m ent Numbe r : Wh en multiple d ocu m ents
we re s u bmitted by an author at the same time, th ey were as si g ned an att ach ment num b erIntroduction

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads vi 

### C. Locating Comments and EPA’s Re sponse s in the Final Document
There are several ways for readers to locate comments. The Table of Contents will
as si st readers in locating c o mments and their associated responses, which are grouped by issue category

. Table 1 is the list of issue categories that EPA used in parsing and codi ng comments; readers may simply proceed to the appropriate section in the docu ment (see the Table of Contents) and read all comments on a given subject

. Table 2 provides a list of the commenters ; some readers may wish to locate comments from a specific commenter. Using these resources and the search functions in Acrobat Reader, read ers can easily locate any comments of interest. 2



### Table 1. Issue Cate g ories: The table is a listing of all i ssue categories used for coding. Issue Category Description/ Title 1 General statement of support 2 Extension of comment period, endorsements, incorporate by reference 3 EPA’s handling of comments on the Notice of Intent 4 EPA’s or the United States’ position on NEDC v Brown 5 Requests for the EPA to delay action 6 Assertions that the EPA should seek legislative support to specify that permits are not required for stormwater discharges from logging roads 7 Assertions that r evision does not address legal uncertainty 8 Suggested alternate language or approaches for revision 9 Assertions that l ogging roads or forest roads are point sources or nonpoint
sources 10 Addition of language to Phase I stormwater regulations on “rock crushing, gravel washing, log sorting, and log storage” and the meaning of these terms 11 Assertions that s tormwater discharges from logging roads are industri al discharges and an NPDES permit should be required 12 Assertions that the EPA’s revision is in fact substantive 13 Definitions of the terms forest road or logging road 14 Section 404 requirements 15 Impacts of stormwater discharges from forest roads and existing programs for addressing them 16 Regulating stormwater discharges from forest roads 17 Assertions that the EPA should provide funding to states 18 References, descriptions, and other non

- comment information

2 This document has been published in Adobe Acrobat. The Acrobat Reader provides a number of features to assist readers in locating information. First, readers may use the search function (Ctrl + F o r use the menu Edit, then Search) to search for specific key words or phrases. Second, a reader may use the search function to locate comments from a specific commenter by searching for the commenter’s Document ID. (See Table 2 below.) In this case, the search terms would include the last four digits of the commenter’s Document ID, which will appear in the responses as “Comment ID XXXX

- A1

- 001.001,” where the Xs represent the last four digits of the Document ID. (The other characters in the Document ID are the Docket ID for this rulemaking.)Introduction

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Ro ads vii 

### Table 2. List of Authors: The table provides a list of authors and the associated author ID.

Document ID First Name Middle Name Last Name Organization EPA

- HQ

- OW

- 2012

- 0195

- 0185 Dan Dessecker Ruffed Grouse Society
EPA

- HQ

- OW

- 2012

- 0195

- 0186 Anonymous EPA

- HQ

- OW

- 2012

- 0195

- 0187 David P. Tenny National Alliance of Forest Owners (NAFO) EPA

- HQ

- OW

- 2012

- 0195

- 0188 Steven W. Koehn Maryland Department of Natural Resources (MD DNR) EPA

- HQ

- OW

- 2012

- 0195

- 0189 Charlie Morgan Mississippi Forestry Commission (MS FC)

EPA

- HQ

- OW

- 2012

- 0195

- 0190 Howard M. Persinger, Jr. and Brian S. Keiling West Virginia Land and Mineral Owners Association (WVLMOA) EPA

- HQ

- OW

- 2012

- 0195

- 0191 Carl E. Garrison, III V i rginia Department of Forestry (VA DF) EPA

- HQ

- OW

- 2012

- 0195

- 0192 Linda Casey Alabama Forestry Commission (AL FC) EPA

- HQ

- OW

- 2012

- 0195

- 0193 Tom Partin American Forest Resource Council (AFRC)
EPA

- HQ

- OW

- 2012

- 0195

- 0194 Thomas O'Rourke, Sr. Yurok Tribe

EPA

- HQ

- OW

- 2012

- 0195

- 0195 Ted Sturdevant and Leonard Young State of Washington Department of Natural Resources and State of Washington Department of Ecology (WA DNR and Ecology) EPA

- HQ

- OW

- 2012

- 0195

- 0196 Charles Randy Dye West Virginia Division of Forestry (WVDOF)
EPA

- HQ

- OW

- 2012

- 0195

- 0197 Michelle Bonnet Alaska Department of Environmental Conservation (AK DEC) EPA

- HQ

- OW

- 2012

- 0195

- 0198 Daniel J. Dructor American Loggers Council (ALC)

EPA

- HQ

- OW

- 2012

- 0195

- 0199 Wib Owen North Carolina Department of Agriculture and Consumer Services (NC DACS) EPA

- HQ

- OW

- 2012

- 0195

- 0200 Cam Crawford South Carolina Forestry Association (SCFA) EPA

- HQ

- OW

- 2012

- 0195

- 0201 C.A. "Buck" Vandersteen The Louisiana Forestry Association (LFA) EPA

- HQ

- OW

- 2012

- 0195

- 0202 Robert W. Slocum, Jr. NC Forestry Association (NCFA) EPA

- HQ

- OW

- 2012

- 0195

- 0203 Tom Partin American Forest Resource Council (AFRC) EPA

- HQ

- OW

- 2012

- 0195

- 0204 David Harrelson, Sr. St. Joe Timberland Company of Delaware, LLC
EPA

- HQ

- OW

- 2012

- 0195

- 0205 Galen Schuler Green Diamond Resource Company EPA

- HQ

- OW

- 2012

- 0195

- 0206 Michael Beardsley Professional Logging Contractors of Maine (PLCM) EPA

- HQ

- OW

- 2012

- 0195

- 0207 Ronald H. Hufford Texas Forestry Association (TFA) EPA

- HQ

- OW

- 2012

- 0195

- 0208 Alan M. Robertson Pfalzerwald Tree Farm EPA

- HQ

- OW

- 2012

- 0195

- 0209 Robert S. Qualman Qualman Tree Farm EPA

- HQ

- OW

- 2012

- 0195

- 0210 Bryan Hulka Slade Creek LLCIntroduction

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Ro ads viii

EPA

- HQ

- OW

- 2012

- 0195

- 0211 Paul Lyskava Pennsylvania Forest Products Association (PFPA)
EPA

- HQ

- OW

- 2012

- 0195

- 0212 Deb Hawkinson Forest Resources Association Inc. (FRA) EPA

- HQ

- OW

- 2012

- 0195

- 0213 Russell Drechsel Madison Paper Industries EPA

- HQ

- OW

- 2012

- 0195

- 0214 J.R. "Randy" Bush Virginia Forest Products Association (VFPA) EPA

- HQ

- OW

- 2012

- 0195

- 0215 Bruce R. ZumBahlen Z Acres Tree Farm EPA

- HQ

- OW

- 2012

- 0195

- 0216 L. Mundt EPA

- HQ

- OW

- 2012

- 0195

- 0217 Coleman A. Doggett Doggett Tree Farms EPA

- HQ

- OW

- 2012

- 0195

- 0218 M. Boyd EPA

- HQ

- OW

- 2012

- 0195

- 0219 Zak Covar Texas Commission on Environmental Quality (TX CEQ) EPA

- HQ

- OW

- 2012

- 0195

- 0220 Walter H. Lange Lange Tree Farm EPA

- HQ

- OW

- 2012

- 0195

- 0221 Daniel E. Stuber IV Forest2Market, Inc. EPA

- HQ

- OW

- 2012

- 0195

- 0222 Allan Ryder Timber Resource Group, Inc. (TRG) EPA

- HQ

- OW

- 2012

- 0195

- 0223 Max Braswell Arkansas Forestry Association (AFA)
EPA

- HQ

- OW

- 2012

- 0195

- 0224 James R. Karels Southern Group of State Foresters (SGSF) EPA

- HQ

- OW

- 2012

- 0195

- 0225 John W. Bryant American Forest Management (AFM) EPA

- HQ

- OW

- 2012

- 0195

- 0226 Robert Bauer Kentucky Forest Industries Association (KFIA) EPA

- HQ

- OW

- 2012

- 0195

- 0227 J. Tedrick Racliff Jr. Mississippi Forestry Association (MFA) EPA

- HQ

- OW

- 2012

- 0195

- 0228 Andrew Johnson Graphic Packaging International (GPI)

EPA

- HQ

- OW

- 2012

- 0195

- 0229 Steven H. Gunderson and C. Randy Dye Association of Clean Water Administrators (ACWA) and National Association of State Foresters (NASF) EPA

- HQ

- OW

- 2012

- 0195

- 0230 Kevin Godbout Weyerhaeuser Company EPA

- HQ

- OW

- 2012

- 0195

- 0231 Candace Schnoor John Deere Construction & Forestry Division EPA

- HQ

- OW

- 2012

- 0195

- 0232 Vance Wright Wright Forestry LLC
EPA

- HQ

- OW

- 2012

- 0195

- 0233 Mike Blosser Louisiana Pacific Corporation (LP) EPA

- HQ

- OW

- 2012

- 0195

- 0234 Tom Martin American Forest Foundation (AFF) EPA

- HQ

- OW

- 2012

- 0195

- 0235 Michael Krancer Pennsylvania Environmental Protection Agency (PA DEP) EPA

- HQ

- OW

- 2012

- 0195

- 0236 Greg Haller Pacific Rivers Council (PRC) EPA

- HQ

- OW

- 2012

- 0195

- 0237 Cindy Mitchell and Peter J. Heide Washington Forest Protection Association (WFPA) EPA

- HQ

- OW

- 2012

- 0195

- 0238 Carl Portman Resource Development Council for Alaska (RDC)

EPA

- HQ

- OW

- 2012

- 0195

- 0239 Heather Parent and Douglas Denico Maine Department of Environmental Protection and Maine Forest Service (ME DEP and MFS) EPA

- HQ

- OW

- 2012

- 0195

- 0240 Oscar Baumhoff Baumhoff & Company, LLCIntroduction

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Ro ads ix

EPA

- HQ

- OW

- 2012

- 0195

- 0241 Monica M. Lear Northeastern Area Association of State Foresters (NAASF)
EPA

- HQ

- OW

- 2012

- 0195

- 0242 Richard Garber Boise Inc. EPA

- HQ

- OW

- 2012

- 0195

- 0243 David P. Tenny National Alliance of Forest Owners (NAFO) EPA

- HQ

- OW

- 2012

- 0195

- 0244 Eric Carlson Empire State Forest Products Association (ESFPA) EPA

- HQ

- OW

- 2012

- 0195

- 0245 Bryan Smalley Southeastern Lumber Manufacturers Assocation (SLMA) EPA

- HQ

- OW

- 2012

- 0195

- 0246 Earl Gustafson Wisconsin Paper Council (WPC)

EPA

- HQ

- OW

- 2012

- 0195

- 0247 George L. Geissler Oklahoma Department of Agriculture, Food, and Forestry (OK DAFF) EPA

- HQ

- OW

- 2012

- 0195

- 0248 Jan A. Poling American Forest & Paper Association (AF&PA) EPA

- HQ

- OW

- 2012

- 0195

- 0249 Paul R. Howe Virginia Forestry Association (VFA) EPA

- HQ

- OW

- 2012

- 0195

- 0250 Peter J. Daugherty Oregon Department of Forestry (OR DF)
EPA

- HQ

- OW

- 2012

- 0195

- 0251 Shawn Keough Associated Logging Contractors of Idaho (ALC

- Idaho) EPA

- HQ

- OW

- 2012

- 0195

- 0252 Wayne Brandt Minnesota Forest Industries (MFI) EPA

- HQ

- OW

- 2012

- 0195

- 0253 Earl Gustafson Wisconsin Paper Council (WPC) EPA

- HQ

- OW

- 2012

- 0195

- 0254 Robert S. Lynch Irrigation & Electrical Districts Association of Arizona (IEDAA) EPA

- HQ

- OW

- 2012

- 0195

- 0255 C. Moon EPA

- HQ

- OW

- 2012

- 0195

- 0256 J. P. Bain EPA

- HQ

- OW

- 2012

- 0195

- 0257 Salem G. Saloom Saloom Properties, LLC EPA

- HQ

- OW

- 2012

- 0195

- 0258 Kristina McNitt Oregon Forest Industries Council (OFIC) EPA

- HQ

- OW

- 2012

- 0195

- 0259 Bill Crapser Council of Western State Foresters (CWSF) EPA

- HQ

- OW

- 2012

- 0195

- 0260 George D. Greig Pennsylvania Department of Agriculture (PA DA) EPA

- HQ

- OW

- 2012

- 0195

- 0261 Bill Imbergamo Federal Forest Resource Coalition (FFRC) EPA

- HQ

- OW

- 2012

- 0195

- 0262 J. E. Miller Vermont Law School
EPA

- HQ

- OW

- 2012

- 0195

- 0263 David Schmidt Schmidt Family Forest LLC EPA

- HQ

- OW

- 2012

- 0195

- 0264 John C. Magruder Magruder Family Tree Farm EPA

- HQ

- OW

- 2012

- 0195

- 0265 Josiah Pierce The Pierce Place EPA

- HQ

- OW

- 2012

- 0195

- 0266 Michael T. Goergen Jr. Society of American Foresters (SAF) EPA

- HQ

- OW

- 2012

- 0195

- 0267 Mark Riskedahl Northwest Environmental Defense Center et al. EPA

- HQ

- OW

- 2012

- 0195

- 0268 Elroy Zemke and Jane F. Severt Wisconsin County Forests Association (WCFA)

EPA

- HQ

- OW

- 2012

- 0195

- 0269 Paul Kampmeier and Chris Winter Washington Forest Law Center and Crag Law Center (obo Northwest Environmental Defense Center et al.) EPA

- HQ

- OW

- 2012

- 0195

- 0270 G. M. Ostermayer University of MontanaIntroduction

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Ro ads x

EPA

- HQ

- OW

- 2012

- 0195

- 0271 George Edman Edman Company
EPA

- HQ

- OW

- 2012

- 0195

- 0272 Michael E. Case The Westervelt Company EPA

- HQ

- OW

- 2012

- 0195

- 0273 William E. Snyder State of California Natural Resources Agency EPA

- HQ

- OW

- 2012

- 0195

- 0274 Owen Graham Alaska Forest Association (AFA) EPA

- HQ

- OW

- 2012

- 0195

- 0275 Robert J. Olszewski Plum Creek EPA

- HQ

- OW

- 2012

- 0195

- 0276 Ken Johnson and Paul DeLong Wisconsin Department of Natural Resources (WDNR) EPA

- HQ

- OW

- 2012

- 0195

- 0277 William O'Neill Michigan Department of Natural Resources (MDNR)Introduction

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads xi 

### D. Attachments

Attachments that contained additional data or information and were considered a comment on the proposed revisions were coded into the appropriate issue category, similar to standard comment letters. These comments and responses will appear in Chapter 1.

Attachments that were not considered a c o mment on the proposed revisions were not coded to an issue category. In cases where the author referred to an attachment in the text of the comment, EPA added a cross

- reference to the appropriate do c ument ID. EPA reviewed and considered all attachments in responding to comments, but only responded to those that were directly relevant to the proposed revisions and were therefore considered as a unique comment. Please refer to Response 12 and Response 15.

E. Acronyms

BMP Best Management Practice CFR Code of Federal Regulations CWA Clean Water Act DOJ Department of Justice EPA Environmental Protection Agency ESA Endangered Species Act FR Federal Register FWPCA Federal Water Pollution Control Act (aka C lean Water Act) MSGP Multi

- Sector General Permit NOI Notice of Intent NPDES National Pollutant Discharge Elimination System NEDC Northwest Environmental Defense Center
o bo On behalf of RTC Response to Comment SIC Standard Industrial ClassificationResponse t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 

# Chapter 1: Response EssaysChapter 1 : Response Essay s

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Storm water Discharges from Logging Roads 1-1 

### Response 1: Comments expressing support

The EPA received many comments supporting the Agency’s plan to revise Phase I stormwater regulations to clarify that stormwater discharges from logging roads do not constitute stormwater discharges associated with industrial activity and that a National Pollutant Discharge Elimination System (NPDES) permit is not required for these stormwater discharges. The EPA also received comments expressing support for the Agency ’s efforts to engag e with stakeholders and the public in outreach activities. Many of these commenters also explained the rationale for their support.

The EPA thanks these commenters for their views.Chapter 1 : Response Essay s

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Storm water Discharges from Logging Roads 1-2 

### Response 2: Comments requesting extension or suspension of the comment period

The EPA received request s to extend or suspend the public comment period on the proposed revisions. After careful
consideration, the EPA decided to not extend or suspend the public comment period . The EPA believes that the October 4, 2012 deadline provide d adequate time for the public to review and provide meaningful co mment on the proposed revisions. The proposal merely affirms the current practice of not requiring an NPDES permit for discharges from logging roads. The public was aware of the EPA’s plan to propose this rule revision, and its reasons for doing so, since May 23, 2012 when the EPA first issued a formal notice indicating its intent to propose this change . Moreover, on May 24 , 2012 and again on September 4, 2012, the United States Department of Justice (DOJ) filed amicus curiae briefs explaining the

administr ative steps that the EPA planned to take, and is taking in the final rule, to clarify “expeditiously” that an NPDES permit is not required for stormwater discharges from logging roads.

See also Response 4: Comments suggesting that the EPA delay or suspend taking final action on the proposed revisions

.Chapter 1 : Response Essay s

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Storm water Discharges from Logging Roads 1-3 

### Response 3: Comments related to the request for comment on the May 23, 2012 Notice of Intent and the Agency's responses to those comments

The EPA received comment asserting that the Agency has not responded to the comments received on the May 23 , 2012 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 (77 Fed. Reg. 30473, May 23, 2012). While the EPA has reviewed the comments received in response to

the Notice of Intent
, the Agency explained in the Notice of Proposed Revisions to Stormwat er Regulations To Clarify That an NPDES Permit Is Not Required for Stormwater Discharges From Logging Roads (77 Fed. Reg. 53837, September 4, 2012) that the EPA would not be developing responses to those comments as part of this rulemaking. The EPA stated “If you submitted comments in response to the earlier Federal Register Notice that you believe to be relevant to the rule proposed today, please resubmit your comments in accordance with the process outlined above.” Ibid

.

Some of these commenters asserted that the Agency should have responded to their comments on the water quality impacts of stormwater discharges from logging roads or forest roads and to the studies and references that they provided on the topic before proceeding with finalizing the propos ed revisions. See Response 12. Others commented on approaches for addressing water quality impa cts from logging road or forest road discharges. See Response 13. T he EPA did not propose and is not promulgating new requirements for stormwater discharges from logging roads or forest roads at this time and therefore these comments are outside the scope of this rule. This rule simply clarifies EPA’s longstanding position that certain discharges are not industrial stormwater discharges as that term is defined in section 402(p) of the Clean Water Act and 40 CFR part 122.Chapter 1 : Response Essay s

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Storm water Discharges from Logging Roads 1-4 

### Response 4: Comments suggesting that the EPA delay or suspend taking final action on the proposed revisions

The EPA received comment asserting that the Agency should delay or suspend taking final action on its proposal to revise the Phase I stormwater regulations in response to the Northwest Environmental Defense Center v. Brown , 640 F.3d 1063 (9 th 

### Cir. 2011) ( NEDC ) ruling

. Many of these commenters asserted that the Agency should have support ed Supreme Court review of NEDC and that the EPA should delay or suspend taking final action now that the Supreme Court has granted review of the case . Many of these commenters also assert ed that the Supreme Court ’s ruling may provide further clarity or guidance on the Ninth Circuit ruling on the Phase I stormwater regulations, on the Silvicultural
Rule, and on whether stormwater discharges from logging roads are point sources or stormwater discharges “assoc iated with industrial activity.” These commenters assert ed that the ruling is relevant to the proposed rule and to whether a

rule revision i s necessary at all. They also suggest ed that it would be more efficient for the Agency to delay or suspend taking final action on the proposed revisions until after the Supreme Court rules rather than to complete one revision

now based on the ruling of the Ninth Circuit Court of Appeals and possibly another revision later based on the ruling of the Supreme Court
, depending on how the Supreme Court rules

. These c ommenters also asserted that waiting would cause less confusion to stakeholders and the public. Other commenters noted that the Congressional moratorium on the issuance of NPDES permits for stormwater discharges from logging roads was extended until March 2013 and asserted

that the EPA therefore lacks an urgent need to finalize the proposal now.

T oday’s action uses the administrative process to end any uncertainty created by the Ninth Circuit’s holding in NEDC by clarifying what constitutes a discharge “associated with industrial activity.” By moving to finalize this rule expeditiously, the EPA is providing stakeholders the regulatory certainty needed in the wake of the Ninth Circuit’s decision and is reaffirming the EPA’s long

- standing regulatory position regarding the applicability of stormwater regulations to logging roads. In doing so, this final rule cancels out any on

- the

- ground impacts of the Ninth Circuit’s decision. O n May 24 , 2012 and again on September 4, 2012, the Solicitor General filed amicus cu riae briefs explaining the administrative steps that the EPA planned to take, and is taking today, to clarify “expeditiously” that an NPDES permit is not required for stormwater discharges from logging roads. F or the comments asserting that the Agency shou ld have supported Supreme

Court review of NEDC v. Brown , the Solicitor General’s May 24 , 2012 amicus curiae brief m entioned above provided the federal government’s position on the petitions for writs of certiorari to the United States Court of Appeals for the Ninth Circuit ( Brief for United States as Amicus Curiae, NEDC v. Brown , 640 F.3d 1063 (9 th 

### Cir. 2011 ) ) and the government’s September 4 , 2012 brief provides its views regarding the litigation. In that brief and in EPA’s oppositio n to certiorari EPA

st ated, “by clarifying that channeled stormwater discharges from logging roads are not ‘ associated with industrial
activity, ’ EPA’s proposed regulatory approach would render moot petitioners’ objections to the court of appeals’ conclusion that such discharges are subject to NPDES permitting requirements under the current regulatory scheme. . . . If an interested party is unhappy with the ultimate outcome of EPA’s rulemaking process, any new rule will be subject toChapter 1 : Response Essay s

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Storm water Discharges from Logging Roads 1-5 

### direct judicial review pursuant to 33 USC 136 9(b) on the Agency’s developed administrative record.” US Opp. Cert. at

*18. The Supreme Court is reviewing the NEDC v. Brown decision. The EPA will be prepared to respond to the Court’s decision in an appropriate manner, if a response becomes necessary.

For comments asserting that the revision does not address legal uncertainty or suggesting that the EPA seek legislative or judicial support to achieve legal certainty, see Response 5.

For general comments on the EPA’s decision to finalize the proposed r evisions, see the preamble of the final rule in

which the EPA documents its rationale for taking final action on this revision.Chapter 1 : Response Essay s

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Storm water Discharges from Logging Roads 1-6 

### Response 5 : Comments suggesting that the revision does not address legal uncertainty

The EPA received comment asserting that stakeholders including logging road owners, operators, and users ; states and local governments; and the public need legal certainty . Some of these commenters asserted that the proposed revision s do not address uncertainty created by the Ninth Circuit’s holding in Northwest Environmental Defense Center v. Brown
, 640 F.3d 1063 (9 th 

### Cir. 2011) ( NEDC )

. Others asserted that promulgating regulatory changes while the case is pending before the Supreme Court creates additional uncertainty

. Some assert ed that the proposed revisions , if finalized, would be challenged in the courts and ultimately arrive before the Ninth Circuit (like NEDC ). Others asserted that such future litigation would undermine regulatory certainty and create continued confusion , disruption, litigation , and costs

. Some

of these commenters asserted that the legal certainty can not be achieved by the EPA administratively and that the Agency should instead have supported review of the NEDC decision by the Supreme Court (see Response 4). S ome of

t hese commenters asserted that the best or only path for providing legal certainty would be validation of the

Silvicultural Rule by the Supreme Court or a decision by the Supreme Court specifying that logging roads should be

treated as non

- industrial or as nonpoint sources of pollution and not subject to NPDES permits . These commenters suggested that the Agency should therefore await the Supreme Court’s decision

. Other commenters suggested that the EPA should have sought relief from Congress and that only le gislative action specifying that logging roads should be

treated as non

- industrial or as nonpoint sources of pollution and not subject to NPDES permits would provide legal
certainty

.
The EPA recognizes the need that stakeholders and the public have for legal certainty but disagrees with commenters

who assert that the revision does not address legal uncertainty or that a Supreme Court ruling or act of Congress would be necessary to achieve legal certainty . With today’s action , the EPA is using the tools at its disposal to end any uncertainty created by the Ninth Circuit’s holding in NEDC administratively by clarifying what constitutes a discharge “associated with industrial activity.” By moving to finalize this rule expeditiously, the EPA is providing the regulatory certainty needed in the wake of the Ninth Circuit’s decision and is reaffirming the EPA’s long

- standing regulatory position regarding the applicability of existing stormwater regulations to logging roads. In doing so, this final rule cancels

ou t any on

- the

- ground impacts of the Ninth Circuit’s decision. The key issue before the Supreme Court in the citizen suit matter is what EPA’s regulations currently require and whether appropriate deference was afforded to EPA’s interpretation. The US’s view is that the Court should have deferred to EPA’s interpretation of the regulations

. EPA views any broader pronouncement about the extent of EPA’s authority to designate logging roads for regulation under section 402(p) as unnecessary to the decision in t he case. The EPA’s action today would merely establish regulatory clarity in the meantime.Chapter 1 : Response Essay s

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Storm water Discharges from Logging Roads 1-7 

### O n May 24 , 2012 and again on September 4, 2012, the United States Department of Justice (DOJ) filed amicus curiae briefs explaining the administrative steps that the EPA planned to take, and is taking today, to clarify “expeditiously” that an NPDES permit is not required for stormwater discharges from logging roads.

For comment s suggesting that the final rule will be challenged in the courts
, the Agency is confid ent that its final rule and its rationale are legally defensible. The EPA possesses the discretion to clarify that discharges from logging roads do

not fit into the definition of stormwater associated with industrial activity

.Chapter 1 : Response Essay s

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Storm water Discharges from Logging Roads 1-8 

### Response 6 : Comments supporting the objective of the revision but suggesting alternat e language or approaches for clarifying requirements

The EPA received comments supporting the revision but suggesting that the Agency use alternate language or approaches for clarifying requir ements. Some of these commenters requested that the Agency delay or suspend taking final action on the proposed revision (see Response 4) but also provided suggestions to the EPA in case the Agency

decided to move forward with a final rule. S ome commenters suggested that the Agency specify which activities or

facilities are not subject to stormwater discharge permit requirements

. S ome of these commenters suggested that the

EPA indicate explicitly that stormwater discharges from logging roads do not require NPDES permits. Others suggested

that the EPA indicate that stormwater discharges from any forest road, including logging roads, or from silvicultural sources in general do not require NPDES permits. Others suggest ed that the EPA simply “remove logging” or exclude SIC

code 2411 from the definition of stormwater discharge associated with industrial activity

.

The EPA acknowledges the support expressed for the objective of the revision but disagrees with the suggestions for alternate language or approaches. T he EPA believes that the final language clarifies the applicability of Phase I stormwater regulations to stormwater discharges from logging roads by specifying which facilities are covered and further explaining that the remaining silvicultural facilities are not includ ed

. The Agency’s intent is simply to clarify existing requirements and not to issue any new requirements, interpretations, or exemptions. The final language indicates explicitly which facilities are included in the definition of stormwater discharges “associated with industrial activity” (i.e., “Facilities classified within Standard Industrial Classification 24, Industry Group 241 that are rock crushi ng, gravel washing, log sorting, or log storage facilities operated in connection with silvicultural activities”) and further explains that “not included are all other types of silvicultural facilities.” This approach negates the need to specify which

activities or facilities are excluded or to “remove logging” or exclude SIC code 2411. The Agency believes that the four

listed activities continue to be appropriately defined as “associated with industrial activity” and should not be redefined

as non

- industrial.

Some commenters suggested that the EPA assert that logging roads are nonpoint sources. For these comments, see response above and Response 7.

Other commenters suggested that the EPA assert that neither logging, nor logging roads
, nor stormwater discharges from logging roads are associated with industrial activity. Similarly, others assert ed that all nonpoint source silvicultural activities listed in 40 CFR 122.27(b), including timber harvesting, are not industrial activities. See response above and Response 8. As the EPA notes in the preamble, t he supplemental language in the Phase I rule includes the term “immediate access road.” The EPA considers “immediate access roads” to refer to roads which are exclusively or primarily dedicated for use by the industrial facility. See 55 Fed. Reg. 47990, 48009 (Nov. 16, 1990). These “immediateChapter 1 : Response Essay s

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Storm water Discharges from Logging Roads 1-9 

### access roads” do not include public access roads that are state, county, or federal roads such as highways or Bureau of Land Management roads which happen to be used by the facility. See id. The Phase I regulation defines the term “storm water discharge associated with industrial activity” to include stormwater discharges from facilities identified in the rule by standard industrial classification or “SIC” code at 40 CFR 122.26(b)(14). The Phase I regulation included in the definition of that term SIC code 24 (Lum ber and Wood Products) which includes 2411 (logging), but the Agency also had specified in the Phase I rule that the term does not include discharges from facilities or activities excluded from the NPDES program under other parts of the EPA’s regulations, including the Silvicultural Rule. The EPA had previously specified under the Silvicultural Rule which silvicultural discharges were to be included in the NPDES program (40 CFR 122.27). The EPA intended to regulate those same “silvicultural point source[s]” under the Phase I rule (i.e., rock crushing, gravel washing, log sorting, and log storage facilities) and to exclude from the Phase I regulation stormwater runoff from other silvicultural activities. For the “silvicultural point source[s]” (i.e., rock crushing, gravel washing, log sorting, and log storage facilities) regulated under the Phase I rule, the term “storm water discharge associated with industrial activity” includes “immediate access roads” (40 CFR 122.26(b)(14)(ii)). Unlike “immediate access ro ads” associated with industrial facilities, many logging roads have multiple uses, including recreation and general transportation, and commonly extend over long distances (i.e.; may not provide “immediate access” to an industrial site). The intent of the EPA in this rulemaking is that the NPDES program requirements be implemented with regard to “immediate access roads” in the same way they were implemented prior to the decision by the Ninth Circuit.

Some commenters suggested that the EPA specify that loggi ng roads are not immediate access roads to industrial

facilities . Some commenters disagreed and asserted that they are immediate access roads . S ee response above,
Response 8 , and the preamble to the final rule

.

The EPA also received comment on the addition of language to Phase I stormwater regulations on “rock crushing, gravel washing, log sorting, and log storage” and on the meaning and scope of these terms , especially as they relate to incidental or temporary log stacking, sorting , and storage tha t may occur during harvesting operations. Specifically
, some commenters asserted that the EPA should indicate that incidental log stacking, sorting, or storage that may occur at an active timber harvesting site does not transform that timber harvesting int o an industrial activity. Similarly, some

commenters suggested that the EPA should promote regulatory clarity and avoid confusion by adding language to the final rule or preamble reiterating the interpretations that the EPA set forth in issuing the 1995 Mu lti

- Sector General Permit for Stormwater Discharges Associated with Industrial Activity, in which the Agency discussed that discharges

from “harvesting operations”, “incidental stacking” and “temporary storage” do not require permit coverage. The EPA

belie ves that defining these terms is beyond the scope of this rulemaking. T he terms “rock crushing, gravel washing, log sorting, and log storage” are already defined at 40 CFR 122.27(b)(2)

- (3). The EPA believes that the existing definitions sufficiently convey the meaning and scope of these terms , that the regulated community is familiar with these termsChapter 1 : Response Essay s

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Storm water Discharges from Logging Roads 1- 10 

### and has been implementing the existing provisions. This notice is not intended to change existing practices. Therefore, the EPA is not changing the existing de finitions or including additional language in the final rule. See also Response 9.

See also the preamble of today’s action for a discussion on the Agency’s rational for the final rule.Chapter 1 : Response Essay s

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Storm water Discharges from Logging Roads 1- 11 

### Response 7 : Comments on the categorization of logging roads , forest roads , or silvicultural activities as point or nonpoint source s

The EPA received various comments on the proper categorization of logging roads, forest roads, and silvicultural activities including harvesting, transport, rock crushing, gravel wash ing, log sorting, log storage , etc. as either point
sources or nonpoint sources . Some commenters asserted that some or all of these are nonpoint sources and that the Agency should indicate this in the final rule. Some asserted specifically that natural runoff from logging roads or forest roads, even when channeled through culverts and ditches, is a nonpoint source. Some of t hese commenters also suggested that the EPA should defend the Silvicultural Rule or assert through the current rulemaking that logging roads

or forest roads are nonpoint sources beyond the reach of the NPDES program and that stormwater runoff from these

roads is best managed through best management practices (BMPs) outside of the NPDES program. Some commenters

also suggest ed that any further action by the EPA on logging roads or forest roads under its 402(p)(6) authority should be conducted under the assumption that these roads are nonpoint sources to avoid bringing them or other sources into a regulatory program under 402(p)(6). See Respo nse 13.

Others asserted that logging roads are point sources. To support their positions, t hese commenters pointed to the statutory definition of point source or to the ruling of the Ninth Circuit in NEDC

. Similarly, the EPA received comment asserting th at the proposal to revise Phase I Stormwater Regulations, in response to the Ninth Circuit Court decision of Northwest Environmental Defense Center v. Brown (2011), ignores the statutory definition of “point source” under the Clean Water Act (CWA). T he EPA received comment asserting that defining all logging roads as nonpoint source would

be erroneous because of the inclusion of pipes, ditches and channels as “point sources” in the Clean Water Act definition of point source. Th is comment asserted that t he E PA therefore cannot exclude pipes, ditches and channels along logging roads from the Phase I rule based on the assertion that pollution from those sources is nonpoint in nature.

The EPA also received comment on the text appearing in footnote 1 of the proposed rule which stated that “ Nothing in this proposed rule should be construed as conceding that discharges of stormwater from logging roads constitute point source discharges, a question on which the Supreme Court has granted review for the October 2012 te rm.” Some commenters interpreted this statement as a declaration by the EPA that stormwater discharges from logging roads are nonpoint sources and expressed either agreement or disagreement.

T he Agency is not declaring or defining logging roads, forest roads, or any silvicultural activity as either point source s or nonpoint source s as part of today’s action

. The EPA does not need to determine whether logging roads or other silvicultural activities are point sources or not because this rulemaking is only in tended to clarify what discharges are associated with industrial activity and therefore require NPDES permits

. The CWA does not require NPDES permits for all
point sources of stormwater. Under the 1987 Amendments to the CWA, which added section 402(p), Con gressChapter 1 : Response Essay s

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Storm water Discharges from Logging Roads 1- 12 

### established a temporary moratorium on all stormwater permitting except for certain listed discharges. These listed dischargers are: discharges with respect to a permit had already been issued before Feb. 4, 1987, point sources that EPA

has defined a s associated with industrial activity, or from municipal separate storm sewer systems serving populations above certain sizes, or that the EPA has specifically designated to be regulated to protect water quality or is a significant contributor of pollutant s to waters of the United States . 33 USC 1342(p)(2), (p)(6). E ven if some logging road discharges are point sources of stormwater, they do not require permits unless and until the EPA defines them as sources of

industrial stormwater under section 402(p)(2) or designates them for regulation under section 402(p)(2)(E) or (p)(6). Today the Agency is revising 40 CFR 122.26(b)(14)(ii) to clarify that the only activities under SIC code 2411 that are “industrial” are rock crushing, gravel washing, log sorting, and log storage. Logging roads are not included in this

definition

. Today’s action ends any uncertainty created by the Ninth Circuit’s holding in NEDC administratively by clarifying what constitutes a discharge “associated with industrial activity.” This revision does not remove any existing
exemptions or add any new requirements. As discussed in th e preamble, the EPA did not intend logging roads themselves to be regulated as industrial facilities, but, in light of NEDC , the EPA is mo difying 40 CFR 122.26(b)(14) to clarify the Agency’s intent. This clarifies, contrary to the Ninth Circuit’s decision in NEDC , and consistent with the United

States’ brief before the Court
, that discharges of stormwater from silviculture facilities other than the four specifically named silviculture facilities identified above do not require an NPDES permit.

See also the brief on petitions for writs of certiorari to the United States Court of Appeals for the Ninth Circuit ( Brief for

United States as Amicus Curiae, NEDC v. Brown , 640 F.3d 1063 (9 th 

### Cir. 2011) ) and the brief on writ of certiorari to the United States Court of Appeals for the Ninth Circuit ( Brief for United States as Amicus Curiae Supporting Petitioners,

NEDC v. Brown , 640 F.3d 1063 (9 th 

### Cir. 2011) ).Chapter 1 : Response Essay s

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Storm water Discharges from Logging Roads 1- 13 

### Response 8 : Comments on the categorization of silvicultural activities, logging, logging roads, or forest roads as

industrial or non

- industrial or on whether logging roads are immediate access roads to industrial facilities

The EPA received comments on the categorization of silvicultural activities, logging, logging roads, and forest roads as

either industrial or non

- industrial and on whether or not logging roads a re immediate access roads to industrial facilities

.

Some commente rs suggested that the EPA should clarify that all harvest activities that occur in the woods are non

industrial, nonpoint source silvicultural activities. S ome suggested that the EPA should indicate explicitly that all silvicultural nonpoint source activities listed in 40 CFR 122.27(b), including timber harvesting, are not industrial activities

. Similarly, some suggested that the EPA should focus on the Ninth Circuit’s characterization of “logging” as industrial activity and specify in response that logging activities including harvesting operations are, in fact, non

- industrial. Some

commenters asserted that incidental log stacking, sorting, and storage that may occur at an active timber harvesting site does not transform that timber harvesting into an industrial activity and requested that the Agency clarify

. See Response

9.

In contrast, other commenters asserted that logging operations including log hauling and transport constitute “industrial activity” under the Clean Water Act

. Some commenters asser ted that the EPA should distinguish active, industrial logging roads that generate stormwater discharges associated with industrial activity from other logging roads or forest roads and that the former should remain regulated under the EPA’s Phase I stormw ater regulations. Others asserted that the EPA has not articulated a rational basis consistent with the Act for categorizing some phases of timber harvesting process as “industrial” while categorizing other phases of the same process as non

- industrial. Som e asserted that where those roads utilize pipes, ditches, and other point sources to collect and convey stormwater that they generate stormwater associated with industrial activity and that the EPA is required to regulate them under the Phase I

stormwater regulations. Others noted the inclusion of SIC code 24 in the Phase I stormwater regulations and asserted that, therefore, stormwater runoff from logging is a stormwater discharge associated with industrial activity. Such

commenters asserted that e xempting industrial logging roads stormwater discharges from regulation under the NPDES permit program fails to proactively “restore and maintain the chemical, physical, and biological integrity of the nation’s waters,” the objective of the CWA. Similarly, others pointed to the Phase I preamble and regulatory language asserting that logging roads are “material handling sites...used for the transportation or conveyance of any raw material” or
“immediate access roads” to industrial facilities and that, therefore, storm water discharges from such roads require permit coverage under the Phase I stormwater regulations. Some commenters suggested that the EPA not focus any

discussion on “access roads.” Such commenters also asserted that logging companies and industrial forest land owners should bear the cost of eliminating or minimizing channeled sediment delivery from their roads into the nation’s waters just as other industries face permitting costs under the Clean Water Act. Another commenter suggested that the EPAChapter 1 : Response Essay s

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Storm water Discharges from Logging Roads 1- 14 

### regulate what the commenter described as point source discharges of pollutants from industrial logging roads under the existing NPDES permit program, and not rely on best management practices with what the commenter asserted to be limited regulatory oversight. The commenter also asserted that BMPs are inadequate.

Some commenters asserted that the EPA cannot move discharges from regulation under Phase I stormwater regulations to regulation under a Phase II program. Such commenters asserted that the Act only allows the EPA to exclude a stormwater discharge from the Phase I stormwater regulations if it is not associated with industrial activity and that it is not for the EPA to say whether or not these discharges are associated with industrial activity

.

The term “stor mwater discharge associated with industrial activity” is an ambiguous term that the EPA is authorized to
interpret

. As one commenter noted, Webster’s New World Dictionary defines “industry” as “any particular branch of producing, esp. manufacturing, enter prise” or “any large

- scale business activity.” This is particularly appropriate for stormwater which poses regulatory challenges due to the vast number of facilities potentially affected and the variable nature of stormwater discharges. EPA currently esti mates that the stormwater program nearly triples the number of
NPDES permittees. See EPA website listing approximate numbers of permittees regulated, available at http://www.epa.gov/compliance/data/results/performance/cwa/index.html#1

. Congress could not have expected the EPA to require industrial stormwater permits for every kind of production or business activity in the country. As relevant to silvicultural activities, in describing the scope of the term “associated with industrial activity,” several members of Congress explained in the legislative history that the term applied if a discharge was “directly related to manufacturing, processing or raw materials stor age areas at an industrial plant.” Vol. 132 Cong. Rec. H10932, H10936 (daily ed. October 15, 1986); Vol. 133 Cong. Rec. H176 (daily ed. January 8, 1987 ). The Phase I rule defined the statutory term “associated with industrial activity” by adopting the lan guage used in the legislative history and supplementing it with a description of various types of areas (e.g., material handling sites or sites used for the storage and maintenance of material handling equipment) that are directly related to an industrial process and to industrial facilities identified by the EPA.

As commenter s acknowledged, the EPA exercised its discretion to further clarify the term “associated with industrial activity” in a variety of ways, such as excluding wholesale, retail, service, and commercial activities. 55 Fed. Reg. at
48,007. The EPA again expanded upon what is and is not included in the term in creating and interpreting a “no exposure” exemption for industrial facilities . 64 Fed. Reg. 68,786 (Dec. 8, 1999). For example, t he EPA decided that final products, such as cars, can be exposed outdoors and not trigger the industrial stormwater permitting requirements, whereas a manufacturing facility that left “intermediate products” outdoors, such as car engine parts, would not qu alify for the “no exposure” exemption and would need to obtain an industrial stormwater permit. Id.

The definition of “storm water discharge associated with industrial activity” in the Phase I rule includes stormwater discharges from facilities identified in the rule by standard industrial classification or “SIC” code at 40 CFR 122.26(b)(14).Chapter 1 : Response Essay s

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Storm water Discharges from Logging Roads 1- 15 

### Whereas t he Phase I regulation included in the definition of that term SIC code 24 (Lumber and Wood Products) which includes 2411 (logging), the Agency also exercised its discretion to specif y in the Phase I rule that the term does not include discharges from facilities or activities excluded from the NPDES program under other parts of the EPA’s regulations, including the Silvicultural Rule. As discussed above, the EPA had previously specified under the Silvicultural Rule which silvicultural discharges were to be included in the NPDES program (40 CFR 122.27). The EPA intended to regulate those same “silvicultural point source[s]” under the Phase I rule (i.e., rock crushing, gravel washing, log sorting, and log storage facilities) and to exclude from the Phase I regulation stormwater runoff from other silvicultural activities.

The EPA believes that these four activities named in the Silvicultural Rule and referenced in the Phase I rule reasonably

defines the types of activities Congress intended to be regulated as industrial: those activities “directly related to manufacturing, processing or raw materials storage areas at an industrial plant.” These activities can generate the types of pollutants the EPA thinks Congress had in mind in directing the regulation of stormwater associated with industrial activity. Log sorting and storage activities, for instance, involve a variety of materials that can come into contact with

s tormwater discharges, such as coarse saw dust, other wood waste material, petroleum and other products for equipment maintenance (fuels, motor oils, hydraulic oils, lubricant fluids, brake fluids, and antifreeze), herbicides, pesticides, and fertilizers, and material handling equipment (forklifts, loaders, vehicles, chippers, debarkers, cranes, etc.)

Final NPDES Storm Water Multi

- Sector General Permit for Industrial Activities
, 60 FR 50804 , 50835 (Sept. 29, 1995.) Rock crushing and gravel washing involve materials such as fuels, solvents, detergents, and plastic pellets; finished materials such as metallic products; fertilizers; pesticides; and waste products such as ashes, slag, and sludg e. Id. at

50920.

In contrast, t his country’s sprawling network of logging roads, owned and managed by shifting patchworks of different
entities, are not “directly related to manufacturing, processing or raw materials storage areas at an industrial plant.” Vol. 132 Cong. Rec. H10932, H10936 (daily ed. October 15, 1986); Vol. 133 Cong. Rec. H176 (daily ed. January 8, 1987 ). In view of the legislative history, the EPA does not believe that this vast system of roads, traversing hundreds of millions

of acres o f federal public land, state and local public land, county land, tribal land, private company

- owned land, and family

- owned land are the types of operations Congress intended the EPA to regulate as “industrial.”

Finally , the mere fact that logging and oth er silvicultural activities are sometimes referred to in common parlance as
“industrial” does not mean that the EPA is required to include those activities in its definition of “associated with industrial activity” for purposes of stormwater permitting req uirements. Nor does the definition of four activities related to logging as “associated with industrial activity” mean that logging roads themselves must be encompassed by that

definition as well. In response to the comment that it makes no sense for the f our specified activities to be defined as industrial while the larger process they serve is not , and that logging is the only reason that rock crushing, gravel washing, log sorting, and log storage take place
, the EPA disagrees. The fact that the Agency re gulates certain aspects ofChapter 1 : Response Essay s

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Storm water Discharges from Logging Roads 1- 16 

### an activity does not mean it must regulate every aspect. The only reason that logs are harvested is so that they can be put to some other use, which the EPA may or may not characterize as industrial. For example, the Agency also does not include in its definition of “associated with industrial activity” many of the end uses of harvested lumber, such as its installation in a house as shelving or other furniture. The EPA includes the manufacture of kitchen cabinets in its

definition of “associated with industrial activity,” but not the installation of cabinets into kitchens, which is part of the larger process of kitchen cabinetry and undisputedly the only reason kitchen cabinets are manufactured. Again, just

because the EPA defines certain parts of a process as industrial activity does not mean that everything related to that process must be industrial.

The EPA discussed immediate access roads in the preamble to the proposed and final clarification rules . As discussed in these prea mbles, t he supplemental language in the Phase I rule also includes the term “immediate access road.” The EPA considers “immediate access roads” to refer to any type of road that is exclusively or primarily dedicated for use by the industrial facility. See 55 Fed. Reg. 47990, 48009 (Nov. 16, 1990). These “immediate access roads” do not include public access roads that are state, county, or federal roads such as highways or Bureau of L and Management roads which happen to be used by the facility. See id. The Phase I regulation defines the term “storm water discharge associated with industrial activity” to include stormwater discharges from facilities identified in the rule by standard

in dustrial classification or “SIC” code at 40 CFR 122.26(b)(14). The Phase I regulation included in the definition of that term SIC code 24 (Lumber and Wood Products) which includes 2411 (logging), but the Agency also had specified in the

Phase I rule that t he term does not include discharges from facilities or activities excluded from the NPDES program under other parts of the EPA’s regulations, including the Silvicultural Rule. The EPA had previously specified under the

Silvicultural Rule which silvicultura l discharges were to be included in the NPDES program (40 CFR 122.27). The EPA intended to regulate those same “silvicultural point source[s]” under the Phase I rule (i.e., rock crushing, gravel washing, log sorting, and log storage facilities) and to exclude from the Phase I regulation stormwater runoff from other silvicultural activities. For the “silvicultural point source[s]” (i.e., rock crushing, gravel washing, log sorting, and log storage facilities) regulated under the Phase I rule, the term “storm water discharge associated with industrial activity” includes “immediate access roads” (40 CFR 122.26(b)(14)(ii)). Unlike “immediate access roads” associated with industrial facilities, many logging roads have multiple uses, including recreation and genera l transportation, and commonly extend over long distances (i.e.; may not provide “immediate access” to an industrial site). The intent of the EPA in this rulemaking is that the NPDES program requirements be implemented with regard to “immediate access road s” in the same way they were implemented prior to the decision by the Ninth Circuit.Chapter 1 : Response Essay s

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Storm water Discharges from Logging Roads 1- 17 

### S ee also the preamble of the final rule. See also the brief on petitions for writs of certiorari to the United States Court of Appeals for the Ninth Circuit ( Brief for Un ited States as Amicus Curiae, NEDC v. Brown , 640 F.3d 1063 (9 th 

### Cir. 2011) ) and

the brief on writ of certiorari to the United States Court of Appeals for the Ninth Circuit ( Brief for United States as
Amicus Curiae Supporting Petitioners, NEDC v. Brown , 640 F.3d 1063 (9 th 

### Cir. 2011) ).

For comments on the categorization of logging roads, forest roads, or silvicultural activities as either point sources or
nonpoint sources, see Response 7.Chapter 1 : Response Essay s

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Storm water Discharges from Logging Roads 1- 18 

### Response 9 : Comments on the addition of language to Phase I stormwa ter regulations on “rock crushing, gravel washing, log sorting, and log storage” and on the meaning and scope of these terms

The EPA received comment requesting clarification on the addition of language to Phase I stormwater regulations on “rock crushing, gravel washing, log sorting, and log storage.” Some commenters asserted that the EPA was creating new requirements with the addition of this language. The EPA disagrees. As expl ained in the preamble of the final rule, the EPA had previously specified under the Silvicultural Rule (40 CFR 122.27) which silvicultural discharges were to be included in the NPDES program (i.e., rock crushing, gravel washing, log sorting, and log storage facilities). The EPA intended to regulate those same “silvicultural point source[s]” under the Phase I rule and to exclude from the Phase I regulation stormwater runoff from other silvicultural activities. The revisions clarify that for the purposes of d efining stormwater discharges associated with industrial activity, the only activities under SIC code 2411 that are “industrial” are rock crushing, gravel washing, log sorting, and log storage. Thus, t his revision does not remove any existing
exemptions or create new requirements but rather clarifies existing requirements.

The EPA also received comment on the meaning of the terms “rock crushing, gravel washing, log sorting, and log storage” and suggesting that the EPA define or further explain them. Some co mmenters were unsure of the meaning or scope of these terms , especially as they relate to temporary or incidental log stacking, sorting, or storage that may occur during harvesting operations. Such commenters expressed concern that previously unregulated t emporary or incidental staging areas would inadvertently be brought into the Phase I stormwater regulations or that the inclusion of the terms “rock crushing, gravel washing, log sorting, or log storage” in the revised Phase I regulatory language would be applied inappropriately to legitimate ly non

- industrial silvicultural activities that commonly occur in the field at a harvesting site.

S ome commenters suggested that the EPA include language in the final rule or preamble reiterating the interpretations

tha t the EPA set forth in issuing the 1995 Multi

- Sector General Permit for Stormwater Discharges Associated with Industrial Activity, in which the Agency discussed that discharges from “harvesting operations”, “incidental stacking” and “temporary storage” do not require coverage.

The EPA disagrees that additional language is necessary. The terms “rock crushing, gravel washing, log sorting, and log storage” facilities are already defined at 40 CFR 122.27(b)(2)

- (3)

. The EPA believes that the existing definitions sufficiently convey the meaning and scope of these terms , which the regulated community is familiar with and has been guided by for over two decades, and additional language to clarify them is unnecessary. Therefore, the EPA is not changing the existing definitions or including additional language in the final rule.

The EPA also received comment questioning why the distinction was made between log hau ling and the four activities that are included in the proposed rule (rock crushing, gravel washin g, log sorting, and log storage). See Response 13 andChapter 1 : Response Essay s

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Storm water Discharges from Logging Roads 1- 19 

### the preamble to today’s action. The EPA notes that the objective of today’s rule is to clarify existing requirements. The EPA is not creating new requirements or removing existing exemptions as part of this rulemaking.

See also Response 6 and Response 8.

The commenter asserts that log hauling facilities have no independent utility but rather serve to facilitate industrial logging activities and that if they are included then log hauling should also be included. The EPA notes that the Agency is not creating additional requirements as part of this rulemaking. Rather, the EPA is clarifying existing requirements . See the preamble to today’s action.

See also Response 6, Response 8, and Response 13

.Chapter 1 : Response Essay s

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Storm water Discharges from Logging Roads 1- 20 

### Response 1 0 : Comments asserting that the revision is substantive and not just a clarification and that it therefore
requires the EPA to conduct additional analy sis or consultations

The EPA received comment asserting that the revisions to Phase I stormwater regulations are substantive

. Similarly, the EPA also received comment asserting that the Agency is rolling back the Phase I stormwater regulations to reduce th e number of kinds of polluting activities that require NPDES permits. The commenter points to the decision of the Ninth Circuit court of appeals and asserts that the court held stormwater discharges from pipes, ditches, and channels along active, industrial logging roads requires NPDES permits under the existing NPDES permit regulations as written. These commenters asserted that the EPA must therefore analyze impacts and complete consultation requirements under the Endangered Species Act (ESA)

. The EPA also received comment asserting that the potential cost of the rule as proposed is significant.

The EPA disagrees with these comments. Today’s action neither create s nor removes either requirements or

ex emp tions . Rather, the action clarifies existing requirements and exemptions

. The EPA notes these interpretations were offered in the Agency’s briefs in the NEDC case. The final rule clarifies that, for the purposes of assessing whether stormwater discharges are “associated with industrial activity,” the only facilities under SIC code 2411 that are “industrial” are: rock crushing, gravel washing, log sorting, and log storage. This clarifies, contrary to the Ninth Circuit’ s decision in NEDC, that discharges of stormwater from silviculture facilities other than the four specifically named silviculture facilities identified above do not require an NPDES permit. This clarification is consistent with the EPA’s long

standing practice of not requiring NPDES permits for these discharges. It is also consistent wit h the Ninth Circuit’s

remand of the Phase II stormwater rules to EPA in Environmental Defense Center, Inc. v. US EPA , 344 F.3d 832
, 863 (9th Cir. 2003) to decide whether “402(p)(6) requires EPA to regulate forest roads” because if EPA was already regulatin g these discharges, the Ninth Circuit would have had no reason to remand the question to the Agency for consideration.

Because t he final rule clarifies existing regulations and does not impose new or remove existing regulatory
requirements , this action has no economic, public health, or environmental impacts , will not affect any species listed as endangered or threatened, and does not trigger any requirements under the ESA

.

See also the brief on petitions for writs of certiorari to the United States Court of Appeals for the Ninth Circuit ( Brief for
United States as Amicus Curiae, NEDC v. Brown , 640 F.3d 1063 (9 th 

### Cir. 2011) ) and the brief on writ of certiorari to the United States Court of Appeals for the Ninth Circuit ( Brief for United States as Amicus Curi ae Supporting Petitioners,

NEDC v. Brown , 640 F.3d 1063 (9 th 

### Cir. 2011) ).

See also Response 12 and Response 13.Chapter 1 : Response Essay s

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Storm water Discharges from Logging Roads 1- 21 

### Response 1 1 : Comments on the definitions of the terms logging road or forest road

The EPA received comments on the terms logging road and forest road and on their definitions

. Some commenters suggested that the EPA should define these terms. Similarly, some asserted that a definition of logging roads is required to clarify the intent of this revision. Others asserted that the EPA may eventually need to define these terms in the future if the Agency later creates new requirements for stormwater discharges from forest roads. Some of these

commenters described what they see as the differences between logging roads and forest roads and provided the EPA with potential approaches for distinguishing or defining them. The EPA has reviewed the se comments.

Others suggested that the EPA clarify that a n NPDES permit is not required for stormwater discharges from any forest road and not just from logging roads. See Response 6, Response 7, and Response 8.

The EPA is not defining either of these terms as part of this rulemaking. The EPA believes that it is unnecessary to define either forest road or logging road as part of this action

. The objective of thi s rulemaking is to clarify that stormwater discharges from logging roads do not constitute stormwater discharges associated with industrial activity and that a National Pollutant Discharge Elimination System (NPDES) permit is not required for these stormwa ter discharges. The EPA believes that the final language sufficiently clarifies the applicability of Phase I stormwater regulations to stormwater discharges from logging roads. The final language indicates explicitly which facilities are included in the

de finition of stormwater discharges “associated with industrial activity” (i.e., “Facilities classified within Standard Industrial Classification 24, Industry Group 241 that are rock crushing, gravel washing, log sorting, or log storage faciliti es operated i n connection with silvicultural activities”). Moreover, the final language further explains that “not included are all other types of silvicultural facilities.” This approach negates the need to define logging road or forest road as part of

this action.Chapter 1 : Response Essay s

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Storm water Discharges from Logging Roads 1- 22 

### Response 1 2 : Comments on the benefits of forests on water quality and aquatic life ; the impacts of stormwater discharges from logging roads, forest roads , and silviculture on water quality ; existing programs for addressing water quality impacts of stormwater discharges from logging roads, forest roads, and silviculture; and the documentation of

these topics

The EPA received comments describing the benefits that forests have on water quality and aquatic life and on the water quality impacts of stormwater discharges from logging roads, forest roads
, and silviculture as well as existing programs for addressing them. Some of these commenters provided the EPA with studies or references. The EPA thanks the

comment ers

. Some commenters asserted that the water quality impacts of stormwater discharges from logging roads

and other forest roads are well

- documented and suggested that the Agency should regulate them. Some further noted that the Agency received a report from one of its contractors in 2008 on tho se issues and asserted that the Agency already has all of the information it needs in order to regulate stormwater discharges from forest roads . Some commenters referred to this study as the Endicott report, in reference to Douglas Endicott, the principal investigator for the report. These commenters suggested that if information gaps remain, the Agency should specify what information is

needed and indicate on what schedule that information will be collected.

Other commenters noted that the notice of proposed rulemaking did not discuss the water quality impacts of stormwater discharges from forest roads and asserted that the EPA downplayed the i mportance of addressing these discharges

. Specifically, one of these commenters asked why the Endicott report was not specifically mentioned or cited in either the May 23 , 2012 Notice of Intent or the September 4 , 2012 proposal. Other commenters pointed to existing programs and suggested that a national regulation is unnecessary. Such commente rs asserted that state BMPs have been effective at protecting water quality and that, therefore, no need exists for a new federal regulatory role with respect to forest roads. Some asserted that neither BMPs; nor existing state, federal, or tribal programs; nor voluntary or nonpoint source control programs sufficiently protect water quality. Some commenters noted that the Agency has indicated that it continues to study these issues and asked about the objectives, methods, and timeline of this new study

and whether the EPA is collecting new d ata or just synthesizing existing information. Some of these commenters
asserted that the information the Agency already has is comprehensive and asked why the information previously gathered by the Agency or received fro m Endicott is inadequate to move forward with requiring permits for stormwater discharges from logging roads or forest roads or designating and regulating stormwater d ischarges from these roads. Similarly, others asked what specific additional information is still needed

. Some commenters provided references to

studies for the EPA to use as the Agency moves forward. Some requested that t he Agency should review and respond to

the studies included or cited in public comments and to fully explain the Agency’s c hoice whether or not to regulate

channeled discharges from logging road s or forest roads through the NPDES permit

. The EPA also received commentChapter 1 : Response Essay s

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Storm water Discharges from Logging Roads 1- 23 

### asserting that even if the EPA is only maintaining the status quo, that the EPA should still recognize the impacts associated with discharges from logging roads and forest roads

.

The EPA thanks commenters for their comments. T he EPA is not proposing new regulations for stormwater discharges from forest roads, including logging roads, at this tim e. While the EPA has not developed a specific schedule for addressing stormwater discharges from forest roads, the Agency notes that, in response to the partial remand under Environmental Defense Center, Inc. v. US EPA, 344 F.3d 832 (9th Cir. 2003), the Agency continues to review available information on the water quality impacts of stormwater discharges from forest roads, which include logging roads, as well as existing practices to control those discharges and is considering a range of options to address such discharges, which could include designating a subset of stormwater discharges from forest roads for regulation under the Agency’s section 402(p) rulemaking authority. The EPA believes that the broad range of flexible approaches under section 402(p)(6) may be well

- suited to address the complexity of forest road ownership, management, and use.

While engaged in a prior effort to gather information on the water quality impacts of stormwater discharges from forest roads, including logging roads, and the methods and programs for addressing these impacts, the EPA received
contractor support to assist the Agency in its information

- gathering efforts. In 2008, the EPA received a report from the

contractor prepared by Douglas Endicott of the Great Lakes Environme ntal Center who served as principal investigator of the effort. The EPA conducted a preliminary review of that report but has not yet conducted formal review of the report or finalized it for publication. However, the EPA notes that much of the information included in the May 23

Notice of Inte nt came directly from that report.

Similarly, the EPA is using much of the same information and studies gathered during the prior information gathering effort as the Agency continues to review available information on the water quality impacts of stormwater discharges

from logging and forest roads and existing practices to control those discharges . While the EPA anticipates including much of the information gathered during the previous study, the EPA is reviewing the l iterature to ensure that the
Agency is up to date . The EPA is also working with states, sister federal agencies, and other entities and reviewing descriptions of their programs to ensure that the Agency has the most accurate and current information on exis ting practices and programs for managing stormwater discharges from logging and forest roads.

The EPA thanks commenters who provided suggestions regarding an approach to logging roads under Section 402(p)(6)

or copies or citations of relevant studies. Thes e will be helpful as the EPA continues its data - and information

- gathering

efforts.Chapter 1 : Response Essay s

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Storm water Discharges from Logging Roads 1- 24 

### The EPA also received comment asserting that the review will be inconclusive given the complexities associated with

forest roads at a national scale and that forest owners and state regulatory authorities face uncertainty. The EPA believes that the Agency’s current efforts will provide sufficient data and information to move forward with decisions.

See also Response 13.Chapter 1 : Response Essay s

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Storm water Discharges from Logging Roads 1- 25 

### Response 1 3 : Comments on regulating stormwater discharges from forest roads or logging roads

The EPA received many comments on regulating stormwater discharges from forest roads or logging roads. Some commenters suggested that the Agency should not create additional requirements for stormwater discharges from logging roads or forest roads through this rulemaking. Some suggested that the Agency should not create additional requirements for stormwater discharges from forest roads or logging roads either now through this rulemaking or through a future rulemaking

. Some commenters asserted that any new regulations would create significant burden and suggested that the Agency evaluate impacts before proceeding with any new requirements. Similarly, some asserted that new regulations woul d make forest management difficult or would lead forest owners to develop their land or sell

their land to developers

. Some asserted that the EPA should not focus on logging or forest roads but rather on what they see as larger contributors of water quality impacts such as agriculture or grazing.

In contrast, o ther commenters asserted that the Agency should establish requirements for stormwater discharges for either forest roads or logging roads or both and discussed what they see as the minimum elements o f such regulations

. Some explained their rationale pointing to the water quality impacts of stormwater discharges from forest roads or logging roads. Some commenters described approaches or suggested provisions of potential new requirements. Some suggested that the Agency specify which discharges might be included in any future regulation (e.g., point sources only). Others suggested that the EPA consider a full range of potential approaches . Some suggested a permit approach. Some suggested regulations with federal oversight. Others suggested non

- regulatory approaches such as guidelines or third party certification programs

. Some commenters asked why the EPA is discussing stormwater discharges from forest roads and not just logging roads.

The EPA is not pro posing new regulations for stormwater discharges from forest roads or logging roads at this time.

Comments expressing support or criticism of any approaches toward regulating stormwater discharges from forest roads or logging roads, aside from whether logg ing roads should be regulated through the industrial stormwater
permitting program, are outside the scope of today’s action and therefore do not require a response. The purpose of today’s rulemaking is to clarify that stormwater discharges from logging roads do not constitute stormwater discharges associated with industrial activity and that a National Pollutant Discharge Elimination System (NPDES) permit is not required for these stormwater discharges

. This action neither creates nor removes either requ irements or exemptions.
However, the EPA notes that , in response to the partial remand under Environmental Defense Center, Inc. v. US EPA , 344 F.3d 832 (9th Cir. 2003), the Agency continues to review available information on the water quality impacts of

st ormwater discharges from forest roads, which include logging roads, as well as existing practices to control those discharges and is considering a range of options to address such discharges, which could include designating a subset of stormwater discharges from forest roads for regulation under the Agency’s section 402(p) rulemaking authority. The EPAChapter 1 : Response Essay s

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Storm water Discharges from Logging Roads 1- 26 

### believes that the broad range of flexible approaches under section 402(p)(6) may be well

- suited to address the complexity of forest road ownership, managemen t, and use. The EPA intends to present information about best practices and programs for managing logging road discharges, and identify any gaps in its data, as part of any proposed rulemaking it may undertake in the future that might involve logging road s. In the meantime, it continues to work on compiling and ana lyzing the most up to date data, including helpful information that commenters submitted as part of their response to today’s rulemaking.

See also Response 12.Chapter 1 : Response Essay s

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Storm water Discharges from Logging Roads 1- 27 

### Response 1 4 : Comments assert ing that the EPA should provide funding to states

The EPA received comments asserting that the Agency should provide funding to states to support their implementation of state BMP programs. Such commenters encouraged the EPA to apply its section 319 author ities more broadly to provide funding assistance to state forestry agencies.

The EPA has reviewed the se comments. The EPA is not making any changes to funding mechanisms under its section 319 authority as part of this rulemaking . The objective of this rul emaking is to clarify that stormwater discharges from logging roads do not constitute stormwater discharges associated with industrial activity and that a National Pollutant Discharge Elimination System (NPDES) permit is not required for these stormwater d ischarges

.

The EPA also notes that Section 319 already authorizes the use of grant funding aimed at addressing silvicultural best management practices and that many states are utilizing Section 319 funds to develop forestry BMP education, implementation, and effectiveness programs as well as cost

- share funds for the installation of structural BMPs such as bridge mats and culverts.Chapter 1 : Response Essay s

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Storm water Discharges from Logging Roads 1- 28 

### Response 1 5 : Introductions, salutations, r eferences , journal articles, studies, reports , background or descriptive

informat ion , and other t ext

The EPA has reviewed all comment letters and responded to the comments received on the proposed rule. In addition to
substantive comments, comment letters also included such text as introductions, salutations, journal articles, studies, reports, background or descriptive information, descriptions of the individuals or organizations submitting comments
, their programs, best management practices (BMPs), other descriptive text

. The EPA a lso received information from commenters describing the programs and BMPs of other entities (e.g., states and federal agencies). The EPA has

reviewed the information provided by commenters and notes that the Agency has responded to all substantive

comments related to the final rule revision

. See also Response 12.

The EPA also thanks commenters who provided studies, articles, or references. These will be helpful to the Agency as it

continues its data

- gathering efforts and considers options to address discharges from logging roads

.Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 

# Chapter 2: Individual Comments and ResponsesResponse t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 

# Issue Category 1: General Statement of Support

Pages 2-1 to 2

- 31

Response to Public Comments

Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads

November 30, 2012

Docket #: EPA

- HQ -OW- 2012

- 0195Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 1 

# 1

. GENERAL STATEMENT OF SUPPORT

Comment ID 0185

- A1.001.002

Author Name: Dessecker Dan Organization: Ruffed Grouse Society Issue Category: 1
The EPA is to be commended for proposing to explicitly delineate that stormwater discharges from forest roads are not industrial discharges. The recent decision by the Ninth Circuit Court that these discharges are indeed "associated with industrial activ ity" has needlessly and substanti ally complicated the opportunity for industrial and nonindustrial forest landowners to practice sound forest stewardship. The proposed EPA action will help clarify the responsibilities of forest landowners as they utilize existing and new forest
roads to f acilitate forest management activities.

Response Please refer to Response 1. Refer also to Response 8.



# Comment ID 0185

- A1.001.004

Author Name: Dessecker Dan Organization: Ruffed Grouse Society Issue Category: 1 Excessive regulatory oversight of stormwater discharges from forest roads will diminish the likelihood that these landowners will initiate the active forest management required to sustain wildlife of young forest habitats. Therefore, the Ruffed Grouse Society supp orts the EPA's proposal to clarify that no NPDES permit is required to address stormwater discharges from forest roads.

Response Please refer to Response 1. Refer also to Response 13.



# Comment ID 0188

- A1.001.002

Author Name: Koehn Steven Organization: Maryland Department of Natural Resources (MD DNR) Issue Category: 1 We fully support EPA's proposal to modify 40 CFR 122.26 in order to clarify that, where logging roads provide access to silvi cultural activities, they do not constitute "immediate access" to an i ndustrial activity, except for access to facilities previously identified as "rock crushing, gravel washing, log sorting or log storage." This clarification codifies a long

- standing regulatory decision concerning the silvicultural activities exempted from the requirements of a National Pollutant Discharge Elimination System (NPDES) permit.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 2 Response Please refer to Response 1.



# Comment ID 0189

- A1.001.002

Author Name: Morgan Charlie Organization: Mississippi Forestry Commission (MS FC) Issue Category: 1 We fully support EPA's proposal to modify 40 CFR 122.26 in order to clarify that, where logging roads provide access to silvi cultural activities, they do not constitute "immediate access" to an industrial activity, except for access to f acilities previously identified as "rock crushing, gravel washing, log sorting or log storage." This clarification codifies a long

- standing regulatory decision concerning the silvicultural activities exempted from the requirements of a National Pollutant Discharge Elimination System (NPDES) permit.

Response Please refer to Response 1.



# Comment ID 0190

- A1.001.002

Author Name: Brian S. Keiling Howard M. Persinger, Jr. Organization: West Virginia Land and Mineral Owners Association (WVLMOA) Issue Category: 1 Our members concur with the opinion expressed in 1976 by the EPA that state best management practices (BMPs) are the most eff ective method of addressing potential water quality impacts from forest roads and forest management activities.

Response Please refer to Response 1.



# Comment ID 0191

- A1.001.002

Author Name: Garrison, III Carl Organization: Virginia Department of Forestry (VA DF) Issue Category: 1 We fully support EPA's proposal to modify 40 CFR 122.26 in order to clarify that, where logging roads provide access to silvicultural activities, they do not constitute "immediate access" to an industrial activity, except for access to facilities previously i dentified as "rock crushing, gravel washing, log sorting or log storage." This clarification codifies a long

- standing regulatory decision concerning the silvicultural activities exempted from the requirements of a National Pollutant Discharge Elimination System (NPDES) permit.

Response Please refer to Response 1.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 3 

# Commen t ID 0192

- A1.001.002

Author Name: Casey Linda Organization: Alabama Forestry Commission (AL FC) Issue Category: 1 We fully support EPA's proposal to modify 40 CFR 122.26 in order to clarify that, where logging roads provide access to srlvi cultural activities, they do not constitute "immediate access" to an industrial activity, except for access to facilities previously i dentified as "rock crushing, gravel washing, log sorting or log storage." This clarification codifies a long

- standing regulatory de cision concerning the silvicultural activities exempted from the requirements of a National Pollutant Discharge Elimination System (NPDES) permit.

Response Please refer to Response 1.



# Comment ID 0194

- A1.001.002

Author Name: O'Rourke, Sr. Thomas Organization: Yurok Tribe Issue Category: 1 The Yurok Tribe supports EPA's decision to clarify that stormwater discharges from logging roads are not discharges "associat ed with industrial activity" and do not require an NPDES permit.

Response
Please refer to Response 1.



# Comment ID 0194

- A1.001.004

Author Name: O'Rourke, Sr. Thomas Organization: Yurok Tribe Issue Category: 1 For this reason, the Tribe supports EPA's decision to revise 40 CFR 122.26(b)(14)(ii) to clarify that "industrial activity" requiring an NPDES permit does not include stormwater runoff discharges from the construction, maintenance, or use of roads associated wit h silvicultural activities, or from the roads themselves.

Response Please refer to Response 1.



# Comment ID 0195

- A1.001.001Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 4 Author Name: Leonard Young Ted Sturdevant Organization: State of Washington Department of Natural Resources and State of Washington Department of Ecology (WA DNR and Ecology) Issue Category: 1 We concur with EPA's approach of modifying its stormwater regulations to clarify that a National Pollutant Discharge Elimination System (NPDES) Permit is not required for stormwater discharges from logging roads, with the exception of existing requiremen ts for rock crushing, gravel washi ng, log sorting or log storage facilities.

Response Please refer to Response 1.



# Comment ID 0196

- A1.001.002

Author Name: Dye Charles Organization: West Virginia Division of Forestry (WVDOF) Issue Category: 1 We fully support EPA's proposal to modify 40 CFR 122.26 in order to clarify that, where logging roads provide access to silvicultural activities, they do not constitute "immediate access" to an industrial activity, except for access to facilities previously i dentified as "rock crushing, gra vel washing, log sorting or log storage." This clarification codifies a long

- standing regulatory decision concerning the silvicultural activities exempted from the requirements of a National Pollutant Discharge Elimination System (NPDES) permit.

Response Please refer to Response 1.



# Comment ID 0197

- A1.001.002

Author Name: Bonnet Michelle Organization: Alaska Department of Environmental Conservation (AK DEC) Issue Category: 1 DEC supports EPA's assertion that stormwater discharges from logging roads are not stormwater discharges associated with an industrial activity requiring Clean Water Act (CWA) Section 402 National Pollutant Discharge Elimination System permits.

Response Please refer to Response 1.



# Comment ID 0198

- A1.001.002

Author Name: Dructor Daniel Organization: American Loggers Council (ALC)Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 5 Issue Category: 1 The American Loggers Council agrees with and supports EPA's objective not to require National Pollutant Discharge Elimination System ("NPDES") permits for stormwater discharges from forest roads.

Response Please refer to Response 1.



# Comment ID 0199

- A1.001.002

Author Name: Owen Wib Organization: North Carolina Department of Agriculture and Consumer Services (NC DACS) Issue Category: 1 The North Carolina Forest Service supports the USEPA proposal to modify federal rule 40 CFR 122.26 in order to clarify that t he NPDES program requirements be implemented with regard to "immediate access roads" in the same way they were implemented prior to the Ninth Circuit decision. We support the notion that, unlike 'immediate access roads' that are associated with industrial f acilities, many logging and forest roads have multiple uses, including recreation and general transportation, and commonly extend over long distances. Permitting through the NPDES should only be required with regards to access roads to the previously identified "rock crushing , gravel washing, log sorting or log storage" facilities.

In addition, the North Carolina Attorney General h as agreed to sign

- on as a party of an Amicus memo that was prepared by the State of Arkansas, regarding the outcomes of the litigation that resulted in the US EPA decision to pursue making this proposed revision to the NPDES regulations.

Response
Plea se refer to Response 1. Refer also to Response 15.



# Comment ID 0199

- A2.001.002

Author Name: Owen Wib Organization: North Carolina Department of Agriculture and Consumer Services (NC DACS) Issue Category: 1 We support the USEP A's proposal to revise the federal Phase

- ! NPDES regulations to specify that stormwater discharges from logging roads are not stormwater discharges "associated with industrial activity." We also support USEP A's effort to pursue flexible
,

non

- regulatory options for managing stor mwater discharges from forest roads. Over the 40 year history of the Clean Water Act, silvicultural nonpoint sources of potential pollution have been appropriately managed by delegation to states and subsequent enactment of state

- based regulations and/or d evelopment of forestry best management practice (BMP) programs.

Response Please refer to Response 1. Refer also to Response 13.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 6 

# Comment ID 0200

- A1.001.002

Author Name: Crawford Cam Organization: South Carolina Forestry Association (SCFA) Issue Category: 1 SCFA agrees with and supports EPA's objective not to require National Pollutant Discharge Elimination System ("NPDES") permit s for stormwater discharges from forest roads.

Response Please refer to Response 1.



# Comment ID 0201

- A1.001.002

Author Name: Vandersteen C.A. Organization: The Louisiana Forestry Association (LFA) Issue Category: 1 LFA agrees with the EPA's objective not to require National Pollutant Discharge Elimination Systems ("NPDES") permits for

stormwater discharges from forest roads. The proposed revisions to the Phase I stormwater rule are an appropriate proposed response to
the NEDC v. Brown decision.

Response Please refer to Response 1.



# Comment ID 0202

- A1.001.002

Author Name: Slocum, Jr. Robert Organization: NC Forestry Association (NCFA) Issue Category: 1 The NCFA agrees with and supports EPA's objective not to require National Pollutant Discharge Elimination System ("NPDES") permits for stormwater discharges from forest roads.

Re sponse Please refer to Response 1.



# Comment ID 0203

- A1.001.003

Author Name: Partin Tom Organization: American Forest Resource Council (AFRC)Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 7 Issue Category: 1 AFRC agrees with and supports EPA's objective in this rulemaking proposal not to require NPDES permits for stormwater dischar ges from forest roads. The proposed revisions to the Phase I stormwater rule are an appropriate proposed response to the Ninth C ircuit Court of Appeals NEDC v. Brown decision.

Response Please refer to Response 1.



# Comment ID 0204

- A1.001.002

Author Name: Harrelson, Sr. David Organization: St. Joe Timberland Company of Delaware, LLC Issue Category: 1
St. Joe Timberland agrees with and supports EPA's objective not to require National Pollutant Discharge Elimination System ("NPDES") permits for stormwater discharges from forest roads

Response Please refer to Response 1.



# Comment ID 0205

- A1.001.003

Author Name: Schu ler Galen Organization: Green Diamond Resource Company Issue Category: 1 Green Diamond agrees with and supports EPA's objective not to require NPDES permits for stormwater discharges from forest roa ds. The proposed revisions to the Phase I stormwater ru le are an appropriate response to the NEDC v. Brown decision because forest roads are not part of or appurtenant to industrial facilities, as EPA has recognized for over thirty years.

Response Please refer to Response 1.



# Comment ID 0206

- A1.001.002

Author Name: Beardsley Michael Organization: Professional Logging Contractors of Maine (PLCM) Issue Category: 1 We applaud EPA's continued support in the NOI for its 1976 determination that water quality impacts from forest roads, and fo restry generall y, are best addressed through state

- adopted best management practices (BMPs).Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 8 Response Please refer to Response 1. Refer also to Response 13.



# Comment ID 0207

- A1.001.002

Author Name: Hufford Ronald Organization: Texas Forestry Association (TFA) Issue Category: 1 TFA agrees with and supports EPA's objective not to require National Pollutant Discharge Elimination System ("NPDES") permits for stormwater discharges from forest roads.

Response Please refer to Response 1.



# Comment ID 0208

- A1. 001.002

Author Name: Robertson Alan Organization: Pfalzerwald Tree Farm Issue Category: 1 As a family forest owner from Sheffield, Vermont, I agree with and supports EPA's objective not to require National Pollutant Discharge Elimination System (NPDES) permits for stormwater discharges from forest roads.

Response Please refer to Response 1.



# Comment ID 0209

- A1.001.002

Author Name: Qualman Robert Organization: Qualman Tree Farm Issue Category: 1 As a family forest owner from Brentwood, Tennessee I agree with and supports EPA's objective not to require National Pollutant Discharge Elimination System (NPDES) permits for stormwater discharges from forest roads.

Response Please refer to Response 1.



# Comment ID 0210

- A1.001.002Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 9 Author Name: Hulka Bryan Organization: Slade Creek LLC Issue Category: 1 As a family forest owner from Hyde County, North Carolina, I agree with and supports EPA's objective not to require National Pollutant Discharge Elimination System (NPDES) permits for stormwater discharges from forest roads.

Response Please refer to Response 1.



# Comment ID 0211

- A1.001.003

Author Name: Lyskava Paul Organization: Pennsylvania Forest Products Association (PFPA) Issue Category: 1 PFPA agrees with and supports EPA's objective not to require National Pollutant Discharge Elimination System ("NPDES") permits for stormwater discharges from forest roads.

Response Please refer to Response 1.



# Comment ID 0212

- A1.001.002

Author Name: Hawkinson Deb Organization: Forest Resources Association Inc. (FRA) Issue Category: 1 The Forest Resources Association agrees with and supports EPA's objective not to require National Pollutant Discharge Elimina tion System ("NPDES") permits for stormwater discharges from forest roads.

Response Please refer to Response 1.



# Comment ID 0213

- A1.001.002

Author Name: Drechsel Russell Organization: Madison Paper Industries Issue Category: 1 Madison Paper Industries agrees with and supports EPA's objective not to require National Pollutant Discharge Elimination System ("NPDES") permits for stormwater discharges from forest roads.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 10 Response Please refer to Response 1.



# Comment ID 0214

- A1.001.002

Author Name: Bush J.R. Organization: Virginia Forest Products Association (VFPA) Issue Category: 1 VFPA agrees with and supports EPA's objective not to require National Pollutant Discharge Elimination System ("NPDES") permit s for stormwater discharges from forest roads.

Response Please refer to Response 1.



# Comment ID 0215

- A1.001.002

Author Name: ZumBahlen Bruce Organization: Z Acres Tree Farm Issue Category: 1 As a family forest owner from Cottage Grove, Minnesota who owns woodland in Wisconsin, I heartily agree with the EPA's decisi on to not require National Pollutant Discharge Elimination System (NPDES) permits for storm water discharges from forest roads.

Response Please refer to Response 1.



# Comment ID 0216.001.001

Author Name: Mundt L. Organization: Issue Category: 1 We do agree with the decision not to require clean water act permits for forest roads.

Response Please refer to Response 1.



# Comment ID 0218.001.001

Author Name: Boyd M.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 11 Organization: Issue Category: 1 As a professional forester I support the position that NPDES stormwater discharge permits are not required for forest roads.

Response Please refer to Response 1.



# Comment ID 0219

- A2.001.002

Author Name: Covar Zak Organization: Texas Commission on Environmental Quality (TX CEQ) Issue Category: 1
The TCEQ supports EPA's revision of the Phase I stormwater regulations to specify that stormwater discharges from logging roads a re not stormwater discharges "associated with industrial activity." The proposed revision would remove any obligation for an own er or operator of a logging road that has discharges of stormwater to waters of the United States to seek an NPDES permit under sec tion 402
of the Clean Water Act.

Response Please refer to Response 1.



# Comment ID 0220

- A1.001.002

Author Name: Lange Walter Organization: Lange Tree Farm Issue Category: 1 As a family forest owner from Swanton, Ohio and the 2010 Ohio Tree Farmer of the Year, I agree with and support EPA's objecti ve not to require National Pollutant Discharge Elimination System (NPDES) permits for storm water discharges from forest roads.

Response Please refer to Response 1.



# Comment ID 0221

- A1.001.002

Author Name: Stuber IV Daniel Organization: Forest2Market, Inc. Issue Category: 1 Forest2Market, Inc. agrees with and supports EPA's objective not to require National Pollutant Discharge Elimination System ("NPDES") permits for stormwater discharges from forest roads.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 12 Response Please refer to Response 1.



# Comment ID 0222

- A1.001.002

Author Name: Ryder Allan Organization: Timber Resource Group, Inc. (TRG) Issue Category: 1 Timber Resource Group agrees with and supports EPA's objective not to require National Pollutant Discharge Elimination System ("NPDES") permits for stormwater discharges from forest roads.

Response Please refer to Response 1.



# Comment ID 0223

- A1.001.002

Author Name: Braswell Max Organization: Arkansas Forestry Association (AFA) Issue Category: 1 AFA agrees with and supports EPA's objective not to require National Pollutant Discharge Elimination System ("NPDES") permits for stormwater discharges from forest roads.

Response Please refer to Response 1.



# Comment ID 0224

- A1.001.002

Author Name: Karels James Organization: Southern Group of State Foresters (SGSF)
Issue Ca tegory: 1 SGSF supports the intention of the proposed rule to clarify which silvicultural stormwater discharges are associated with an industrial activity. We agree with EPA that only four activities are industrial: rock crushing, gravel washing, log sort ing, and log storage facilities operated in conjunction with silvicultural activities.

SGSF also agrees with EPA that roads used for silvicultural activities are not "immediate access roads" associated with indus trial facilities, given that they have multiple uses, cross ownership boundaries, and can extend over long distances. We concur with EPA that natural runoff from forest roads, even when channeled through culverts and ditches is a nonpoint source, and that this propos ed revision
clarifies that a n NPDES permit is not required for stormwater discharges from logging roads.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 13 Response Please refer to Response 1. Refer also to Response 7 and Response 8.



# Comment ID 0225

- A1.001.002

Author Name: Bryant John Organization: American Forest Management (AFM) Issue Category: 1 I agree with and support EPA's objective not to - require National Pollutant Discharge Elimination,Systern ('ODES"), permits for stormwater discharges from forest roads

Response Please refer to Response 1.



# Comment ID 0226

- A1.001.002

Author Name: Bauer Robert Organization: Kentucky Forest Industries Association (KFIA) Issue Category: 1 KFIA agrees with and supports EPA's objective not to require National Pollutant Discharge Elimination System ("NPDES") pe rmits for stormwater discharges from forest roads.

Response Please refer to Response 1.



# Comment ID 0227

- A1.001.002

Author Name: Racliff Jr. J. Organization: Mississippi Forestry Association (MFA) Issue Category: 1 MFA agrees with and supports EPA's objective not to require National Pollutant Discharge Elimination System ("NPDES") permits for stormwater discharges from forest roads.

Response Please refer to Response 1.



# Comment ID 0228

- A1.001.002Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 14 Author Name: Johnson Andrew Organization: Graphic Packaging International (GPI) Issue Category: 1 GPI agrees with and supports EPA's objective not to require National Pollutant Discharge Elimination System ("NPDES") permits for stormwater discharges from forest roads.

Response Please refer to Response 1.



# Comment ID 0229

- A1.001.002

Author Name: C. Randy Dye Steven H. Gunderson Organization: Association of Clean Water Administrators (ACWA) and National Association of State Foresters (NASF) Issue Category: 1 Our organizations generally support EPA's proposed rule for the reasons outlined below.

NASF and ACWA recognize that a mismanaged road associated with logging activities can cause water quality issues. We acknowle dge that NPDES permits are effective for reducing point source pollution and achieving water quality standards. However, we suppo rt EPA's proposal that multi

- sector NPDES permits are not the most effective mechanism to control these dispersed sources nationally. <FN4> Based on our collective experience, we agree with EPA that a national requirement to issue NPDES permits to logging ro ads is not likely to be the most efficient way to measurably improve water quality or overall forest health.

We agree with EPA's proposal to clarify that EPA never intended for logging roads to be regulated as industrial facilities un der Phase I of
the s tormwater program. We support EPA's proposed revisions to 40 CFR 122.26(b)(14)(ii) to clarify that for the purposes of defini ng stormwater discharges associated with industrial activity, the only activities under Standard Industrial Classification (SIC) co de 2411 that would be defined as industrial are "rock crushing, gravel washing, log sorting and log storage". <FN5>

Further, we support EPA's proposal given that:

• Imposing a new unfunded mandate on state permitting authorities would strain limited st ate permitting resources by substantially increasing the multi

- sector NPDES program workload.
• A multi

- sector NPDES permitting approach would constrain states' abilities to use a range of tools and practices more specifically focused on the highest priority problem areas and opportunities. • Even general permits - which can be relatively straightforward to develop - require states have sufficient resources to implement and maintain the general permit and authorizations under it; to effectively inspect, m onitor, and report on permittees, to offer compliance assistance, training, and outreach, and to conduct enforcement.
• National multi

- sector permitting requirements that add administrative costs and increased exposure to litigation could diminish many
la ndowners' commitment to owning and caring for working forests, and drive them towards less desirable land uses from a water q uality standpoint. EPA has acknowledged that forest landscapes are consistently associated with the nation's best water quality.

• Under state authorities, states may still decide to issue permits to manage adverse water quality impacts from these and othe r types of discharges, including those that may result from logging road construction/operation.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 15 In conclusion, CWA § 402(p) allows for a broad range of regulatory and non

- regulatory approaches to address stormwater discharges.

<FN4> Based on further data, or legal policy considerations, should EPA determine that NPDES permits are required, a general permit approach likely would garner state support as a resource and environmentally efficient approach. <FN5> We note that legal questions such as whether logging roads are classified as "industrial activities" are pending Suprem e Court review in Decker v. NEDC (No. 11

- 338, certiorari granted 6/25/12).

Response Please refer to Response 1. Refer also to Response 13.



# Comment ID 0231

- A1.001.002

Author Name: Schnoor Candace Organization: John Deere Construction & Forestry Division Issue Category: 1 Deere agrees with and supports EPA's objective not to require National Pollutant Discharge Elimination System ("NPDES") permits for stormwater discharges from forest roads.

Response Please refer to Response 1.



# Comment ID 0232

- A1.001.002

Author Name: Wright Vance Organization: Wright Forestry LLC Issue Category: 1 As a family forest owner from Blackridge, Virginia, I agree with and supports EPA's objective not to require National Polluta nt Discharge Elimination System (NPDES) permits for stormwater discharges fro m forest roads.

Response Please refer to Response 1.



# Comment ID 0233

- A1.001.002

Author Name: Blosser Mike Organization: Louisiana Pacific Corporation (LP) Issue Category: 1 LP agrees with and supports EPA's objective not to require National Pollutant Discharge Elimination System ("NPDES") permits forChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 16 stormwater discharges from forest roads

Response Please refer to Response 1.



# Comment ID 0234

- A1.001.002

Author Name: Martin Tom Organization: American Forest Foundation (AFF) Issue Category: 1 The American Forest Foundation agrees with and supports EPA's objective not to require National Pollutant Discharge Eliminati on System (NPDES) permits for stormwater discharges from forest roads.

Response Please refer to Response 1.



# Comment ID 0235

- A2.001.002

Author Name: Krancer Michael Organization: Pennsylvania Department of Environmental Protection (PA DEP) Issue Category: 1 The Pennsylvania Department of Environmental Protection (DEP) supports EPA's conclusion that stormwater discharges from forest roads, including logging roads, should be evaluated under section 402(p)(6) of the Clean Water Act which allows for a broad r ange of flexible approaches that are better suited for addressing forest road ownership, management, and use, and supports a state

- based regulatory approach when necessary.

Response Please refer to Response 1 and Response 13.



# Comment ID 0235

- A2.001.004

Author Name: Krancer Michael Organization: Pennsylvania Department of Environmental Protection (PA DEP) Issue Category: 1 Further, we support EPA's proposal given that:

• Imposing a new unfunded mandate on state permitting authorities would continue to strain limited state permi tting resources by substantially increasing the multi

- sector NPDES program workload.
• A multi

- sector NPDES permitting approach would constrain states' abilities to use an existing range of tools and practices moreChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 17 specifically focused on the highest prio rity problem areas and opportunities. • Even general permits, which can be relatively straightforward to develop, requires that states have sufficient resources to implement and maintain the general permit and the authorizations under it.
• National mult i- sector permitting requirements that add administrative costs and increased exposure to litigation could diminish many landowners' commitment to owning and caring for working forests, and drive them towards less desirable land uses from a water quality

st andpoint. EPA has acknowledged that forest landscapes are consistently associated with the nation's best water quality.

Response Please refer to Response 1. Refer also to Response 13.



# Comment ID 0236

- A1.001.001

Author Name: Haller Greg Organization: Pacific Rivers Council (PRC) Issue Category: 1 Pacific Rivers Council appreciates the opportunity to comment on the U.S. Environmental Protection Agency's (EPA's) proposal to add language to existing regulations regarding discharges of stor mwater from silviculture activities. Pacific Rivers Council's (PRC's) mission is to protect and restore rivers, their watersheds, and the native species that depend on them. As such, we are commi tted to helping solve an ongoing problem related to the quali ty of surface waters nationwide: the delivery of sediment and other pollutants to streams and other water bodies from logging roads.

Response Please refer to Response 1 and Response 15.



# Comment ID 0237

- A1.001.002

Author Name: Peter J. Heide Cindy Mitchell Organization: Washington Forest Protection Association (WFPA) Issue Category: 1 WFPA agrees with and supports EPA's objective not to require National Pollutant Discharge Elimination System ("NPDES") permit s for stormwater discharges from forest roads.

Response Please refer to Response 1.



# Comment ID 0238

- A1.001.001

Author Name: Portman Carl Organization: Resource Development Council for Alaska (RDC)Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 18 Issue Category: 1 The Resource Development Council for Alaska, Inc. (RDC) is writing to support the Environmental Protection Agency's (EPA) assertion that stormwater discharges from logging roads are not stormwater discharges associated with an industrial activity requiring Clean Water Act (CWA) Section 402 National Pollutant Discharge Elimination System (NPDES) permits.

Response Please refer to Response 1.



# Comment ID 0239

- A2.001.001

Author Name: Douglas Denico Heather Parent Organization: Maine Department of Environmental Protection and Maine Forest Service (ME DEP and MFS) Issue Category: 1 The Maine Forest Service (MFS) and the Department of Environmental Protection (DEP) fully support EPA's proposal to modify 40 CFR 122.26 to clarify that, where logging roads provide access to silvicultural activities, they do not c onstitute "immediate access" to an industrial activity, except for access to facilities previously identified as "rock crushing, gravel washing, log sorting or log storage." This clarification codifies a long

- standing regulatory decision that silvicultural activities are exempted from the requirements of a National Pollutant Discharge Elimination System (NPDES) permit.

Response Please refer to Response 1.



# Comment ID 0240

- A1.001.002

Author Name: Baumhoff Oscar Organization: Baumhoff & Company, LLC Issue Category: 1 As a family forest owner from Centerville Idaho 83631, I agree with and supports EPA's objective not to require National Poll utant Discharge Elimination System (NPDES) permits for storm water discharges from forest roads.

Response Please refer to Response 1.



# Comment ID 0241

- A1.001.003

Author Name: Lear Monica Organization: Northeastern Area Association of State Foresters (NAASF) Issue Category: 1 Our organizations generally support EPA's proposed rule for the reasons outlined below.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 19 NASF and ACWA recognize that a mismanaged road associated with logging activities can cause water quality issues. We acknowle dge that NPDES permits are effective for reducing point source pollution and achieving water quality standards. However, we support EPA's proposal that multi

- sector NPDES permits are not the most effective mechanism to control these dispersed sources nationally. <FN4> Based on our collective expe rience, we agree with EPA that a national requirement to issue NPDES permits to logging roads is not likely to be the most efficient way to measurably improve water quality or overall forest health.

We agree with EPA's proposal to clarify that EPA never intended for logging roads to be regulated as industrial facilities un der Phase I of the stormwater program. We support EPA's proposed revisions to 40 CFR 122.26(b)(14)(ii) to clarify that for the purp oses of defining stormwater discharges associated with industrial activity, the only activities under Standard Industrial Classification (SIC) code 2411 that would be defined as industrial are "rock crushing, gravel washing, log sorting and log storage". < FN5>

Further, we support EPA's proposal given that:

• Imposing a new unfunded mandate on state permitting authorities would strain limited state permitting resources by substant ially increasing the multi

- sector NPDES program workload.
• A multi

- secto r NPDES permitting approach would constrain states' abilities to use a range of tools and practices more specifically focused on the highest priority problem areas and opportunities. • Even general permits - which can be relatively straightforward to deve lop - require states have sufficient resources to implement and maintain the general permit and authorizations under it; to effectively inspect, monitor, and report on permittees, to offer compliance assistance, training, and outreach, and to conduct enfor cement. • National multi

- sector permitting requirements that add administrative costs and increased exposure to litigation could diminish many landowners' commitment to owning and caring for working forests, and drive them towards less desirable land uses from a water quality standpoint. EPA has acknowledged that forest landscapes are consistently associated with the nation's best water quality. • Under state authorities, states may still decide to issue permits to manage adverse water quality impacts fro m these and other types of discharges, including those that may result from logging road construction/operation.

In conclusion, CWA § 402(p) allows for a broad range of regulatory and non

- regulatory approaches to address stormwater discharges.

<FN4> B ased on further data, or legal policy considerations, should EPA determine that NPDES permits are required, a general permit approach likely would garner state support as a resource and environmentally efficient approach. <FN5> We note that legal questions such as whether logging roads are classified as "industrial activities" are pending Supreme Court review in Decker v. NEDC (No. 11

- 338, certiorari granted 6/25/12).

Response Please refer to Response 1.



# Comment ID 0242

- A1.001.002

Author Name: Garber Richard Organization: Boise Inc.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 20 Issue Category: 1 We applaud EPA's continued support for its 1976 determination that water quality affects from forest roads, and forestry gene rally, are best addressed through state

- adopted best mana gement practices (BMPs).

Response Please refer to Response 1.



# Comment ID 0242

- A1.001.005

Author Name: Garber Richard Organization: Boise Inc. Issue Category: 1 Boise agrees with the EPA's stated objective for the proposed rulemaking in 77 Fed. Reg. 53834, clarifying that silviculture activities are not point sources and, as such, these activities are exempt from NPDES stormwater permit requirements.

Response Please refer to Response 1.



# Comment ID 0243

- A1.001.002

Author Name: Tenny David Organization: National Alliance of Forest Owners (NAFO) Issue Category: 1 NAFO agrees with and supports EPA's objective not to require National Pollutant Discharge Elimination System ("NPDES") permit s for stormwater discharges from forest roads.

Response Please refer to Response 1.



# Comment ID 0244

- A1.001.002

Author Nam e: Carlson Eric Organization: Empire State Forest Products Association (ESFPA) Issue Category: 1 ESFPA agrees with and supports EPA's objective not to require National Pollutant Discharge Elimination System ("NPDES") permi ts for stormwater discharges from forest roads.

ResponseChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 21 Please refer to Response 1.



# Comment ID 0245

- A1.001.002

Author Name: Smalley Bryan Organization: Southeastern Lumber Manufacturers Assocation (SLMA) Issue Category: 1 SLMA agrees with EPA in this proposed rule that stormwater discharge from forest roads should not be required to obtain NPDES permits.

Response Please refer to Response 1.



# Comment ID 0246

- A1.001.002

Author Name: Gustafson Earl Organization: Wisconsin Paper Council (WPC) Issue Category: 1 The Wisconsin Paper Council supports EPA's decision to revise stormwater regulations in order to specify that a National Pollution Discharge Elimination System (NPDES) permit is not required for stormwater discharges from logging roads.

Response Please refer to Response 1.



# Comment ID 0247

- A1.001.002

Author Name: Geissler George Organization: Oklahoma Department of Agriculture, Food, and Forestry (OK DAFF) Issue Category: 1 We fully support EPA's proposal to modify its Phase I stormwater regulations at 40 CFR 122.26 in order to clarify that, where logging roads provide access to silvicultural activities, they do not constitute "immediate access" to an industrial activity, except for access to facilities previously identified as "rock crushing, gravel washing, log sorting or log storage." This clarification codifies a long

- standi ng regulatory decision concerning the silvicultural activities exempted from the requirements of a National Pollutant Discharge Elimination System (NPDES) permit.

Response Please refer to Response 1.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 22 

# Comment ID 0249

- A1.001.002

Author Name: Howe Paul Organization: Virginia Forestry Association (VFA) Issue Category: 1 VFA agrees with and supports EPA's objective not to require National Pollutant Discharge Elimination System (NPDES) permits f or stormwater discharges from forest roads. The proposed revisions to the Phase 1 stormwater rule are a most appropriate response t o the
NEDC v. Brown decision.

Response Please refer to Response 1.



# Comment ID 0250

- A1.001.002

Author Name: Daugherty Peter Organization: Oregon Department of Forestry (OR DF) Issue Category: 1 We support the Environmental Protection Agency's (EPA's) proposal to revise its Phase I stormwater regulations to clarify that stormwater discharges from logging roads do not constitute discharges associated with industrial activity, and that a National Pollutant Discharge Elimination System (NPDES) perm it is not required. We also agree that the proposed revision clarifies EPA's long

- standing interpretation of the stormwater discharge rules to exclude forest road runoff from NPDES permitting requirements. We also su pport the EPA's approach to clarificatio n. By modifying the definition of "stormwater discharge associated with industrial activity" (40 C.F.R. § 122.26(b) (14) (ii)), the EPA states affirmatively what discharges are associated with industrial activity, rather than tryin g to exclude a
subset of discharges by reference.

Response Please refer to Response 1.



# Comment ID 0250

- A1.001.007

Author Name: Daugherty Peter Organization: Oregon Department of Forestry (OR DF) Issue Category: 1 In closing, we support the proposed revision to clarify that stormwater discharges from logging roads do not require a permit. The proposed rule change is a proper first step for General, Oregon Department of Justice Forester, Oregon Department of Forestry eputy Forester, Oregon Department of Forestry Chief, Or egon Department of Forestry , Environmental Quality headdressing the Ninth Circuit Court's erroneous decision. If the EPA decides to pursue additional rulemaking in this area, Oregon will welcome the opportun ity to participate fully in that process in orde r to ensure that any approach adopted is practical and effective.

ResponseChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 23 Please refer to Response 1.



# Comment ID 0251

- A1.001.002

Author Name: Keough Shawn Organization: Associated Logging Contractors of Idaho (ALC

- Idaho) Issue Category: 1
The ALC

- Idaho agrees with and supports EPA's objective not to require National Pollutant Discharge Elimination System ("NPDES") permits for stormwater discharges from forest roads.

Response Please refer to Response 1.



# Comment ID 0252

- A1.001.003

Author Name: Brandt Wayne Organization: Minnesota Forest Industries (MFI) Issue Category: 1 MFI supports EPA's objective in this rulemaking proposal not to require NPDES permits for stormwater discharges from forest r oads.

Response
Please refer to Response 1.



# Comment ID 0253

- A1.001.002

Author Name: Gustafson Earl Organization: Wisconsin Paper Council (WPC) Issue Category: 1 The WPC supports EPA's objective to clarify that National Pollutant Discharge Elimination System (NPDES) permits are not required for stormwater dischargers from forest roads, contrary to the finding of the Ninth Circuit in NEDC v Brown. The WPC shares th e perspective of the National Governors Association, 31 state Attorneys General, the National Association of Counties, Na tional Alliance of Forest Owners, other landowners, forest products companies, state forestry associations, academics and other stakeholders that the Ninth Circuit's decision in NEDC v Brown is in error, unnecessary and inappropriate.

Response
Please refer to Response 1.



# Comment ID 0254

- A1.001.002Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 24 Author Name: Lynch Robert Organization: Irrigation & Electrical Districts Association of Arizona (IEDAA) Issue Category: 1 We commend EPA for its effort to clarify that it never intended that forest roads used by logging companies, because they hav e drainage ditches on the side of them to carry off rainwater, should become subjects of the NPDES program.

Response Please refer to Response 1. Refer also to the preamble to today's rule.



# Comment ID 0255

- A1.001.002

Author Name: Moon C. Organization: Issue Category: 1 As a consulting forester from Danville, Virginia, I agree with and support EPA's objective not to require National Pollutant Discharge Elimination System (NPDES) permits for stormwater discharges from forest roads.

Response Please refer to Response 1.



# Comment ID 0256

- A1.001.002

Author Name: Bain J.P. Organization: Issue Category: 1
As a family forest owner from Ivor VA, I agree with and supports EPA's objective not to require National Pollutant Discharge Elimination System (NPDES) permits for stormwater discharges from forest roads.

Response Please refer to Response 1.



# Comment ID 0257

- A1.001.002

Author Name: Saloom Salem Organization: Saloom Properties, LLC Issue Category: 1 As a family forest owner from Brewton, Alabama whose Tree Farm is located in Conecuh County near Evergreen, Alabama I agree w ith and supports EPA's objective not to require National Pollutant Discharge Elimination System (NPDES) permits for storm water discharges from forest roads.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 25 Response Please refer to Response 1.



# Comment ID 0258

- A1.001.002

Author Name: McNitt Kristina Organization: Oregon Forest Industries Council (OFIC) Issue Category: 1 OFIC agrees with and supports EPA's objective not to require National Pollutant Discharge Elimination System ("NPDES") permit s for stormwater discharges from forest roads.

Response
Please refer to Response 1.



# Comment ID 0259

- A1.001.002

Author Name: Crapser Bill Organization: Council of Western State Foresters (CWSF) Issue Category: 1 The CWSF supports the intent of the proposed rulemaking to clarify that the EPA never intended to regulate logging roads as industrial
facilities under the Clean Water Act.

Response Please refer to Response 1.



# Comment ID 0259

- A1.001.004

Author Name: Crapser Bill Organization: Council of Western State Foresters (CWSF) Issue Category: 1 We support the EPA's desired effect of the proposed rule; to clarify that, contrary to the decision of the U.S. Court of Appe als for the Ninth Circuit in NEDC v. Brown, stormwater discharges associated with silvicultural activities (with the exception of r ock crushing, gravel washing, log sorting, and log storage which are already defined as silvicultural point sources) are not "industrial" a nd therefore do not require NPDES permits. <FN1>

<FN1> We note that legal questions implicated by this rulemaking, such as the Standard Industrial Classification of silviculture activities, are currently awaiting review by the Supreme Court of the United States in Decker v. NEDC (No. 11

‐ 338, certiorari granted 6/25/12).Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 26 Response Please refer to Response 1.



# Comment ID 0259

- A1.001.005

Author Name: Crapser Bill Organization: Council of Western State Foresters (CWSF) Issue Category: 1 The CWSF appreciates the efforts of the EPA to provide clarity that discharges from logging roads do not constitute industrial activity
under the Clean Water Act.

Response Please refer to Response 1.



# Comment ID 0261

- A1.001.003

Author Name: Imbergamo Bill Organization: Federal Forest Resource Coalition (FFRC) Issue Category: 1 FFRC agrees with and supports EPA's objective in this rulemaking proposal not to require NPDES permits for stormwater discharges from forest roads. The proposed revisions to the Phase I stormwater rule are an appropriate proposed response to the Ninth Ci rcuit Court of Appeals NEDC v. B rown decision.

Response Please refer to Response 1.



# Comment ID 0262

- A1.001.002

Author Name: Miller J. Organization: Vermont Law School Issue Category: 1 I believe these clarifications are a reasonable representation of the EPA's current regulations as well as the spirit of the Federal Water Pollution Control Act (also known as the Clean Water Act or CWA). I support the proposed revision and its application to road s used and maintained by the forest and logging industry.

Response
Plea se refer to Response 1.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 27 

# Comment ID 0262

- A1.001.004

Author Name: Miller J. Organization: Vermont Law School Issue Category: 1 I support this revision and clarification to the existing regulations for stormwater discharge and feel that it provides a l egitimate and accurate interpretation of the EPA's intentions. Additionally, I believe that this revision is true to the spirit of the Clea n Water Act and its legislative intent.

Response Please refer to Response 1.



# Comment ID 0263

- A1.001.002

Author Name: Schmidt David Organization: Schmidt Family Forest LLC Issue Category: 1 As a family forest owner living near Corvallis, Oregon, I agree with and strongly support EPA's objective not to require NPDE S permits for stormwater discharges from fo rest roads.

Response Please refer to Response 1.



# Comment ID 0264

- A1.001.002

Author Name: Magruder John Organization: Magruder Family Tree Farm Issue Category: 1 As a family forest owner from Tappahannock, VA, I agree with and support EPA's objective not to require National Pollutant Discharge Elimination System (NPDES) permits for stormwater discharges from forest roads.

Response Please refer to Response 1.



# Comment ID 0265

- A1.001.002

Author Name: Pierce Josiah Organization: The Pierce PlaceChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 28 Issue Category: 1 As a family forest owner from Baldwin, Maine, I agree with and support EPA's objective not to require National Pollutant Disc harge Elimination System (NPDES) permits for stormwater discharges from forest roads.

Response Please refer to Response 1.



# Comment ID 0266

- A1.001.002

Author Name: Goergen Jr. Michael Organization: Society of American Foresters (SAF) Issue Category: 1 1. SAF supports the intention of the proposed rule, which is to clarify which silvicultural stormwater discharges are associated with industrial activity. We agree with the EPA that only four activities are industrial, including rock crushing, gravel washing, log sorting, and log storage facilities operated in conjunction with silvicultural acti vities - as defined in 40 CFR 122.27(b)(2)

- (3).

2. SAF also agrees with the Notice that roads used for silvicultural activities are not “immediate access roads” associated w ith industrial facilities, given that they have multiple uses, cross ownership bou ndaries, and can extend over long distances.

Response Please refer to Response 1.



# Comment ID 0266

- A1.001.006

Author Name: Goergen Jr. Michael Organization: Society of American Foresters (SAF) Issue Category: 1 6. However, should the US Supreme Court affirm the 9th Circuit Court opinion that some roads used for silviculture are point sources, we agree with the EPA that these should be evaluated under section 402(p)(6) of the Clean Water Act. As mentioned in the Noti ce, this
section of the Act doe s allow for a range of flexible approaches to address the complexities of forest road ownership, management, and use. The best way to do this is to defer to current state BMP programs.

Response Please refer to Response 1. Refer also to the preamble to the final rule.



# Comment ID 0268

- A1.001.002

Author Name: Jane F. Severt Elroy Zemke Organization: Wisconsin County Forests Association (WCFA)Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 29 Issue Category: 1 WCFA agrees with EPA's continued support of the silviculture exemption for forest roads as outlined in the proposed rule. The 1976 determination that forest roads and general forestry practices are best regulated through the use of state adopted Forestry B est Management Practices (BMP's) for Water Quality has served to protect water quality here in Wisconsin and across the United St ates.

Response Please refer to Response 1.



# Comment ID 0271

- A1.001.002

Author Name: Edman George Organization: Edman Company Issue Category: 1 Edman Company agrees with and supports EPA's objective not to require National Pollutant Discharge Elimination System ("NPDES ") permits for stormwater discharges from forest roads.

Response Please refer to Response 1.



# Comment ID 0272

- A1.001.002

Author Name: Case Michael Organization: The Westervelt Company Issue Category: 1 The Westervelt Company agrees with an:l supports EPA's objecjye net tu require National Pollutant Discharge Elimination System C'NPDES") permits for stormwater discharges from forest roads.

Response Please refer to Response 1.



# Comment ID 0273

- A1.001.002

Author Name: Snyder William Organization: State of California Natural Resources Agency Issue Category: 1 The California Department of Forestry and Fire Protection (CAL FIRE) supports this clarification and the adoption of this pro posed amendment by U.S. Environmental Protection Agency (EPA) to 40 CFR Part 122.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 30 Response Please refer to Response 1.



# Comment ID 0273

- A1.001.006

Author Name: Snyder William Organization: State of California Natural Resources Agency Issue Category: 1 CAL FIRE believes requiring NPDES permits on logging road drainage structures would disrupt the current effective and efficie nt regulation of logging road water quality problems and thwart the rapidly advancing regulatory improvements that are being made i n this area. CAL FIRE concurs that the EPA has the authority to specify which silvicultural discharges are included in the NPDES per mit program. Those that have been specified by the EPA as needing and NPDES permit are: (1) rock crushing, (2) gravel washi ng, (3) log sorting, and (4) log storage facilities.

In conclusion, CAL FIRE supports and urges the EPA to adopt the proposed revision to Stormwater Regulations to clarify that a NPDES Permit is not required for stormwater discharges from logging road s. CAL FIRE believes the clarification will sustain existing logging

- road related water quality protections, and allow pending improvements in those protections to progress without interruption or delay.

Response Please refer to Response 1.



# Comment ID 0274

- A1.001.002

Author Name: Graham Owen Organization: Alaska Forest Association (AFA) Issue Category: 1 The Alaska Forest Association supports the EPA position that runoff from logging roads do not require a CWA Section 402 permi t.

Response Please refer to Response 1.



# Comment ID 0275

- A1.001.002

Author Name: Olszewski Robert Organization: Plum Creek Issue Category: 1 Plum Creek agrees with and supports EPA's objective not to require National Pollutant Discharge Elimination System ("NPDES") permits for stormwater discharges from forest roads.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 31 Response Please refer to Response 1.



# Comment ID 0276

- A1.001.002

Author Name: Paul DeLong Ken Johnson Organization: Wisconsin Department of Natural Resources (WDNR) Issue Category: 1 We support EPA's proposal to modify 40 CFR 122.26 in order to clarify that, where logging roads provide access to silvicultur al activities, they do not constitute "immediate access" to an industrial activity, except for access to facilit ies previously identified as "rock crushing, gravel washing, log sorting or log storage." This clarification codifies a long

- standing regulatory decision that silvicultural activities are exempt from the requirements of NPDES permits.

Response
Please refer to Response 1.



# Comment ID 0277

- A1.001.002

Author Name: O'Neill William Organization: Michigan Department of Natural Resources (MDNR) Issue Category: 1 The MDNR fully supports the Environmental Protection Agency's (EPA) proposal to modify 40 CFR 122.26 in order to clarify that
, where logging roads provide access to silvicultural activities, they do not constitute "immediate access" to an industrial ac tivi ty, except for access to facilities previously identified as "rock crushing; gravel washing, log sorting or log storage." This clarification codifies a long

- standing regulatory decision concerning the silvicultural activities exempted from the requirements of a National Pollutant Discharge Elimination System (NPDES) permit.

Response Please refer to Response 1.Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 

# Issue Category 2: E xtension of C omment P eriod, Endorsements, Incorporate by Reference

Pages 2-32 to 2 -33

Response to Public Comments

Revisions to Stormwater Reg ulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads

November 30, 2012

Docket #: EPA

- HQ -OW- 2012

- 0195Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 32 

# 2

. EXTENSION OF COMMENT PERIOD, ENDORSEMENTS, INCORPORATE BY REFERENCE

Comment ID 0187

- A1.001.001

Author Name: Tenny David Organization: National Alliance of Forest Owners (NAFO) Issue Category: 2 On behalf of the National Alliance of Forest Owners ("NAFO"), I am writing to seek an extension of at least 60 days of the co mment period for the above referenced Notice of proposed rulemaking ("the Notice"). As explained in greater detail below, the Notice and its related legal issues are discussed in a recent amicus brief filed by the Solicitor General in two pending cases (consolidated) before the U.S. Supreme Court. NAFO' s comments on the Notice would be better informed following receipt of upcoming briefs in the case. As a result, NAFO suggests that it would be appropriate for the comment period to run until after the close of briefing before the Supreme
Court and therefo re requests an extension of at least 60 days.

Response Please refer to Response 2.



# Comment ID 0187

- A1.001.003

Author Name: Tenny David Organization: National Alliance of Forest Owners (NAFO) Issue Category: 2 NAFO believes that the development of its comments on the Notice would benefit from review and analysis of the briefs that will be filed in October and November and are expected to address the issues raised in the Solicitor General's filing. Accordingly, N AFO respectfully requests an extens ion of time for the closing of the comment period of the Notice that would align with the closing of the briefing period before the U.S. Supreme Court, i.e. an extension of at least 60 days.

Response Please refer to Response 2. Refer also to Response 4.



# Comment ID 0193

- A1.001.003

Author Name: Partin Tom Organization: American Forest Resource Council (AFRC) Issue Category: 2 Please suspend the public comment period on this proposal and reopen it once the Supreme Court has ruled.

ResponseChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 33 Please refer to Response 2.Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 

# Issue Category 3: EPA’s Handling of

Comments on the Notice of Intent

Page 2-34

Response to Public Comments

Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads

November 30, 2012

Docket #: EPA

- HQ -OW- 2012

- 0195Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 34 

# 3

. EPA’S HANDLING OF COMMENTS ON THE NOTICE OF INTENT

Comment ID 0269

- A1.001.002

Author Name: Chris Winter Paul Kampmeier Organization: Washington Forest Law Center and Crag Law Center (obo Northwest Environmental Defense Center et al.) Issue Category: 3 Although we assume that EPA is considering all the studies and information cited in the May 23, 2012 Federal Register notice as it
decides whether to amend the Phase I stormwater rule, we hereby formally request that EPA include in the administrative record for this matter all the information mentioned or cited in that Federal Register notice. Additionally, please include these comments, o ur June 22, 2012 comments, and t he materials we are submitting via courier in the administrative record for this matter (Docket Number
EPA

- HQ

- OW

- 2012

- 0195). The submitted materials include a letter and materials sent to EPA by the Northwest Environmental Defense Center on April 25, 2012 regarding examples of current logging road management. These examples, which include programs in Washington State and in United States National Forests, inform the Conservation Groups' comments and should be viewed as inst ructive in developing a strategy f or reducing pollution from logging roads. Also please respond to each comment in writing.

Before explaining the Conservation Groups' specific concerns with the proposed rule, we wish to express our disappointment wi th EPA's decision not to respond to the comments we submitted on June 22, 2012, in response to EPA's May 23, 2012 Federal Register notice. EPA failed to respond to the conservation community's concerns about forest roads during the Phase II rulemaking process in t he late 1990s. See Environmental Defense Center v. EPA, 344 F.3d 832 (9th Cir. 2003). Since then

- and for nearly ten years -E PA has failed or refused to respond to the remand order in that case. Now, without responding at all to the Conservation Groups June 2012 comm ents, EPA proposes to roll back the NPDES permit requirements for active industrial logging roads, while also clai ming it needs to continue studying other forest road discharges before building a Phase II program for non

- industrial and inactive forest roads.

EPA's refusal to squarely and publicly address the well

- documented pollution problem caused by logging roads is discouraging. Had EPA responded to our June 22 comments in the September 4, 2012 Federal Register notice, the conservation community would be i n a much better position now to provide comments that specifically address EPA's concerns with the U.S. Court of Appeals' decision in Northwest Environmental Defense Center v. Brown, 640 F.3d 1063 (9th Cir. 2011). EPA must bring significantly more clarity and transparency to its regulatory approach to stormwater discharges from logging roads. EPA can take the firs t step in that direction by responding clearly and fully to all comments submitted on its proposed rule.

Response Thank you for your comments. The EPA has reviewed all comment letters and responded to the comments received on the proposed rule. Please refer to Response 3, Response 4, Response 7, Response 8, Response 9, Response 10, Response 11, Response 12, Response 1 3, and the preamble to the final rule.Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 

# Issue Category 4 : EPA’s or the United States’ Position on NEDC v. Brown

Pages 2-35 to 2 -36

Response to Public Comments

Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads

November 30, 2012

Docket #: EPA

- HQ -OW- 2012

- 0195Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 35 

# 4

. EPA’S OR THE UNITED STATES’ POSITION ON NEDC V BROWN

Comment ID 0205

- A1.001.002

Author Name: Schuler Galen Organization: Green Diamond Resource Company Issue Category: 4 Under circumstances such as these, which are common throughout the United States, the NEDC v. Brown decision is not only wrong as a matter of law, but it serves no purpose. NPDES permitting for forest roads will add paperwork, costs, controversy, and litigation, but there will be no discernible benefit because forests are already appropriately

- managed and regulated for the protection of water quality throughout the United States.

Response Please refer to Response 1 and Response 13.



# Comment ID 0219

- A2.001.004

Author Name: Covar Zak Organization: Texas Commission on Environmental Quality (TX CEQ) Issue Category: 4 The Notice of Proposed Revisions states that EPA continues to review available information on the water

- quality impacts of stormwater discharges from forest roads, which include logging roads. It is also stated that EPA is considering a range of options to ad dress such discharges, which could include designating a subset of stormwater discharges from forest roads for regulatio n under the Agency's section 402(p) rulemaking authority. The TCEQ questions EPA's intent to include the larger category of forest roads when the decision in Northwest Environmental Defense Center v. Brown addressed stormwater runoff only from certain logg ing roads. The Northwest Environmental Defense Center case specifically addressed stormwater runoff from logging roads that was collected in a series of ditches, culverts, and channels and was diverted into streams and rivers. It appears that EPA is seekin g to address a broader spectrum of nonpoint source runoff from logging roads which are specifically exempted from NPDES coverage under the Northwest Environmental Defens e Center case. EPA therefore should not, through this rulemaking regulate all forest ro ads other than just logging roads. The TCEQ is opposed to any actions by EPA which would lead to the regulation of a more extensive universe of forest roads.

Response Please refer to Response 13 and to the preamble to today's rule.



# Comment ID 0245

- A1.001.004

Author Name: Smalley Bryan Organization: Southeastern Lumber Manufacturers Assocation (SLMA) Issue Category: 4 SLMA filed an amicus brief in support of Petitioners in Decker v. NEDC and Georgia

- Pacific

- West v. NEDC based upon our belief thatChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 36 the Ninth Circuit Court of Appeals erred in its ruling that forest roads require National Pollutant Discharge Elimination System (NPDES) permits under the Clean Water Act.

Response Please refer to Response 1, Response 15, and the preamble to today's rule.



# Comment ID 0254

- A1.001. 003

Author Name: Lynch Robert Organization: Irrigation & Electrical Districts Association of Arizona (IEDAA) Issue Category: 4 Clearly, EPA's determination that such roads are not "immediate access roads" or roads "associated with industrial activity" as your Phase I regulations define those terms is an interpretation the Ninth Circuit should have taken into account and to which it should have
deferred.

However, the Court didn't do that and its holding is sufficiently broad to bring into question whether this attempt at clarif ication can get the job done. That question need not be answered because, as you know, the case is now before the Supreme Court on the merits.

On the same day your notice was published in the Federal Register, EPA filed a brief in the Supreme Court to the effect that the Ninth Circuit should have deferred to EPA in interpretation of this rule. It did so because the Supreme Court had accepted certiorari in this case in June and the briefing schedule is about to be concluded this fall. Obviously, then, oral argument will take place at some time in this term of the Court and a decision will be forthcoming most likely by the end of June before the term ends.

Whatever EPA decides to do in terms of attempting to finalize this rule, and we are in no way suggesting it should not, we believe that any further action on this subject should inform the public of t he status of the Supreme Court case and the likelihood that some adjustment to any completed rulemaking on this subject prior to the issuance of that decision may require further amendment t o the rule or clarification of it to bring it into compliance with the Supreme Court's ultimate decision.

Response Please refer to Response 4 and to the preamble to the final rule.Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 

# Issue Category 5: Reque sts for the EPA to Delay Action

Pages 2-37 to 2 -69

Response to Public Comments

Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads

November 30, 2012

Docket #: EPA

- HQ -OW- 2012

- 0195Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 37 

# 5

. REQUESTS FOR THE EPA TO DELAY ACTION

Comment ID 0190

- A1.001.003

Author Name: Brian S. Keiling Howard M. Persinger, Jr. Organization: West Virginia Land and Mineral Owners Association (WVLMOA) Issue Category: 5 We believe EPA should vigorously support its 36

- year policy of relying on BMPs to address water quality impacts from these activities while awaiting a ruling on th e logging road issue by the Supreme Court. We further believe the court's ruling is likely to make revision of current stormwater regulations unnecessary.

Response Please refer to Response 4. Refer also to Response 5, Response 6, and the preamble to today's rule.



# Comment ID 0193

- A1.001.002

Author Name: Partin Tom Organization: American Forest Resource Council (AFRC) Issue Category: 5 We appreciate the willingness of the Environmental Protection Agency to deal directly with the issues raised by the Ninth Circuit Court of Appeals ruling in NEDC v. Brown. However, we urge that revisions to the stormwater rules for logging roads await a decisio n by the
U.S. Supreme Court in the now

- pending appeals of that decision. We believe that rule revision can best be done in light of the high court's final decision in that case, rather than in a piecemeal fashion.

Response Please refer to Response 4. Refer also to the preamble to today's rule.



# Comment ID 0198

- A1.001.003

Author Name: Dructor Daniel Organization: American Loggers Council (ALC) Issue Category: 5 The proposed revisions to the Phase I stormwater rule are an appropriate proposed response to the NEDC v. Brown decision, although [Organization] believes that EPA should not finalize the Proposed Rule while review of that Ninth Circuit opinion is pending before the U.S. Supreme Court.

Response
Please re fer to Response 1. Refer also to Response 4 and to the preamble to today's rule.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 38 

# Comment ID 0198

- A1.001.005

Author Name: Dructor Daniel Organization: American Loggers Council (ALC) Issue Category: 5 For all these reasons, it would be appropriate for EPA to await the result of the Supreme Court's review.

Response Please refer to Response 4.



# Comment ID 0200

- A1.001.003

Author Name: Crawford Cam Organization: South Carolina Forestry Association (SCFA) Issue Category: 5 The proposed revisions to the Phase I stormwater rule are an appropriate proposed response to the NEDC v. Brown decision, although SCFA believes that EPA should not finalize the Proposed Rule while review of that Ninth Circuit opinion is pending before the U.S. Supreme Court.

Response Please refer to Response 4. Refer also to the preamble to today's rule.



# Comment ID 0200

- A1.001.005

Author Name: Crawford Cam Organization: South Carolina Forestry Association (SCFA) Issue Category: 5 For all these reasons, it would be appropriate for EPA to await the result of the Supreme Court's review.

Response Please refer to Response 4.



# Comment ID 0201

- A1.001.003

Author Name: Vandersteen C.A. Organization: The Louisiana Forestry Association (LFA) Issue Category: 5 LFA firmly believes that EPA should not finalize this Proposed Rule while review of that Ninth Circuit opinion is pending bef ore the U.S. Supreme court.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 39 Response Please refer to Response 4.



# Comment ID 0201

- A1.001.005

Author Name: Vandersteen C.A. Organization: The Louisiana Forestry Association (LFA) Issue Category: 5 For all these reasons, it would be appropriate for EPA to await the result of the Supreme Court's review.

Response Please refer to Response 4.



# Comment ID 0202

- A1.001.003

Author Name: Slocum, Jr. Robert Organization: NC Forestry Association (NCFA) Issue Category: 5 The proposed revisions to the Phase I stormwater rule are an appropriate proposed response to the NEDC v. Brown decision, alt hough
The NCFA believes that EPA should not finalize the Proposed Rule while review of that Ninth Circuit opinion is pending before the U.S. Supreme Court.

Response Please refer to Response 1 and Response 4.



# Comment ID 0202

- A1.001.005

Author Name: Slocum, Jr. Robert Organization: NC Forestry Association (NCFA) Issue Category: 5 For all these reasons, it would be appropriate for EPA to await the result of the Supreme Court's review.

Response Please refer to Response 4. Refer also to Response 5 and to the preamble to today's rule.



# Comment ID 0203

- A1.001.004Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 40 Author Name: Partin Tom Organization: American Forest Resource Council (AFRC) Issue Category: 5 However, AFRC believes that EPA should not finalize the Proposed Rule while review of that Ninth Circuit opinion is pending before the U.S. Supreme Court. It is our understanding that Congress' passage of a Continuing Resolution extending the provisions o f the FY 2012 appropriations bill makes the moratorium on issuance of NPDES permits for logging r oads effective until March, 2013. Therefore, there is no need for EPA to act at this time. We urge that revisions to the stormwater rules for forest roads awa it a decision by the U.S. Supreme Court. We believe rule revision can best be done in light of the high court's final decision in that case, rather than in a piecemeal fashion.

Response Please refer to Response 4. Refer also to Response 5 and to the preamble to today's rule.



# Comment ID 0204

- A1.001.003

Author Name: Harrelson, Sr. David Org anization: St. Joe Timberland Company of Delaware, LLC Issue Category: 5 The proposed revisions to the Phase I stormwater rule are an appropriate proposed response to the NEDC v. Brown decision, alt hough St. Joe Timberland believes that EPA should not finalize the Proposed Rule while review of that Ninth Circuit opinion is pending before the U.S. Supreme Court.

Response Please refer to Response 4.



# Comment ID 0204

- A1.001.005

Author Name: Harrelson, Sr. David Organization: St. Joe Timberland Com pany of Delaware, LLC Issue Category: 5 For all these reasons, it would be appropriate for EPA to await the result of the Supreme Court's review.

Response Please refer to Response 4.



# Comment ID 0205

- A1.001.004

Author Name: Schuler Galen Organization: Green Diamond Resource CompanyChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 41 Issue Category: 5 However, Green Diamond maintains that EPA should not finalize the Proposed Rule while review of that Ninth Circuit opinion is pending before the U.S. Supreme Court.

Response
Please refer to Response 4.



# Comment ID 0205

- A1.001.006

Author Name: Schuler Galen Organization: Green Diamond Resource Company Issue Category: 5 For all these reasons, it would be appropriate for EPA to suspend further action on the Proposed Rule and await the result of the Supreme
Court's review.

Response Please refer to Response 4.



# Comment ID 0207

- A1.001.003

Author Name: Hufford Ronald Organization: Texas Forestry Association (TFA) Issue Category: 5 The proposed revisions to the Phase I stormwater rule are an appropriate proposed response to the NEDC v. Brown decision, although TFA members believe that EPA should not finalize the Proposed Rule while review of that Ninth Circuit opinion is pending befo re the U.S. Supreme Court.

Response
Please r efer to Response 4. Refer also to Response 1 and to the preamble to today's rule.



# Comment ID 0207

- A1.001.005

Author Name: Hufford Ronald Organization: Texas Forestry Association (TFA) Issue Category: 5 For all these reasons, it would be appropriate for EPA to await the result of the Supreme Court's review.

ResponseChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 42 Please refer to Response 4.



# Comment ID 0208

- A1.001.003

Author Name: Robertson Alan Organization: Pfalzerwald Tree Farm Issue Category: 5 However, I would urge you to delay your final rule until while review of the Ninth Circuit opinion is pending before the U.S. Supreme Court. Family forest owners need certainty on this issue, and additional regulations on this issue create uncertainty whi le the court case is pending.

Response Please refer to Response 4. Refer also to Response 5.



# Comment ID 0208

- A1.001.007

Author Name: Robertson Alan Organization: Pfalzerwald Tree Farm Issue Category: 5 Family forest owners like myself need certainty on this issue, and I encourage you to delay your decision on this rule while we await the Supreme Court's ruling, which could be relevant to the Proposed Rule and whether the Proposed Rule is even necessary.

Response Please refer to Response 4. Refer also to Response 5.



# Comment ID 0209

- A1.001.003

Author Name: Qualman Robert Organization: Qualman Tree Farm Issue Category: 5 However, I would urge you to delay your final rule until while review of the Ninth Circuit opinion is pending before the U.S. Supreme Court. Family forest owners need certainty on this issue, and additional regulations on this issue create uncertainty while the court case is pending.

Response Please refer to Response 4 and Response 5. Refer also to the preamble to today's rule.



# Comment ID 0209

- A1.001.007Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 43 Author Name: Qualman Robert Organization: Qualman Tree Farm Issue Category: 5 Family forest owners like myself need certainty on this issue, and I encourage you to delay your decision on this rule while we await the Supreme Court's ruling, which could be relevant to the Proposed Rule and whether the Proposed Rule is even necessary.

Response Please refer to Response 4 and Response 5. Refer also to the preamble to today's rule.



# Comment ID 0210

- A1.001.003

Author Name: Hulka Bryan Organization: Slade Creek LLC Issue Category: 5 However, I would urge you to delay your final rule until while review of the Ninth Circuit opinion is pending before the U.S. Supreme Court. Family forest owners need certainty on this issue, and additional regulations on this issue create uncertainty whi le the court case is pending.

Response Please refer to Response 4 and Response 5.



# Comment ID 0210

- A1.001.007

Author Name: Hulka Bryan Organization: Slade Creek LLC Issue Category: 5 Family forest owners like myself need certainty on this issue, and I encourage you to delay your decision on this rule while we await the Supreme Court's ruling, which could be relevant to the Proposed Rule and whether the Proposed Rule is even necessary.

Response Please refer to Response 4 and Response 5.



# Comment ID 0211

- A1.001.004

Author Name: Lyskava Paul Organization: Pennsylvania Forest Products Association (PFPA) Issue Category: 5 The proposed revisions to the Phase I stormwater rule are an appropriate proposed response to the NEDC v. Brown decision, alt hough we believe that EPA should not finalize the Proposed Rule while review of that Ninth Circuit opinion is pending before the U. S. SupremeChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 44 Court.

Response Please refer to Response 1, Response 4, and Response 5.



# Comment ID 0211

- A1.001.006

Author Name: Lyskava Paul Organization: Pennsylvania Forest Products Association (PFPA) Issue Category: 5 For all these reasons, it would be appropriate for EPA to await the result of the Supreme Court's review.

Response Please refer to Response 4.



# Comment ID 0212

- A1.001.003

Author Name: Hawkinson Deb Organization: Forest Resources Association Inc. (FRA) Issue Category: 5 The proposed revisions to the Phase I stormwater rule are an appropriate proposed response to the NEDC v. Brown decision, alt hough FRA believes that EPA should not finalize the Proposed Rule while review of that Ninth Circuit opinion is pending before the U.S. Supreme Court.

Response Please refer to Response 4.



# Comment ID 0212

- A1.001.005

Author Name: Hawkinson Deb Organization: Forest Resources Association Inc. (FRA) Issue Category: 5 For all these reasons, it would be appropriate for EPA to await the result of the Supreme Court's review.

Response Please refer to Response 4.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 45 

# Comment ID 0213

- A1.001.003

Author Name: Drechsel Russell Organization: Madison Paper Industries Issue Category: 5 The proposed revisions to the Phase I stormwater rule are an appropriate proposed response to the NEDC v. Brown decision, although Madison Paper Industries believes that EPA should not finalize the Proposed Rule while review of the Ninth Circuit opinion is pending before the U.S. Supreme Court

.

Response Please refer to Response 4. Refer also to Response 1.



# Comment ID 0213

- A1.001.005

Author Name: Drechsel Russell Organization: Madison Paper Industries Issue Category: 5 For all these reasons, it would be appropriate for EPA to await the result of the Supreme Court's review.

Response Please refer to Response 4.



# Comment ID 0214

- A1.001.003

Author Name: Bush J.R. Organization: Virginia Forest Products Association (VFPA) Issue Category: 5 The proposed revisions to the Phase I stormwater rule are an appropriate proposed response to the NEDC v. Brown decision, although VFPA believes that EPA should not finalize the Proposed Rule while review of that Ninth Circuit opinion is pending before the U.S. Supreme Court.

Response
Ple ase refer to Response 4.



# Comment ID 0214

- A1.001.005

Author Name: Bush J.R. Organization: Virginia Forest Products Association (VFPA) Issue Category: 5 For all these reasons, it would be appropriate for EPA to await the result of the Supreme Court's review.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 46 Response Please refer to Response 4.



# Comment ID 0215

- A1.001.003

Author Name: ZumBahlen Bruce Organization: Z Acres Tree Farm Issue Category: 5 But, I urge you to delay your final rule while the review of the Ninth Circuit opinion is pending before the U.S. Supreme Cou rt. Family forest owners need certainty on this issue, and additional regulations on this issue create uncertainty while the court case is pending.

Response Please refer to Response 4 and Response 5.



# Comment ID 0215

- A1.001.007

Author Name: ZumBahlen Bruce Organization: Z Acres Tree Farm Issue Category: 5 Family forest owners like myself need certainty on this issue, and I encourage you to delay your decision on this rule while we await the Supreme Court's ruling, which could be relevant to the Proposed Rule and whether the Proposed Rule is even necessary.

Response Please refer to Response 4 and Response 5.



# Comment ID 0218.001.002

Author Name: Boyd M. Organization: Issue Category: 5 Although rule

- making such as is being considered by EPA may be an appropriate response, it is prudent to await the final decision from the Supreme Court, which will determine the scope and need for rule

- making if indeed any is necessary. The number of possible outcomes of the Supreme Court decision, most relevant being the upholding of the Silvicultural rule exclu ding forest roads as industrial activity and treated as non

- point sources discharges, means EPA should suspend actions subject to clarification and guidance.

Response Please refer to Response 4 and Response 5. Refer also to Response 7, Response 8, and the preamble to today's rule.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 47 

# Comment ID 0220

- A1.001.003

Author Name: Lange Walter Organization: Lange Tree Farm Issue Category: 5 However, I would urge you to delay your final rule until while review of the Ninth Circuit opinion is pending before the U.S. Supreme Court. Family forest owners need certainty on this issue, and additional regulations on this issue create uncertainty while t he court case is pending.

Response Please refer to Response 4 and Response 5.



# Comment ID 0220

- A1.001.007

Author Name: Lange Walter Organization: Lange Tree Farm Issue Category: 5 Family forest owners like myself need certainty on this issue, and I encourage you to delay your decision on this rule while we await the Supreme Court's ruling, which could be relevant to the Proposed Rule and whether the Proposed Rule is even necessary.

Response Please refer to Response 4 and Response 5.



# Comment ID 0221

- A1.001.003

Author Name: Stuber IV Daniel Organization: Forest2Market, Inc. Issue Category: 5
The proposed revisions to the Phase I stormwater rule are an appropriate proposed response to the NEDC v. Brown decision, althoug h Forest2Market, Inc. believes that EPA should not finalize the Proposed Rule while review of that Ninth Circuit opinion is pen din g before the U.S. Supreme Court.

Response Please refer to Response 4.



# Comment ID 0221

- A1.001.005

Author Name: Stuber IV DanielChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 48 Organization: Forest2Market, Inc. Issue Category: 5 For all these reasons, it would be appropriate for EPA to await the result of the Supreme Court's review.

Response Please refer to Response 4.



# Comment ID 0222

- A1.001.003

Author Name: Ryder Allan Organization: Timber Resource Group, Inc. (TRG) Issue Category: 5 The proposed revisions to the Phase I stormwater rule are an appropriate proposed response to the NEDC v. Brown decision, although Timber Resource Group believes that EPA should not finalize the Proposed Rule while review of that Ninth Circuit opinion is p ending before the U.S. Supreme Court.

Response Please refer to Response 4.



# Comment ID 0222

- A1.001.005

Author Name: Ryder Allan Organization: Timber Resource Group, Inc. (TRG) Issue Category: 5 For all these reasons, it would be appropriate for EPA to await the result of the Supreme Court's review.

Response Please refer to Response 4.



# Comment ID 0223

- A1.001.003

Author Name: Braswell Max Organization: Arkansas Forestry Association (AFA) Issue Category: 5 The proposed revisions to the Phase I stormwater rule are an appropriate proposed response to the NEDC v. Brown decision, although AFA members believe that EPA should not finalize the Proposed Rule while review of that Ninth Circuit opinion is pending befo re the U.S. Supreme Court.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 49 Response
Please refer to Response 4.



# Comment ID 0223

- A1.001.005

Author Name: Braswell Max Organization: Arkansas Forestry Association (AFA) Issue Category: 5 For all these reasons, it would be appropriate for EPA to await the result of the Supreme Court's review.

Response Please refer to Response 4.



# Comment ID 0225

- A1.001.003

Author Name: Bryant John Organization: American Forest Management (AFM) Issue Category: 5 The proposed revisions to the Phase I stormwater rule are an appropriate proposed response to the NEDC v. Brown decision, although [Organization] belieVes that EPA should not finalize the Proposed Rule while review of that Ninth Circuit opinion is pending before the US Supreme Court.

Response Please refer to Response 4.



# Comment ID 0225

- A1.001.005

Author Name: Bryant John Organization: American Forest Management (AFM) Issue Category: 5 For all these reasons, it would be appropriate for EPA to await the result of the Supreme Court's review.

Response Please refer to Response 4.



# Comment ID 0226

- A1.001.003

Author Name: Bauer Robert Organization: Kentucky Forest Industries Association (KFIA)Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 50 Issue Category: 5 The proposed revisions to the Phase I stormwater rule are an appropriate proposed response to the NEDC v. Brown dec ision, although KFIA believes that EPA should not finalize the Proposed Rule while review of that Ninth Circuit opinion is pending before the U.S. Supreme Court.

Response Please refer to Response 4.



# Comment ID 0226

- A1.001.005

Author Name: Bauer Robert Organization: Kentucky Forest Industries Association (KFIA) Issue Category: 5 For all these reasons, it would be appropriate for EPA to await the result of the Supreme Court's review.

Response Please refer to Response 4.



# Comment ID 0227

- A1.001.003

Author Name: Racliff Jr. J. Organization: Mississippi Forestry Association (MFA) Issue Category: 5 The proposed revisions to the Phase I stormwater rule are an appropriate proposed response to the NEDC v. Brown decision, alt hough Mississippi Forestry Association believes that EPA should not finalize the Proposed Rule while review of that Ninth Circuit o pinion is pending before the U.S. Supreme Court.

Response Please refer to Response 4.



# Comment ID 0227

- A1.001.005

Author Name: Racliff Jr. J. Organization: Mississippi Forestry Association (MFA) Issue Category: 5 For all these reasons, it would be appropriate for EPA to await the result of the Supreme Court's review.

ResponseChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 51 Please refer to Response 4.



# Comment ID 0228

- A1.001.003

Author Name: Johnson Andrew Organization: Graphic Packaging International (GPI) Issue Category: 5 The proposed revisions to the Phase I stormwater rule are an appropriate proposed response to the NEDC v. Brown decision, although GPI believes that EPA should not finalize the Proposed Rule while review of that Ninth Circuit opinion is pending before the U.S. Supreme Court.

Response Please refer to Response 4.



# Comment ID 0228

- A1.001.005

Author Name: Johnson Andrew Organization: Graphic Packaging International (GPI) Issue Category: 5 For all these reasons, it would be appropriate for EPA to await the result of the Supreme Court's review.

Response Please refer to Response 4.



# Comment ID 0230

- A1.001.004

Author Name: Godbout Kevin Organization: Weyerhaeuser Company Issue Category: 5 EPA Should wait for the Ruling from the Supreme Court Prior to Finalizing the Proposed Rule

As EPA recognizes in the Proposed Rule, the U.S. Supreme Court is considering i ssues beyond the Phase I stormwater program in its review of the NEDC v. Brown decision, particularly the question of whether forest roads are point sources. Thus, the scope of the Supreme Court's ruling could be relevant to the Proposed Rule and whether t he Proposed Rule is even necessary. For instance, if the Supreme Court upholds the 1976 Silvicultural Rule and rules that forest roads are a nonpoint source, then there is no further need for EPA to consider forest roads under any aspect of the section 402(p) stormwater program. In addition, there would be no need for a rulemaking on whether discharges from forest roads are associated with industrial activity and require NPDES permits. Moreove r, the Supreme Court may provide further clarity or guidance on the Ninth Circuit's ruling on the Phase I regulations.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 52 Response Please refer to Response 4 and Response 5. Refer also to Response 7, Response 8, and the preamble to today's rule.



# Comment ID 0230

- A1.001.008

Author Name: Godbout Kevin Organization: Weyerhaeuser Company Issue Category: 5 In closing, while the point source/nonpoint source and Phase I questions are pending before the U.S. Supreme Court, we ask th at EPA put all regulatory action (Phase I and Phase II) related to forest ro ads on hold until the Supreme Court decides the questions before it.

Response Please refer to Response 4. Refer also to the preamble to today's rule.



# Comment ID 0231

- A1.001.003

Author Name: Schnoor Candace Organization: John Deere Construction & Forestry Division Issue Category: 5 The proposed revisions to the Phase I stormwater rule are an appropriate proposed response to the NEDC v. Brown decision; how ever, Deere believes EPA should not finalize the Proposed Rule while review of the Ninth Cir cuit opinion is pending before the U.S. Supreme
Court.

Response Please refer to Response 4.



# Comment ID 0231

- A1.001.005

Author Name: Schnoor Candace Organization: John Deere Construction & Forestry Division Issue Category: 5 For all the above reasons, it would be appropriate for EPA to await the result of the Supreme Court's review.

Response Please refer to Response 4.



# Comment ID 0232

- A1.001.003

Author Name: Wright VanceChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 53 Organization: Wright Forestry LLC Issue Category: 5 However, I would urge you to delay your final rule until while review of the Ninth Circuit opinion is pending before the U.S. Supreme Court. Family forest owners need certainty on this issue, and additional regulations on this issue create uncertainty whi le the court case is pending.

Response Please refer to Response 4.



# Comment ID 0232

- A1.001.007

Author Name: Wright Vance Organization: Wright Forestry LLC Issue Category: 5 Family forest owners like myself need certainty on this issue, and I encourage you to delay your decision on this rule while we await the Supreme Court's ruling, which could be relevant to the Proposed Rule and whether the Proposed Rule is even necessary.

Response Please refer to Response 4 and Response 5.



# Comment ID 0233

- A1.001.003

Author Name: Blosser Mike Organization: Louisiana Pacific Corporation (LP) Issue Category: 5 The proposed revisions to the Phase I stormwater rule are an appropriate proposed response to the NEDC v. Brown decision, although LP believes that EPA should not finalize the Proposed Rule while review of that Ninth Circuit opinion is pending before the U .S. Supreme Court.

Response Please refer to Response 4.



# Comment ID 0233

- A1.001.005

Author Name: Blosser Mike Organization: Louisiana Pacific Corporation (LP) Issue Category: 5 For all these reasons, it would be appropriate for EPA to await the result of the Supreme Court's review.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 54 Response
Please refer to Response 4.



# Comment ID 0234

- A1.001.003

Author Name: Martin Tom Organization: American Forest Foundation (AFF) Issue Category: 5 The proposed revisions to the Phase I stormwater rule are an appropriate proposed response to the NEDC v. Brown decision, although we believe that EPA should not finalize the Proposed Rule while review of that Ninth Circuit opinion is pending before the U. S. Supreme Court,

Response Please refer to Response 4.



# Comment ID 0234

- A1.001.007

Author Name: Martin T om Organization: American Forest Foundation (AFF) Issue Category: 5 Recommendation to EPA to Delay Final Rulemaking, Forest Owners Need Certainty

As EPA recognizes in the Proposed Rule (at 77 Fed. Reg. 53835, n.1), the Supreme Court is considering issues beyond the Phase I stormwater program in its review of the Ninth Circuit's decision, particularly the question of whether forest roads are point sources. AFF continues to support the position that forest roads should not be considered point sources of pollution. Thus, the scope of the Supreme Court's ruling could be relevant to the Proposed Rule and whether the Proposed Rule is even necessary. If the Supreme Court u pholds the 1976 Silvicultural Rule and rules that forest roads are a nonpoint source, then there is no further need for EPA to consider forest roads under any aspect of the section 402(p) stormwater program. In addition, there would be no need for a rulemaking on whether di scharges from forest roads are associated with industrial activity a nd require NPDES permits. The Supreme Court may provide further clarity or guidance on the Ninth Circuit's ruling on the Phase I regulations. It is highly likely that a final rule excluding forest roa ds from Phase I permitting will be subject to litigation in the Ninth Circuit, which would create more uncertainty on this issue for family forest owners and undermine any regulatory certainty pending the outcome of the Supreme Court case. For all these reasons, it would be appr opriate
for EPA to await the resu lt of the Supreme Court's review.

Response Refer to Response 4 and Response 5. Refer also to Response 7, Response 8, and the preamble to today's rule.



# Comment ID 0237

- A1.001.003Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 55 Author Name: Peter J. Heide Cindy Mitchell Organization: Washington Forest Protection Association (WFPA) Issue Category: 5 The proposed revisions to the Phase I stormwater rule are an appropriate proposed response to the NEDC v. Brown decision, alt hough WFPA believes that EPA should not finalize the Proposed Rule while review of that Ninth Circuit opinion is pending before the U.S. Supreme Court.

Response Please refer to Response 4.



# Comment ID 0237

- A1.001.005

Author Name: Peter J. Heide Cindy Mitchell Organization: Washington Forest Protection Association (WFPA) Issue Category: 5 For all these reasons, it would be appropriate for EPA to await the result of the Supreme Court's review.

Response Please refer to Response 4.



# Comment ID 0240

- A1.001.003

Author Name: Baumhoff Oscar Organization: Baumhoff & Company, LLC Issue Category: 5 However, I would urge you to delay your final rule until, while review of the Ninth Circuit opinion is pending before the U.S . Supreme Court. Family forest owners need certainty on this issue, and additional reg ulations on this issue create uncertainty while the court case is pending.

Response Please refer to Response 4 and Response 5. Refer also to Response 13.



# Comment ID 0240

- A1.001.007

Author Name: Baumhoff Oscar Organization: Baumhoff & Company, LLC Issue Category: 5 Family forest owners like myself need certainty on this issue, and I encourage you to delay your decision on this rule while we await the Supreme Court's ruling, which could be relevant to the Proposed Rule and whether the Proposed Rule is even necessary.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 56 Response Please refer to Response 4 and Response 5.



# Comment ID 0242

- A1.001.006

Author Name: Garber Richard Organization: Boise Inc. Issue Category: 5 However, since the U.S. Supreme Court will soon hear the appeal of the Ninth Circuit's decision in NEDC v. Brown, we believe that EPA should suspend the proposed rulemaking activity until after the Supreme Court has issued its ruling. This will prevent un necessary iterative revisions to EPA rules and will allow for a more deliberate and line ar path moving forward on the part of the EPA and the regulated community. In fact, this current EPA rule revision may be unnecessary after the court rules. Moreover, any rulemaki ng action on the part of EPA at this time, prior to the court decision, could lead to confusion regarding permit applicability for state regulators and landowners, unnecessary litigation, and an interruption in the forest biomass supply chain.

Response Please refer to Response 4 and Response 5. Refer also to Response 7, Response 8, and the preamble to today's rule.



# Comment ID 0243

- A1.001.003

Author Name: Tenny David Organization: National Alliance of Forest Owners (NAFO) Issue Category: 5 The proposed revisions to the Phase I stormwater rule are an appropriate proposed response to the NEDC v. Brown decision, alt hough NAFO believes that EPA should not finalize the Proposed Rule while review of that Ninth Circuit opinion is pending before the U.S. Supreme Court.

As EPA recognizes in the Proposed Rule (at 77 Fed. Reg. 53835, n.1), the Supreme Court is considering issues beyond the Phase I stormwater program in its review of the Ninth Circuit's decision, particularly the question of whether f orest roads are point sources. Thus, the scope of the Supreme Court's ruling could be relevant to the Proposed Rule and whether the Proposed Rule is even ne cessary. Specifically, if the Supreme Court upholds the 1976 Silvicultural Rule and rules that fores t roads are a nonpoint source, then there is no need for a rulemaking on whether discharges from forest roads are associated with industrial activity and require NPDES permi ts. In addition, the Supreme Court may provide further clarity or guidance on the N inth Circuit's ruling on the Phase I regulations. Finally, it is highly likely that a final rule excluding forest roads from Phase I permitting will be subject to litigation in the Ninth Cir cuit, which could perpetuate confusion and legal uncertainty pendi ng and following the outcome of the Supreme Court case. For all these reasons, it would be appropriate for EPA to await the result of the Supreme Court's review.

ResponseChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 57 Please refer to Response 4 and Response 5. Refer also to Response 7, Response 8, and the preamble to today's rule.



# Comment ID 0243

- A1.001.007

Author Name: Tenny David Organization: National Alliance of Forest Owners (NAFO) Issue Category: 5 II. EPA Should Await the Ruling from the Supreme Court Prior to Finalizing the Proposed Rule

In its comments to EPA's Notice of Intent Regarding Stormwater Discharges from Logging Roads (77 Fed. Reg. 30473), NAFO made clear that revising the Phase I sto rmwater permitting regulations in response to NEDC v. Brown was a sound approach if the Supreme Court did not accept review of the case. Just days after NAFO's comments were filed, the Supreme Court granted certiorari. As NAFO explained in its prior commen ts, revisions to the Phase I regulations may be an effective stop gap measure, but they do not provide full regulatory certainty to federal, state, county, tribal and private forest owners and managers given that litigation over such regulatory
revisions b efore the Ninth Circuit is a near certainty. Nor does the Proposed Rule address the point source/nonpoint source question currently pending before the Supreme Court. Thus, NAFO urges EPA to await the result of the Supreme Court review before takin g final

a ction on the Proposed Rule.

Indeed, if the Ninth Circuit ruling were final and not subject to review before the Supreme Court, NAFO would support EPA fin alizing the proposed rule as soon as practicable. Now, however, the scope of the Court's holding could be relevant to the Proposed Rule and whether the Proposed Rule is even necessary. Specifically, if the Supreme Court upholds the 1976 Silvicultural Rule and rules that forest roads are a nonpoint source, then there is no need for a rulemaking on whether discharges from forest roads are associated with industrial activity and require NPDES permits.

In addition, the Supreme Court is reviewing the Ninth Circuit's interpretation of the same regulation that EPA is proposing t o amend in the Proposed Rule. I t is logical to await the outcome of the Supreme Court's review of an appellate interpretation of a regulation before proceeding to amend the same regulation in question. It would also seem to be a more efficient use of agency resources to per form
rulemaki ng once (if at all), rather than engage in multiple rounds of proposed and final rules.

In short, depending on the scope of its ruling, the Supreme Court can provide complete regulatory certainty to NAFO's members where EPA cannot. Should the Supreme Co urt's ruling call for EPA regulatory action in response, then EPA can act at that time. In the interim, rather than expend resources and engage in an action that may prove unnecessary or subject to further amendment, NAFO urges E PA to await the outcome of the Supreme Court action before finalizing the Proposed Rule.

Response Please refer to Response 4 and Response 5. Refer also to Response 7, Response 8, and the preamble to today's rule.



# Comment ID 0243

- A1.001.010

Author Name: Tenny David Organization: National Alliance of Forest Owners (NAFO)Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 58 Issue Category: 5 Therefore, while the point source/nonpoint source and Phase I questions are pending before the Supreme Court, it would be pru dent for EPA to put all regulatory action (Phase I and Phase II) related to forest roads on hold until the Supreme Court decides the questions before it. Then, following Supreme Court review, any further EPA action under Phase II, if necessary, should be conducted fro m the standpoint of EPA's historical positi on that forest roads are nonpoint sources and avoid seeking a novel regulatory approach that would bring them and potentially other current nonpoint sources into Section 402(p)(6).

Response Please refer to Response 4. Refer also to Response 7 and to the preamble to today's rule.



# Comment ID 0244

- A1.001.003

Author Name: Carlson Eric Organization: Empire State Forest Products Association (ESFPA) Issue Category: 5 The proposed revisions to the Phase I stormwater rule are an appropriate proposed response to the NEDC v. Brown decision, although ESFPA believes that EPA should not finalize the Proposed Rule while review of that Ninth Circuit opinion is pending before th e U.S. Supreme Court.

Response Please refer to Response 4.



# Comment ID 0244

- A1.001.005

Author Name: Carlson Eric Organization: Empire State Forest Products Association (ESFPA) Issue Category: 5 For all these reasons, it is imperative for EPA to await the result of the Supreme Court's review.

Response
Please refer to Response 4.



# Comment ID 0245

- A1.001.003

Author Name: Smalley Bryan Organization: Southeastern Lumber Manufacturers Assocation (SLMA) Issue Category: 5 However, SLMA believes the EPA should wait until a decision has been released by the Supreme Court regarding NEDC v. Brown, as it will be reviewing the Ninth Circuit Court of Appeals' decision this fall. Waiting for the Supreme Court's decision would allo w for theChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 59 rule revision to be done in light of the high court's final decision in that case, rather than in a piecemeal fashion. Additionally, it is our understanding that the Continuing Resolution passed by Congress extends the moratorium on requiring NPDES permits for forest roads until March, 2013, so there is not an urgent need for the EPA to finaliz e this rule ahead of the Supreme Court decision.

Response Please refer to Response 4 and Response 5. Refer also to the preamble to today's rule.



# Comment ID 0248

- A1.001.002

Author Name: Poling Jan Organization: American Forest & Paper Association (AF&PA) Issue Category: 5 Given the potential significant implications of the Ninth Circuit's decision, AF&PA understands the EPA's goal of solidifying its long

- standing position that discharges from forest roads do not require CWA National Pollution Di scharge Elimination System (NPDES) permits. However, we strongly urge the EPA to defer action on the Proposed Rule until the U.S. Supreme Court complete s its
review of the Ninth Circuit's decision.

The United States, a multitude of state Attorneys Genera l, those in the fiber supply chain, and others agree that the Ninth Circuit's decision is incorrect and that forest road stormwater discharges should not require NPDES permits. In fact, the United States stated in its brief filed with the U.S. Supreme Court that the Ninth Circuit "misinterpreted both of the EPA regulations at issue in this case. Properly construed, each of those rules independently dictates the conclusion that NPDES permits are not required for the discharges a t issue in this case" (Brief o f the United States as Amicus Curiae Supporting Petitioners, at 11). Thus, the matters covered by the Proposed Rule are directly at issue in the matters being considered by the Supreme Court. If the Supreme Court agrees that the Ninth Circui t erred and

vac ates the decision, the need for further rulemaking could be alleviated. In any event, the Supreme Court could provide further clarity on whether forest roads are point sources or discharges from forest roads are discharges associated with industrial activi ty. If EPA proceeds with rulemaking prior to the Supreme Court's decision, it may be forced to revise the rulemaking to address any inco nsistencies with the Supreme Court's decision. Moreover, proceeding at this time will require EPA to develop regulations around an erroneous decision that constrains the agency's decision making authority.. Finally, if EPA finalizes this rulemaking, it is almost certain that the final rule will be litigated before the Ninth Circuit, causing continued confusion to owners and users of these roads, disruption to the fiber supply chain, and unnecessary litigation expense.

Response Please refer to Response 4 and Response 5. Refer also to Response 7, Response 8, and the preamble to today's rule.



# Comment ID 0248

- A1.001.005

Author Name: Poling Jan Organization: American Forest & Paper Association (AF&PA) Issue Category: 5 In summary, AF&PA requests that EPA wait until the U.S. Supreme Court completes its review of the NEDC v. Brown decision. Tha tChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 60 decision could provide t he needed certainty regarding whether forest roads are point or non

- point sources or whether stormwater discharges from such roads are industrial activities. Depending on the Court's ruling, further regulatory action may be unnec essary. If the Supreme Cour t's ruling requires additional regulatory action, EPA will have the benefit of the Supreme Court's direction as it proceeds with its rulemaking. Such an approach will avoid expenditure of unnecessary resources and the potential need for further regu latory revisions to be consistent with the Supreme Court's decision.

Response Please refer to Response 4 and Response 5. Refer also to the preamble to today's rule.



# Comment ID 0249

- A1.001.003

Author Name: Howe Paul Organization: Virginia Forestry Association (VFA) Issue Category: 5 However, we urge you to delay your final rule until the Ninth Circuit opinion is reviewed by the U.S. Supreme Court.

Response Please refer to Response 4.



# Comment ID 0249

- A1.001.005

Author Name: Howe Paul
Or ganization: Virginia Forestry Association (VFA) Issue Category: 5 The most prudent course is for EPA to await the result of the Supreme Court's review.

Forest owners and forestry businesses need certainty on this issue. VFA highly encourages EPA to delay its decision on this r ule while we await the Supreme Court's ruling.

Response Please refer to Response 4 and Response 5.



# Comment ID 0251

- A1.001 .003

Author Name: Keough Shawn Organization: Associated Logging Contractors of Idaho (ALC

- Idaho) Issue Category: 5 The proposed revisions to the Phase I stormwater rule are an appropriate proposed response to the NEDC v. Brown decision, alt hough
the ALC

- Idaho believes that EPA should not finalize the Proposed Rule while review of that Ninth Circuit opinion is pending before th eChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 61 U.S. Supreme Court.

Response Please refer to Response 4.



# Comment ID 0251

- A1.001.005

Author Name: Keough Shawn Organ ization: Associated Logging Contractors of Idaho (ALC

- Idaho) Issue Category: 5 For all these reasons, it would be appropriate for EPA to await the result of the Supreme Court's review.

Response Please refer to Response 4.



# Comment ID 0252

- A1.001.004

Author Name: Brandt Wayne Organization: Minnesota Forest Industries (MFI) Issue Category: 5 MFI believes that EPA should not finalize the Proposed Rule while review of that Ninth Circuit opinion is pending before the U.S. Supreme Court , however. It is our understanding that the current Continuing Resolution extends the provisions of the FY 2012 appropriations bill, including the moratorium on issuance of NPDES permits for logging roads, until March, 2013. Therefore, there is
no need f or EPA to act at this time. We urge that revisions to the stormwater rules for forest roads await a decision by the U.S. Sup reme Court and believe rule revision can best be done in light of the high court's final decision in that case, rather than in a p i ecemeal fashion.

Response Please refer to Response 4. Refer also to the preamble to today's rule.



# Comment ID 0253

- A1.001.003

Author Name: Gustafson Earl Organization: Wisconsin Paper Council (WPC) Issue Category: 5 However, the WPC respectfully urges the EPA to wait for a ruling from the U.S. Supreme Court before finalizing the Proposed Rule. The Supreme Court has granted certiorari. Depending on the scope of its ruling, the Supreme Court can provide a measure of regula tory certainty to stakeholders which the EPA cannot.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 62 Response Please refer to Response 4 and Response 5.



# Comment ID 0253

- A1.001.006

Author Name: Gustafson Earl Organization: Wisconsin Paper Council (WPC) Issue Category: 5 Inasmuch as the point source, nonpoint source and Phase I issues are pending before the Supreme Court, the WPC respectfully urges the EPA to refrain from all regulatory decision making related to forest roads until the Court issues its decision on the these i mportant questions.

Resp onse Please refer to Response 4, Response 7, and Response 8.



# Comment ID 0255

- A1.001.003

Author Name: Moon C. Organization: Issue Category: 5 However, I would urge you to delay your final rule while the Ninth Circuit opinion is pending before the U.S. Supreme Court. Forest owners need certainty on this issue, and additional regulations on this issue create uncertainty while the court case is pend ing.

Response Please refer to Response 4 and Response 5.



# Comment ID 0255

- A1.001.007

Author Name: Moon C. Organization: Issue Category: 5 Private forest owners need certainty on this issue, and I encourage you to delay your decision on this rule while we await the Supreme Court's ruling, which could be relevant to the Proposed Rule and whether the Proposed Rule is even necessary.

Response Please refer to Response 4 and Response 5.



# Comment ID 0256

- A1.001.003Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 63 Author Name: Bain J.P. Organization: Issue Category: 5 However, I would urge you to delay your final rule until while review of the Ninth Circuit opinion is pending before the U.S. Supreme Court. Family forest owners need certainty on this issue, and additional regulations on this issue create uncertainty while t he court case is pending.

Response Please refer to Response 4 and Response 5.



# Comment ID 0256

- A1.001.007

Author Name: Bain J.P. Organization: Issue Category: 5 Family forest owners like myself need certainty on this issue, and I encourage you to delay your decision on this rule while we await the Supreme Court's ruling, which could be relevant to the Proposed Rule and whether the Proposed Rule is even necessary.

Response Please refer to Response 4 and Response 5.



# Comment ID 0257

- A1.001.003

Author Name: Saloom Salem Organization: Saloom Properties, LLC Issue Category: 5 However, I would urge you to delay your final rule while review of the Ninth Circuit opinion is pending before the U.S. Supre me Court. Family forest owners need certainty on this issue, and additional regulations on this issue create uncertainty while the court case is pending.

Response Please refer to Response 4 and Response 5.



# Comment ID 0257

- A1.001.007

Author Name: Saloom Salem Organization: Saloom Properties, LLC Issue Category: 5 Family forest owners like myself need certainty on this issue, and I encourage you to delay your decision on this rule while we await theChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 64 Supreme Court's ruling, which could be relevant to the Proposed Rule and whether the Proposed Rule is even necessary.

Response Please refer to Response 4 and Response 5.



# Comment ID 0258

- A1.001.003

Author Name: McNitt Kristina Organization: Oregon Forest Industries Council (OFIC) Issue Category: 5 The proposed revisions to the Phase I stormwater rule are, with minor modification, an appropriate proposed response to the N EDC v. Brown decision, although OFIC believes that EPA should not finalize the Proposed Rule while review of that Ninth Circuit opi nion is pending before the U.S. Supreme Court.

As EPA recognizes in the Proposed Rule (at 77 Fed. Reg. 53835, n.1), the Supreme Court is considering issues beyond the Phase I stormwater program in its review of the Ninth Circuit's decision, particularly the question of whether forest roads are point sources. Thus, the scope of the Supreme Court's ruling could be relevant to the Proposed Rule and whether the Proposed Rule is even ne cessary. Specifically, if the Supreme Court upholds the 1976 Silvicultural Rule and rules that forest roads are a nonpoint source, then there is no further need for EPA to consider forest roads under any aspect of the section 402(p) stormwater program. In addition, there w ould be no need for a rulemaking on whether discharges fr om forest roads are associated with industrial activity and require NPDES permits. Moreover, the Supreme Court may provide further clarity or guidance on the Ninth Circuit's ruling on the Phase I regulations. Finally, it is highly likely that a final rule excluding forest roads from Phase I permitting will be subject to litigation in the Ninth Circuit, which would undermine any regulatory certainty pending the outcome of the Supreme Court case. For all these reasons, it would be ap propriate
for EPA to await the result of the Supreme Court's review.

Response Please refer to Response 4, Response 5, and Response 6. Refer also to Response 7, Response 8, and the preamble to the final r ule.



# Comment ID 0260

- A1.001.003

Author Name: Greig George Organization: Pennsylvania Department of Agriculture (PA DA) Issue Category: 5 However, we believe that a better approach would be to delay this proposed rulemaking until the conclusion of the pending rev iew of NEDC v. Brown by the United States Supreme Court. The Court's decision could render the need for a new rule moot, or cause a different consideration of what a new rule should actually say. This approach would avoid the potential for any new litigatio n under the rulemaking process before the Court's decision is even known.

ResponseChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 65 Please refer to Response 4 and Response 5.



# Comment ID 0261

- A1.001.004

Author Name: Imbergamo Bill Organization: Federal Forest Resource Coalition (FFRC) Issue Category: 5 However, FFRC believes that EPA should not finalize the Proposed Rule while review of that Ninth Circuit opinion is pending before the U.S. Supreme Court. It is our understanding that the current Continuing Resolution extends the provisions of the FY 2012 appropriations bill, including the mor atorium on issuance of NPDES permits for logging roads, until March, 2013. Therefore, there is no need for EPA to act at this time. We urge that revisions to the stormwater rules for forest roads await a decision by the U.S . Supreme
Court. We believe rule revision can best be done in light of the high court's final decision in that case, rather than in a piecemeal fashion.

Response Please refer to Response 4, Response 5, Response 6, and the preamble to the final rule.



# Comment ID 0263

- A1.001.003

Au thor Name: Schmidt David Organization: Schmidt Family Forest LLC Issue Category: 5 I would, however, urge you to delay your final rule until the Supreme Court renders a decision on its review of the Ninth Circuit Opinion.

Response
Please refer to Response 4.



# Comment ID 0264

- A1.001.003

Author Name: Magruder John Organization: Magruder Family Tree Farm Issue Category: 5 However, I would urge you to delay your final rule until while review of the Ninth Circuit opinion is pending before the U.S. Supreme Court. Family forest owners need certainty on this issue, and additional regulations on this issue create uncertainty while t he court case is pending.

Response Please refer to Response 4 and Response 5. Refer also to Response 13.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 66 

# Comment ID 0264

- A1.001.007

Author Name: Magruder John Organization: Magruder Family Tree Farm Issue Category: 5 Finally, family forest owners like myself need certainty on this issue, and I encourage you to delay your decision on this ru le while we
await the Supreme Court's ruling, which could be relevant to the Proposed Rule and whether the Proposed Rule is even necessary.

Response Please refer to Response 4 and Response 5.



# Comment ID 0265

- A1.001.003

Author Name: Pierce Josiah Organization: The Pierce Place Issue Category: 5 However, I would urge you to delay your final rule while review of the Ninth Circuit opinion is pending before the U.S. Supre me Court. Family forest owners need certainty on this issue, and additional regulations on this i ssue create uncertainty while the court case is pending.

Response Please refer to Response 4 and Response 5. Refer also to Response 13.



# Comment ID 0265

- A1.001.007

Author Name: Pierce Josiah Organization: The Pierce Place Issue Category: 5 Family forest owners like myself need certainty on this issue, and I encourage you to delay your decision on this rule while we await the Supreme Court's ruling, which could be relevant to the Proposed Rule and whether the Proposed Rule is even necessary.

Response Please refer to Response 4 and Response 5.



# Comment ID 0266

- A1.001.003

Author Name: Goergen Jr. Michael Organization: Society of American Foresters (SAF) Issue Category: 5 3. While we support the intent of the proposed rule, we question the need to move forward with it now in light of the pending USChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 67 Supreme Court review of this issue. Since the 9th Circuit Court remanded this case back to District Court for further conside rations, moving forward with rulemaking at this time may l ead to additional confusion and uncertainty. SAF strongly recommends that this final rulemaking be postponed pending the outcome of the Supreme Court review.

Response Please refer to Response 4 and Response 5. Refer also to the preamble to today's rule.



# Comment ID 0266

- A1.001.007

Author Name: Goergen Jr. Michael Organization: Society of American Foresters (SAF) Issue Category: 5 As stated previously, our members working in forests across the country seek certainty from the EPA in this rule making process. The best way to do this is to delay this rulemaking pending the outcome of the Supreme Court decision.

Response Please refer to Response 4 and Response 5.



# Comment ID 0268

- A1.001.007

Author Name: Jane F. Severt Elroy Zemke Organization: Wisconsin County Forests Association (WCFA) Issue Category: 5 For this reason, and those listed above, we encourage EPA to slow the rule making process until the Supre me Court completes its review of the Ninth Circuit ruling in NEDC v Brown 1063 F.3d 1176 (9th Cir. 2011).

Response Please refer to Response 4. Refer also the preamble to the final rule.



# Comment ID 0271

- A1.001.003

Author Name: Edman George Organization: Edman Company Issue Category: 5 The proposed revisions to the Phase I stormwater rule are an appropriate proposed response to the NEDC v. Brown decision, alt hough Edman Company believes that EPA should not finalize the Proposed Rule while review of that Ninth Circuit opinion is pending before the U.S. Supreme Court.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 68 Response Please refer to Response 4. Refer also to Response 1 and to the preamble to the final rule.



# Comment ID 0271

- A1.001.005

Author Name: Edman George Organization: Edman Company Issue Category: 5 For all these reasons, it would be appropriate for EPA to await the result of the Supreme Court's review.

Response Please refer to Response 4.



# Comment ID 0272

- A1.001.003

Author Name: Case Michael Organization: The Westervelt Company Issue Category: 5 The proposed revisions to the Phase I storm water rule are an appropriate proposed response to the NDEC v. Brown decision, al though The Westervelt Company believes that EPA should not finalize the Proposed Rule while review of that Ninth Circuit opinion is pending before the U.S. Supreme Court.

Response Please refer to Response 4.



# Comment ID 0272

- A1.001.005

Author Name: Case Michael Organization: The Westervelt Company Issue Category: 5 For all these reasons, it would be appropriate for EPA to await the result of the Supreme Court's review.

Response Please refer to Response 4.



# Comment ID 0275

- A1.001.003

Author Name: Olszewski Robert Organization: Plum CreekChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 69 Issue Category: 5 The proposed revisions to the Phase I storrnwater rule are an appropriate proposed response to the NEDC v. Brown decision, al though [Organization) believes that EPA should not finalize the Proposed Rule while review of that Ninth Circuit opinion is pending before the U.S. Supreme Court.

Response Please refer to Response 4.



# Comment ID 0275

- A1.001.005

Author Name: Olszewski Robert Organization: Plum Creek Issue Category: 5 For all these reasons, it would be appropriate for EPA to await the result of the Supreme Court's review.

Response Please refer to Response 4.Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 

# Issue Category 6 : Assertions that the EPA Should Seek Legislative Support to Specify That Permits Are Not Required for Stormwater Discharges From Logging Roads

Pages 2-70 to 2 -71

Response to Public Comments

Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads

November 30, 2012

Docket #: EPA

- HQ -OW- 2012

- 0195Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 70 

# 6

. ASSERTIONS THAT THE EPA SHOULD SEEK LEGISLATIVE SUPPORT TO SPECIFY THAT PERMITS ARE NOT REQUIRED FOR STORMWATER DISCHARGES FROM LOGGING ROADS

Comment ID 0199

- A1.001.007

Author Name: Owen Wib Organization: North Carolina Department of Agriculture and Consumer Services (NC DACS) Issue Category: 6 While the USEPA's effort to clarity the intent of the NPDES rules is a noble and worthwhile effort, only through Congressiona l action to fully and unequivocally exempt silvicultural

- related activities from NPDES permitting will the forestry community be as sured oflong

- term regulatory visibility and stability.

Response Please refer to Response 4. Refer also to Response 5 and to the preamble to today's rule.



# Comment ID 0206

- A1.001.003

Author Name: Beardsley Michael Organization: Professional Loggin g Contractors of Maine (PLCM) Issue Category: 6 Unfortunately, reliance on this policy has been interrupted by the U.S. Court of Appeals for the Ninth Circuit in Northwest Environmental Defense Center v. Brown, as the agency is well aware. We are disturbed that EPA has neither supported review of this decision by the Supreme Court nor sought relief from Congress to provide the necessary legal certainty but has instead embark ed on an uncertain administrative path.

Response Please refer to Response 4. Refer also to the preamble to the final rule.



# Comment ID 0268

- A1.001.009

Author Name: Jane F. Severt Elroy Zemke Organization: Wisconsin County Forests Association (WCFA) Issue Category: 6 Finally, WCFA strongly encourag es EPA to seek relief from the Ninth Circuit Court of Appeals decision in Defense Center v. Brown by supporting legislative action through Congress. It is our opinion that only a congressional act will remove any uncertainty r egarding NPDES permit requirem ents for logging roads.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 71 Response Please refer to Response 4 and Response 5.Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 

# Issue Category 7: Assertions that Revision Does Not Address Legal Uncertainty

Pages 2-72 to 2 -89

Response to Public Comments

Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads

November 30, 2012

Docket #: EPA

- HQ -OW- 2012

- 0195Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 72 

# 7

. ASSERTIONS THAT REVISION DOES NOT ADDRESS LEGAL UNCERTAINTY

Comment ID 0198

- A1.001.004

Author Name: Dructor Daniel Organization: American Loggers Council (ALC) Issue Category: 7 As EPA recognizes in the Proposed Rule (at 77 Fed. Reg. 53835, n.1), the Supreme Court is considering issues beyond the Phase I stormwater program in its review of the Ninth Circuit's decision, particularly the question of whether forest roads are point sources. Thus, the scope of the Supreme Court's ruling could be relevant to the Proposed Rule and whether the Proposed Rule is even ne cessary. Specifically, if the Supreme Court upholds the 1976 Silvicultural Rule and rules that forest roads are a nonpoint source, then there is no further need for EPA to consider forest roads under any aspect of the section 402(p) stormwater program. In addition, there w ould be no need for a rulemaking on whether discharges from forest roads are associated with industrial activity and require NPDES permits. Moreover, the Supreme Court may provide further clarity or guidance on the Ninth Circuit's ruling on the Phase I regulations. Finally, it is highly likely that a final rule excluding forest roads from Pha se I permitting will be subject to litigation in the Ninth Circuit, which would undermine any regulatory certainty pending the outcome of the Supreme Court case.

Response Please refer to Response 5. Refer also to Response 7, Response 8, and the preamble to today's rule.



# Comment ID 0200

- A1.001.004

Author Name: Crawford Cam Organization: South Carolina Forestry Association (SCFA) Issue Category: 7 As EPA recognizes in the Proposed Rule (at 77 Fed. Reg. 53835, n.1), the Supreme Court is considering issues beyond the Phase I stormwater program in its review of the Ninth Circuit's decision, particularly the question of whether forest roads are point sources. Thus, the sco pe of the Supreme Court's ruling could be relevant to the Proposed Rule and whether the Proposed Rule is even necessary. Specifically, if the Supreme Court upholds the 1976 Silvicultural Rule and rules that forest roads are a nonpoint source, then there is no further need for EPA to consider forest roads under any aspect of the section 402(p) stormwater program. In addition, there w ould be no need for a rulemaking on whether discharges from forest roads are associated with industrial activity and require NP DES permits. Moreover, the Supreme Court may provide further clarity or guidance on the Ninth Circuit's ruling on the Phase I regulations. finally, it is highly likely that a final rule excluding forest roads from Phase I permitting will be subject to liti gation in the Ninth Circuit, which would undermine any regulatory certainty pending the outcome of the Supreme Court case.

Response Please refer to Response 5. Refer also to Response 8 and to the preamble to today's rule.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 73 

# Comment ID 0201

- A1.001.004

Author Name: Vandersteen C.A. Organization: The Louisiana Forestry Association (LFA) Issue Category: 7 As EPA recognizes in the Proposed Rule (at 77 Fed. Reg. 53835, n.1), the Supreme court is considering issues beyond the Phase I

stor mwater program in its review of the Ninth Circuit's decision, particularly the question of whether forest roads are point sou rces. The scope of the Supreme Court's ruling could be relevant to the Proposed Rule raising the question whether the Proposed Rul e is even

necessary.

Specifically, if the Supreme court upholds the 1976 Silvicultural Rule and rules that forest roads are a nonpoint source, the n there is no further need for EPA to consider forest roads under any aspect of the section 402(p) stormwate r program. There would be no need for a rulemaking on whether discharges from forest roads are associated with industrial activity and require NPDES permits. More over, the Supreme Court may provide further clarity or guidance on the Ninth circuit's ruling on the Phase I regulations. It is highly likely that a final rule excluding forest roads from Phase I permitting will be subject to litigation in the Ninth circuit, which would u ndermine any regulatory certainty pending the outcome of the Supreme Court case.

Response Please refer to Response 4 and Response 5. Refer also to Response 8 and to the preamble to today's rule.



# Comment ID 0202

- A1.001.004

Author Name: Slocum, Jr. Robert Organization: NC Forestry Association (NCFA) Issue Category: 7 As EPA recognizes in the Proposed Rule (at 77 Fed. Reg. 53835, n.1), the Supreme Court is considering issues beyond the Phase I stormwater program in its review of the Ninth Circuit's decision, particularly the question of whether forest roads are point so urces. Thus, the scope of the Supreme Court's ruling could be relevant to the Proposed Rule and whether the Proposed Rule is even ne cessary. Specifically, if the Supreme Court upholds the 1976 Silvicultural Rule and rules that forest roads are a nonpoint source, then there is no further need for EPA to consider forest roads under any aspect of the section 402(p) stormwater program. In addition, there would be no need for a rulemaking on whether discharges from forest roads are associated with industrial activity and require NPDES permits. Moreover, the Supreme Court may provide further clarity or guidance on the Ninth Circuit's ruling on the Phase I regulations. Finally, it is highly likely that a final rule excluding forest roads from Phase I permittin g will be subject to litigation in the Ninth Circuit, which would undermine any regulatory certainty pending the outcome of the Supreme Court case.

Response Please refer to Response 5. Refer also to Response 7, Response 8, and the preamble to today's rule.



# Comment ID 0204

- A1.001.004

Author Name: Harrelson, Sr. DavidChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 74 Organization: St. Joe Timberland Company of Delaware, LLC Issue Category: 7 As EPA recognizes in the Proposed Rule (at 77 Fed. Reg. 53835; n.1), the Supreme Court is considering issues beyond the Phase I stormwater program in its review of the Ninth Circuit's decision, particularly the question of whether forest roads are point sources. Thus, the scope of the Supreme Court's ruling could be relevant to the Proposed Rule and whethe r the Proposed Rule is even necessary. Specifically, if the Supreme Court upholds the 1976 Silvicultural Rule and rules that forest roads are a nonpoint source, the n there is no further need for EPA to consider forest roads under any aspect of the section 402(p) stormwater program. In addition, there would be no need for a rulemaking on whether discharges from forest roads are associated with industrial activity and require NPDES permi ts. Moreover, the Supreme Court may provide further clarity or guidance on the Ninth Circuit's ruling on the Phase I regulations. Finally, it is highly likely that a final rule excluding forest roads from Phase I permitting will be subject to litigation in the Ninth Circuit, which would undermine any regulatory certainty pending the outcome of the Supreme Court case.

Response Please refer to Response 4 and Response 5. Refer also to Response 7, Response 8, and the preamble to today's rule.



# Comment ID 0205

- A1.001.005

Author Name: Schuler Galen Organization: Green Diamond Resource Company Issue Category: 7 As EPA recognizes in the Proposed Rule (at 77 Fed. Reg. 53835, n.1), the Supreme Court is considering issues beyond the Phase I stormwater program in its review of the Ninth Circuit's decision, particularly the question of whether forest roads are point sources. Thus, the scope of the Supreme Court's ruling could be relevant to the Proposed Rule and whether the Proposed Rule is even ne cessary. Specifically, if the Supreme Court follows the 1976 Silvicultural Rule and holds that forest roads are a nonpoint source, then there is no further need for EPA to consider forest roads under any aspect of the section 402(p) stormwater program. In addition, there w ould be no need for a rulemaking on whether discharges from fo rest roads are associated with industrial activity and require NPDES permits. Moreover, the Supreme Court may provide further clarity or guidance on the Ninth Circuit's ruling on the Phase I regulations. Finally, it is highly likely that a final rule exclu ding forest roads from Phase I permitting will be subject to litigation in the Ninth Circuit, which would undermine any regulatory certainty pending the outcome of the Supreme Court case.

Response Please refer to Response 4 and Response 5. Refer also to Response 7, Response 8, and the preamble to today's rule.



# Comment ID 0207

- A1.001.004

Author Name: Hufford Ronald Organization: Texas Forestry Association (TFA) Issue Category: 7
As EPA recognizes in the Proposed Rule (at 77 Fed. Reg. 53835, n.1), the Supreme Court is considering issues beyond the Phase I stormwater program in its review of the Ninth Circuit's decision, particularly the question of whether forest roads are point sources.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 75 Thus, the scope of the Supreme Court's ruling could be relevant to the Proposed Rule and whether the Proposed Rule is even ne cessary. Specifically, if the Supreme Court upholds the 1976 Silvicultural Rule and rules that forest roads are a nonpoint source , then there is no further need for EPA to consider forest roads under any aspect of the section 402(p) stormwater program. In addition, there would be no need for a rulemaking on whether discharges from forest roads are associated with industrial activity and require NPDES permits. Moreover, the Supreme Court may provide further clarity or guidance on the Ninth Circuit's ruling on the Phase I regulations. Finally, it is highly likely that a final rule excluding forest roads from Phase I permitting will be subject to litigation in the Ninth Circuit, which would undermine any regulatory certainty pending the outcome of the Supreme Court case.

Response Please refer to Response 4 and Response 5. Refer also to Response 7, Response 8, and the preamble to today's rule.



# Comment ID 0208

- A1.001.004

Author Name: Robertson Alan Organization: Pfalzerwald Tree Farm Issue Category: 7 While the Proposed rule to move forestry activities out of the "industrial activities" category makes sense, the best outcome to provide certainty is validation by the courts or by Congress that forest roads should be treated as nonpoint sources of pollution und er the Clean Water Act. This ensures that my forest roads will not be subject to NPDES permits.

Response Please refer to Response 4 and Response 5. Refer also to Response 7, Response 8, and the preamble to today's rule.



# Comment ID 0209

- A1.001.004

Author Name: Qualman Robert Organization: Qualman Tree Farm Issue Category: 7 While the Proposed rule to move forestry activities out of the "industrial activities" category makes sense, the best outcome to provide certainty is validation by the courts or by Congress that forest roads should be treated as nonpoint sources of pollution und er the Clean
Water Ac t. This ensures that my forest roads will not be subject to NPDES permits.

Response Please refer to Response 4 and Response 5. Refer also to Response 7, Response 8, and the preamble to today's rule.



# Comment ID 0210

- A1.001.004

Author Name: Hulka Bryan Organization: Slade Creek LLCChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 76 Issue Category: 7 While the Proposed rule to move forestry activities out of the "industrial activities" category makes sense, the best outcome to provide certainty is validation by the courts or by Congress that forest roads should be treated as nonpoint sources of pollution under the Clean Water Act. This ensures that my forest roads will not be subject to NPDES permits.

Response Please refer to Response 4 and Response 5. Refer also to Response 7, Response 8, and the preamble to today's rule.



# Comment ID 0211

- A1.001.005

Author Name: Lyskava Paul Organization: Pennsylvania Forest Products Association (PFPA) Issue Category: 7 As EPA recognizes in the Proposed Rule (at 77 Fed. Reg. 53835, n.1), the Supreme Court is considering issues beyond the Phase I stormwater program in its review of the Ninth Circuit's decision, particularly the question of whether forest roads are point so urces. Thus, the scope of the Supreme Court's ruling could be relevant to the Proposed Rule and whether the Proposed Rule is even ne cessary.

Specifically, if the Supreme Court upholds the 1976 Silvicultural Rule and rules that forest roads are a nonpoint source, then there is no further need for EPA to consider forest roads under any aspect of the section 402(p) stormwater program. In addition, there w ould be no need for a rulemaking on whether discharges from forest roads are associated with industrial a ctivity and require NPDES permits. Moreover, the Supreme Court may provide further clarity or guidance on the Ninth Circuit's ruling on the Phase I regulations. Finally, it is highly likely that a final rule excluding forest roads from Phase I permitting w ill be subject to litigation in the Ninth Circuit, which would undermine any regulatory certainty pending the outcome of the Supreme Court case.

Response Please refer to Response 4 and Response 5. Refer also to Response 7, Response 8, and the preamble to today's rule.



# Comment ID 0212

- A1.001.004

Author Name: Hawkinson Deb Organization: Forest Resources Association Inc. (FRA) Issue Category: 7
As EPA recognizes in the Proposed Rule (at 77 Fed. Reg. 53835, n.1), the Supreme Court is considering issues beyond the Phase I stormwater program in its review of the Ninth Circuit's decision, particularly the question of whether forest roads are point sources. Thus, the scope of the Supreme Court's ruling could be relevant to the Proposed Rule and whether the Proposed Rule is even ne cessary. Specifically, if the Supreme Court upholds the 1976 Silvicultural Rule and rules that forest roads are a nonpoint source, then there is no further need for EPA to consider forest roads under any aspect of the section 402(p) stormwater program. In addition, there w ould be no need for a rulemaking on whether discharges from forest roads are associated with industrial activity a nd require NPDES permits. Moreover, the Supreme Court may provide further clarity or guidance on the Ninth Circuit's ruling on the Phase I regulations. Finally, it is highly likely that a final rule excluding forest roads from Phase I permitting will be su bject to litigation in the Ninth Circuit, whichChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 77 would undermine any regulatory certainty pending the outcome of the Supreme Court case.

Response Please refer to Response 4 and Response 5. Refer also to Response 7, Response 8, and the preamble to today 's rule.



# Comment ID 0213

- A1.001.004

Author Name: Drechsel Russell Organization: Madison Paper Industries Issue Category: 7 As EPA recognizes in the Proposed Rule (at 77 Fed. Reg. 53835, n.1), the Supreme Court is considering issues beyond the Phase I stormwater program in its review of the Ninth Circuit's decision, particularly the question of whether forest roads are point sources. Thus, the scope of the Supreme Court's ruling could be relevant to the Proposed Rule and whether the Proposed Rule is even necessary. Specifically, if the Supreme Court upholds the 1976 Silvicultural Rule and rules that forest roads are a nonpoint source, the n there is no further need for EPA to consider forest roads under any aspect of the section 402(p) stormwater progr am. In addition, there would be no need for a rulemaking on whether discharges from forest roads are associated with industrial activity and require NPDES permi ts. Moreover, the Supreme Court may provide further clarity or guidance on the Ninth Circuit's ruling on the Phase I regulations. Finally, it is highly likely that a final rule excluding forest roads from Phase I permitting will be subject to litigation in the Ninth Circuit, which would undermine any regulatory certainty pending the outcome of the Supreme Court case.

Response Please refer to Response 4 and Response 5. Refer also to Response 7, Response 8, and the preamble to today's rule.



# Comment ID 0214

- A1.001.004

Author Name: Bush J.R. Organization: Virginia Forest Products Association (VFPA) Issue Category: 7 As EPA recognizes in the Proposed Rule (at 77 Fed. Reg. 53835, n.1), the Supreme Court is considering issues beyond the Phase I stormwater program in its review of the Ninth Circuit's decision, particularly the question of whether forest roads are point so urces. Thus, the scope of the Supreme Court's ruling could be relevant to the Proposed Rule and whether the Proposed Rule is even ne cessary. Specifically, if the Supreme Court upholds the 1976 Silvicultural Rule and rules that forest roads are a nonpoint source, then there is no further need for EPA to consider forest roads under any aspect of the section 402(p) stormwater program. In addition, there w ould be no need for a rulemaking on whether discharges from forest roads are associated with industrial act ivity and require NPDES permits. Moreover, the Supreme Court may provide further clarity or guidance on the Ninth Circuit's ruling on the Phase I regulations.

Finally, it is highly likely that a final rule excluding forest roads from Phase I permitting w ill be subject to litigation in the Ninth Circuit, which would undermine any regulatory certainty pending the outcome of the Supreme Court case.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 78 Response Please refer to Response 4 and Response 5. Refer also to Response 7, Response 8, and the preamble to today's rule.



# Comment ID 0215

- A1.001.004

Author Name: ZumBahlen Bruce Organization: Z Acres Tree Farm Issue Category: 7 While the Proposed rule to move forestry activities out of the "industrial activities" category makes sense, the best outcome to provide certainty is validation by the courts or by Congress that forest roads should be treated as nonpoint sources of pollution und er the Clean Water Act. This ensures that my forest roads will not be subject to NPDES permits.

Response Please refer to Response 4 and Response 5.



# Comment ID 0220

- A1.001.004

Author Name: Lange Walter Organization: Lange Tree Farm Issue Category: 7 While the Proposed rule to move forestry activities out of the "industrial activities" category makes sen se, the best outcome to provide certainty is validation by the courts or by Congress that forest roads should be treated as nonpoint sources of pollution und er the Clean Water Act. This ensures that my forest roads will not be subject to NPDES permits.

Response Please refer to Response 5. Refer also to Response 7 and Response 8.



# Comment ID 0221

- A1.001.004

Author Name: Stuber IV Daniel Organization: Forest2Market, Inc. Issue Category: 7 As EPA recognizes in the Proposed Rule (at 77 Fed. Reg. 53835, n.1), the Supreme Court is considering issues beyond the Phase I stormwater program in its review of the Ninth Circuit's decision, particularly the question of whether forest roads are point sources. Thus, the scope of the Supreme Court's ruling cou ld be relevant to the Proposed Rule and whether the Proposed Rule is even necessary. Specifically, if the Supreme Court upholds the 1976 Silvicultural Rule and rules that forest roads are a nonpoint source, the n there is no
further need for EPA to consider forest roads under any aspect of the section 402(p) stormwater program. In addition, there would be no need for a rulemaking on whether discharges from forest roads are associated with industrial activity and require NPDES permi ts. Moreover, the Supreme C ourt may provide further clarity or guidance on the Ninth Circuit's ruling on the Phase I regulations. Finally, it is highly likely that a final rule excluding forest roads from Phase I permitting will be subject to litigation in the Ninth Circuit, whichChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 79 w ould undermine any regulatory certainty pending the outcome of the Supreme Court case.

Response Please refer to Response 4 and Response 5. Refer also to Response 7, Response 8, and the preamble to today's rule.



# Comment ID 0222

- A1.001.004

Author Name: Ryder Allan Organization: Timber Resource Group, Inc. (TRG) Issue Category: 7 As EPA recognizes in the Proposed Rule (at 77 Fed. Reg. 53835, n.1), the Supreme Court is considering issues beyond the Phase I stormwater program in its review o f the Ninth Circuit's decision, particularly the question of whether forest roads are point sources. Thus, the scope of the Supreme Court's ruling could be relevant to the Proposed Rule and whether the Proposed Rule is even ne cessary. Specifically, if the Supreme Court upholds the 1976 Silvicultural Rule and rules that forest roads are a nonpoint source, then there is no further need for EPA to consider forest roads under any aspect of the section 402(p) stormwater program. In addition, there w ould be no

ne ed for a rulemaking on whether discharges from forest roads are associated with industrial activity and require NPDES permits

. Moreover, the Supreme Court may provide further clarity or guidance on the Ninth Circuit's ruling on the Phase I regulations. Fin ally, it is highly likely that a final rule excluding forest roads from Phase I permitting will be subject to litigation in the Ninth Circuit, which would undermine any regulatory certainty pending the outcome of the Supreme Court case.

Response
Pleas e refer to Response 4 and Response 5. Refer also to Response 7, Response 8, and the preamble to today's rule.



# Comment ID 0223

- A1.001.004

Author Name: Braswell Max Organization: Arkansas Forestry Association (AFA) Issue Category: 7 As EPA recognizes in the Proposed Rule (at 77 Fed. Reg. 53835, n.1), the Supreme Court is considering issues beyond the Phase I stormwater program in its review of the Ninth Circuit's decision, particularly the question of whether forest roads are point sources. Thus, the scope of the Supreme Court's ruling could be relevant to the Proposed Rule and whether the Proposed Rule is even necessary. Specifically, if the Supreme Court upholds the 1976 Silvicultural Rule and rules that forest roads are a nonpoint source, the n there is no further need for EPA to consider forest roads under any aspect of the section 402(p) stormwater program. In addition, there w ould be no need for a rulemaking on whether discharges from forest roads are associated with industrial activity and require NPDES permits. Moreover, the Supreme Court may provide further clarity or guidance on the Ninth Circuit's ruling on the Phase I regulations. Finally, it is highly likely that a final rule excluding forest roads from Phase I permitting will be subject to l itigation in the Ninth Circuit, which would undermine any regulatory certainty pending the outcome of the Supreme Court case.

ResponseChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 80 Please refer to Response 4 and Response 5. Refer also to Response 7, Response 8, and the preamble to today's rule.



# Comment ID 0225

- A1.001.004

Author Name: Bryant John Organization: American Forest Management (AFM) Issue Category: 7 As EPA recognizes in the Proposed Rule (at 77 Fed. Reg. 53835, n.1), the Supreme Court considering issues beyond the Phase I stormwater prograrn in it's review of the Ninth Circuit's decision, particularly the question of whether forest roads are poi nt sources. The scope of the Supreme Court's ruling could be relevant to the Proposed Rule and whether the Proposed Rule is even ne cessary. Specifically, if the Supreme Court upholds the 1976 Silvicultural Rule and rules, that forest roads are a nonpoint source, th en there is no further need for EPA to consider forest roads under any aspect of the section 402(p) stormwater program. In addition, there would be need fOr a rulemaking on whether discharges from forest roads are associated with industrial activity .and require NPDES perm its - - the Supreme Court may provide further clarity or guidance on the Ninth Circuit's ruling on the Phase I regulations, Finally, it is highly likely that a final rule excluding forest roads from Phase I permitting will be subjectto litigation, in the Ninth Circuit which wou ld undermine any regulatory certainty pending the outcome of the Supreme Court case

.

Response Please refer to Response 4 and Response 5. Refer also to Response 7, Response 8, and the preamble to today's rule.



# Comment ID 0226

- A1.001.004

Author Name: Bauer Robert Organization: Kentucky Forest Industries Association (KFIA)
Issue Category: 7 As EPA recognizes in the Proposed Rule (at 77 Fed. Reg. 53835, n.1), the Supreme Court is considering issues beyond the Phase I stormwater program in its review of the Ninth Circuit's decision, particularly the question of whether forest road s are point sources. Thus, the scope of the Supreme Court's ruling could be relevant to the Proposed Rule and whether the Proposed Rule is even ne cessary. Specifically, if the Supreme Court upholds the 1976 Silvicultural Rule and rules that forest roads are a nonpoint source, then there is no further need for EPA to consider forest roads under any aspect of the section 402(p) stormwater program. In addition, there would be no need for a rulemaking on whether discharges from forest roads are associated wi th industrial activity and require NPDES permits. Moreover, the Supreme Court may provide further clarity or guidance on the Ninth Circuit's ruling on the Phase I regulations. Finally, it is highly likely that a final rule excluding forest roads from Pha se I permitting will be subject to litigation in the Ninth Circuit, which would undermine any regulatory certainty pending the outcome of the Supreme Court case.

Response Please refer to Response 4 and Response 5. Refer also to Response 7, Response 8, and the preamble to today's rule.



# Comment ID 0227

- A1.001.004Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 81 Author Name: Racliff Jr. J. Organization: Mississippi Forestry Association (MFA) Issue Category: 7
As EPA recognizes in the Proposed Rule (at 77 Fed. Reg. 53835, n.1), the Supreme Court is considering issues beyond the Phase I stormwater program in its review of the Ninth Circuit's decision, particularly the question of whether forest roads are point sources. Thus, the scope of the Supreme Court's ruling could be relevant to the Proposed Rule and whether the Proposed Rule is even ne cessary. Specifically, if the Supreme Court upholds the 1976 Silvicultural Rule and rules that forest roads are a nonpoint source, then there is no further need for EPA to consider forest roads under any aspect of the section 402(p) stormwater program. In addition, there w ould be no need for a rulemaking on whether discharges from forest roads are associated with industrial activity a nd require NPDES permits. Moreover, the Supreme Court may provide further clarity or guidance on the Ninth Circuit's ruling on the Phase I regulations. Finally, it is highly likely that a final rule excluding forest roads from Phase I permitting will be su bject to litigation in the Ninth Circuit, which would undermine any regulatory certainty pending the outcome of the Supreme Court case.

Response Please refer to Response 4 and Response 5. Refer also to Response 7, Response 8, and the preamble to today's rule.



# Comment ID 0228

- A1.001.004

Author Name: Johnson Andrew Organization: Graphic Packaging International (GPI) Issue Category: 7
As EPA recognizes in the Proposed Rule (at 77 Fed. Reg. 53835, n.1), the Supreme Court is considering issues beyond the Phase I stormwater program in its review of the Ninth Circuit's decision, particularly the question of whether forest roads are point sources. Thus, the scope of the Supreme Court's ruling could be relevant to the Proposed Rule and whether the Proposed Rule is even ne cessary. Specifically, if the Supreme Court upholds the 1976 Silvicultural Rule and rules that forest roads are a nonpoint source, then there is no further need for EPA to consider forest roads under any aspect of the section 402(p) stormwater program. In addition, there w ould be no need for a rulemaking on whether discharges from forest roads are associated with industrial activity a nd require NPDES permits. Moreover, the Supreme Court may provide further clarity or guidance on the Ninth Circuit's ruling on the Phase I regulations. Finally, it is highly likely that a final rule excluding forest roads from Phase I permitting will be su bject to litigation in the Ninth Circuit, which would undermine any regulatory certainty pending the outcome of the Supreme Court case.

Response Please refer to Response 4 and Response 5. Refer also to Response 7, Response 8, and the preamble to today 's rule.



# Comment ID 0230

- A1.001.005

Author Name: Godbout Kevin Organization: Weyerhaeuser Company Issue Category: 7 Finally, it is highly likely that a final rule excluding forest roads from Phase I permitting will be subject to litigation i n the Ninth Circuit,Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 82 which would undermine any regulatory certainty pending the outcome of the Supreme Court case. For all these reasons, it would be appropriate for EPA to await the result of the Supreme Court's review.

Response Please refer to Response 4 and Response 5. Refer also to the preamble to today's rule.



# Comment ID 0231

- A1.001.004

Author Name: Schnoor Candace Organization: John Deere Construction & Forestry Division Issue Category: 7 EPA recognizes in the Proposed Rule (at 77 Fed. Reg. 53835, n.1) that the Supreme Court is considering issues beyond the Phase I stormwater program in its review of the Ninth Circuit's decision, particularly the question of whether forest roads are point sources. Therefore, the scope of the Supreme Court's r uling could be relevant to the proposed rule and whether it is even necessary. Specifically, if the Supreme Court upholds the 1976 Silvicultural Rule and rules that forest roads are a nonpoint source, then there is no further need
for EPA to consider fores t roads under any aspect of the section 402(p) stormwater program. Additionally, there would be no need for a rulemaking on whether discharges from forest roads are associated with industrial activity and require NPDES permits. Moreove r, the Supreme Court may provide further clarity or guidance on the Ninth Circuit's ruling on the Phase I regulations. Finally, it is highly likel y that a final rule excluding forest roads from Phase I permitting will be subject to litigation in the Ninth Circuit, which wo uld undermine any regulatory certainty pending the outcome of the Supreme Court case.

Response Please refer to Response 4 and Response 5. Refer also to Response 7, Response 8, and the preamble to today's rule.



# Comment ID 0232

- A1.001.004

Author Name: Wright Vance Organization: Wright Forestry LLC Issue Category: 7 While the Proposed rule to move forestry activities out of the "industrial activities" category makes sense, the best outcome to provide certainty is validation by the courts or by Congress that forest roads should be treated as nonpoint sources of pollution under the Clean Water Act. This ensures that my forest roads will not be subject to NPDES permits.

Response Please refer to Response 4 and Response 5. Refer also to Respons e 7, Response 8, and the preamble to today's rule.



# Comment ID 0233

- A1.001.004

Author Name: Blosser MikeChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 83 Organization: Louisiana Pacific Corporation (LP) Issue Category: 7 As EPA recognizes in the Proposed Rule (at 77 Fed. Reg. 53835, n.1), the Supreme Court is considering issues beyond the Phase I stormwater program in its review of the Ninth Circuit's decision, particularly the question of whether forest roads are point sources. Thus, the scope of the Supreme Court's ruling could be relevant to the Proposed Rule and whether the Proposed Rule is even necessary. Specifically, if the Supreme Court upholds the 1976 Silviculture! Rule and rules that forest roads are a nonpoint source, the n there is no
further need for EPA to consider forest roads und er any aspect of the section 402(p) stormwater program. In addition, there would be no need for a rulemaking on whether discharges from forest roads are associated with industrial activity and require NPDES permi ts. Moreover, the Supreme Court may provide further clarity or guidance on the Ninth Circuit's ruling on the Phase I regulations.

Finally, it is highly likely that a final rule excluding forest roads from Phase I permitting will be subject to litigation i n the Ninth Circuit,
which would undermine any regulatory certainty pending the outcome of the Supreme Court case.

Response Refer to Response 4 and Response 5. Refer also to Response 7, Response 8, and the preamble to today's rule.



# Comment ID 0237

- A1.001.004

Author Name: Peter J. Heide Cindy Mitchell Organization: Washington Forest Protection Association (WFPA) Issue Category: 7 As EPA recognizes in the Proposed Rule (at 77 Fed. Reg. 53835, n.1), the Supreme Court is considering issues beyond the Phase I stormwater program in its revi ew of the Ninth Circuit's decision, particularly the question of whether forest roads are point sources. Thus, the scope of the Supreme Court's ruling could be relevant to the Proposed Rule and whether the Proposed Rule is even ne cessary. Specifically, if the Supreme Court upholds the 1976 Silvicultural Rule and rules that forest roads are a nonpoint source, then there is no further need for EPA to consider forest roads under any aspect of the section 402(p) stormwater program. In addition, there would be n o need for a rulemaking on whether discharges from forest roads are associated with industrial activity and require NPDES permi ts. Moreover, the Supreme Court may provide further clarity or guidance on the Ninth Circuit's ruling on the Phase I regulations. Finally, it is highly likely that a final rule excluding forest roads from Phase I permitting will be subject to litigation in the Ninth Circuit, which would undermine any regulatory certainty pending the outcome of the Supreme Court case.

Response Please refer to Response 4 and Response 5. Refer also to Response 7, Response 8, and the preamble to today's rule.



# Comment ID 0240

- A1.001.004

Author Name: Baumhoff Oscar Organization: Baumhoff & Company, LLC Issue Category: 7 While the Proposed rule to move forestry activities out of the "industrial activities" category makes sense, the best outcome to provideChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 84 certainty is validation by the courts or by Congress that forest roads should be treated as nonpoint sources of pollution und er the Clean Water Act. This ensures that my forest roads will not be subject to NPDES permits.

Response Please refer to Response 4 and Response 5. Refer also to Response 7, Response 8, and the preamble to today's rule.



# Comment ID 0244

- A1.001.004

Author Name: Carlson Eric Organization: Empire State Forest Products Association (ESFPA) Issue Category: 7 As EPA recognizes in the Proposed Rule (at 77 Fed. Reg. 53835, n.1), the Supreme Court is considering issues beyond the Phase I stormwater program in its review of the Ninth Circuit's decision, particularly the question of whether forest roads are point sources. Thus, the scope of the Supreme Court's ruling could be relevant to the Proposed Rule and whether the Proposed Rule is even ne cessary. Spe cifically, if the Supreme Court upholds the 1976 Silvicultural Rule and rules that forest roads are a nonpoint source, then t here is no further need for EPA to consider forest roads under any aspect of the section 402(p) stormwater program. In addition, t here would be no need for a rulemaking on whether discharges from forest roads are associated with industrial activity and require NPDES permi ts. Moreover, the Supreme Court may provide further clarity or guidance on the Ninth Circuit's ruling on the Phase I regulations. Finally, it is highly likely that a final rule excluding forest roads from Phase I permitting will be subject to litigation in the Nin th Circuit, which would undermine any regulatory certainty pending the outcome of the Supreme Court case

.

Response Please refer to Response 4 and Response 5. Refer also to Response 7, Response 8, and the preamble to today's rule.



# Comment ID 0249

- A1.001.004

Author Name: Howe Paul Organization: Virginia Forestry Association (VFA) Issue Category: 7 As EPA recognizes in the Proposed Rule (at 77 Fed. Reg. 53835, n.1), the Supreme Court is considering issues beyond the Phase 1 stormwater program in its review of the Ninth Circuit's decision, particularly the question of whether forest roads are point sources. The scope of the Supreme Court's ruling could be relevant to the Proposed Rule and whether it is even necessary. Specifically, if the Supreme Court upholds the 1976 Silvicultural Rule and concludes that forest roads are a nonpoint source, then there is no further need for EPA to consider forest roads under any aspect of the section 402(p) stormwater program. Also, there would be no need for a rulemakin g on whether discharges from forest roads are associated with industrial activity and require NPDES permits.

Furthermore, it is quite likely that a final ruling excluding forest roads from Phase 1 permitting will be subject to litigat ion in the Ninth Circuit, which would undermine any regulatory certainty pending the outcome of the Supreme Court case.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 85 Response Please refer to Response 4 and Response 5. Refer also to Response 7, Response 8, and the preamble to today's rule.



# Comment ID 0251

- A1.001.004

Author Name: Keough Shawn Organization: Associated Logging Contractors of Idaho (ALC

- Idaho) Issue Category: 7 As EPA recognizes in the Proposed Rule (at 77 Fed. Reg. 53835, n.1), the Supreme Court is considering issues beyond the Phase I stormwater program in its review of the Ninth Circuit's decision, particularly the questi on of whether forest roads are point sources. Thus, the scope of the Supreme Court's ruling could be relevant to the Proposed Rule and whether the Proposed Rule is even ne cessary. Specifically, if the Supreme Court upholds the 1976 Silvicultural Rule and r ules that forest roads are a nonpoint source, then there is no further need for EPA to consider forest roads under any aspect of the section 402(p) stormwater program. In addition, there w ould be no need for a rulemaking on whether discharges from forest r oads are associated with industrial activity and require NPDES permits. Moreover, the Supreme Court may provide further clarity or guidance on the Ninth Circuit's ruling on the Phase I regulations. Finally, it is highly likely that a final rule excluding f orest roads from Phase I permitting will be subject to litigation in the Ninth Circuit, which would undermine any regulatory certainty pending the outcome of the Supreme Court case.

Response Please refer to Response 4 and Response 5. Refer also to Response 7, Response 8, and the preamble to the final rule.



# Comment ID 0255

- A1.001.004

Author Name: Moon C. Organization: Issue Category: 7 While the Proposed rule to move forestry activities out of the "industrial activities" category makes sense, the best outcome to provide certainty is validation by the courts or by Congress that forest roads should be treated as nonpoint sources of pollution und er the Clean Water Act. This ensures that my clients' forest roads will not be subject to NPDES permits

.

Response Please refer to Response 5. Refer also to Response 6.



# Comment ID 0256

- A1.001.004

Author Name: Bain J.P. Organization: Issue Category: 7 While the Proposed rule to move forestry activities out of the "industrial activities" category makes sense, the best outcome to provide certainty is validation by the courts or by Congress that forest roads should be treated as nonpoint sources of pollution und er the CleanChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 86 Water Act. This ensures that my forest roads will not be subject to NPDES permits.

Response Please refer to Response 5. Refer also to Response 6 and Response 7.



# Comment ID 0257

- A1.001.004

Author Name: Saloom Salem Organization: Saloom Properties, LLC Issue Category: 7 While the Proposed rule to move forestry activities out of the "industrial activities" category makes sense, the best outcome to provide certainty is validation by the courts or by Congress that forest roads should be treated as nonpoint sources of pollution und er the Clean
Water Act. This ensure s that my forest roads will not be subject to NPDES permits.

Response Please refer to Response 5. Refer also to Response 6 and Response 7.



# Comment ID 0263

- A1.001.004

Author Name: Schmidt David Organization: Schmidt Family Forest LLC Issue Category: 7 While the Proposed Rule to move forestry activities out of the "industrial activities" category makes sense, the best outcome to provide certainty is validation by the courts or by Congress that forest roads should be treated as non

- poin t sources under the Clean Water Act. This would insure that my roads will not be subject to NPDES permits, but would continue to be regulated by the State of Oreg on.

Response Please refer to Response 5 and Response 6. Refer also to Response 7 and to the preamble to the final rule.



# Comment ID 0264

- A1.001.004

Author Name: Magruder John Organization: Magruder Family Tree Farm Issue Category: 7 While the proposed rule to move forestry activities out of the "industrial activities" category makes sense, the best outcome to provide certainty is validation by the courts or by Congress that forest roads should be treated as nonpoint sources of pollution und er the Clean Water Act. This ensures that my forest roads will not be subject to NPDES permits.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 87 Response Please refer to Response 5 and Response 6. Refer also to Response 7 and to the preamble to the final rule.



# Comment ID 0265

- A1.001.004

Author Name: Pierce Josiah Organization: The Pierce Place Issue Category: 7 While the Proposed rule to move forestry activities out of the "industrial activities" category makes sense, the best outcome to provide certainty is validation by the courts or by Congress that forest roads should be treated as nonpoint sources of pollution und er the Clean
Wate r Act. This ensures that my forest roads will not be subject to NPDES permits.

Response Please refer to Response 5 and Response 6. Refer also to Response 7 and to the preamble to the final rule.



# Comment ID 0268

- A1.001.008

Author Name: Jane F. Sev ert Elroy Zemke Organization: Wisconsin County Forests Association (WCFA) Issue Category: 7 Additionally, if the rulemaking process moves forward we are concerned the proposed rule will prove to be a temporary fix for the 9th Circuit decision and will result in further litigation.

Response Please refer to Response 4 and Response 5.



# Comment ID 0270

- A1.001.003

Author Name: Ostermayer G. Organization: University of Montana Issue Category: 7
The Ninth Circuit Court therefore ruled that the Silvi culture Rule cannot exempt logging runoff from regulation as a point source if that runoff is collected and discharged from ditches, culverts, and channels into nearby streams, especially if it is an industria l activity (MacCurdy 2010). The Silviculture Rule cannot modify the point source definition; only Congress has that power (Cecchini

- Beaver 2012). Only if the Supreme Court upholds this historic Silviculture Rule and declares logging as a valid non

- industrial activity or Congress crafts an exemption of logging activities within the point source definition, will stormwater associated with logging roads be legally exempt from Phase I Stormwater Regulations and NPDES permits for industrial stormwater. The proposed revisions to Pha se I Stormwater Regulations are therefore a premature reaction to what will ultimately not be decided by the EPA.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 88 Response Please refer to Response 5, Response 7, Response 8, and the preamble to the final rule.



# Comment ID 0271

- A1.001.004

Author Name: Edman George Organization: Edman Company Issue Category: 7 As EPA recognizes in the Proposed Rule (at 77 Fed. Reg. 53835, n.1), the Supreme Court is considering issues beyond the Phase I stormwater program in its review of the Ninth Circuit's decision, particularly t he question of whether forest roads are point sources. Thus, the scope of the Supreme Court's ruling could be relevant to the Proposed Rule and whether the Proposed Rule is even ne cessary. Specifically, if the Supreme Court upholds the 1976 Silvicultural R ule and rules that forest roads are a non point source, then there is no further need for EPA to consider forest roads under any aspect of the section 402(p) stormwater program. In addition, there w ould be no need for a rulemaking on whether discharges fro m forest roads are associated with industrial activity and require NPDES permits. Moreover, the Supreme Court may provide further clarity or guidance on the Ninth Circuit's ruling on the Phase I reguiations. Finally, it is highly likely that a final rule e xcluding forest roads from Phase I permitting will be subject to litigation in the Ninth Circuit, which would undermine any regulatory certainty pending the outcome of the Supreme Court case.

Response Please refer to Response 4 and Response 5. Refer also to Response 7, Response 8, and the preamble to the final rule.



# Comment ID 0272

- A1.001.004

Author Name: Case Michael Organization: The Westervelt Company Issue Category: 7 As EPA recognizes in the Proposed Rule (at 77 Fed. Reg. 53835, n. 1), the Supreme Court is considering issues beyond the Phase I stormwater program in its review of the Ninth Circuit's decision, particularly the question of whether forest roads are point sources. Thus, the sco pe of the Supreme Court's ruling could be relevant to the Proposed Rule and whether the Proposed Rule is even necessary. Specifically, if the Supreme Court upholds the 1976 Silvicultural Rule and rules that forest roads are a nonpoint source, then there is no further need for EPA to consider forest roads under any aspect of the section 402(p) stormwater program. In addition, there w ould be no need for a rulemaking on whether discharges from forest roads are associated with industrial activity and require NP DES permits. Moreover, the Supreme Court may provide further clarity or guidance on the Ninth Circuit's ruling on the Phase 1 regulations. Finally, it is highly likely that a final ruie excluding forest roads from Phase I permitting will be subject to liti gation in the Ninth Circuit, which would undermine any regulatory certainty pending the outcome of the Supreme Court case.

Response Please refer to Response 4 and Response 5. Refer also to Response 7, Response 8, and the preamble to the final rule.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 89 

# Comment ID 0275

- A1.001.004

Author Name: Olszewski Robert Organization: Plum Creek Issue Category: 7 As EPA recognizes in the Proposed Rule (at 77 Fed. Reg. 53835, n.1 ), the Supreme Court is considering issues beyond the Phas e I stormwater program in its review of the Ninth Circuit's decision, particularly the question of whether forest roads are point s ources. Thus, the scope of the Supreme Court's ruling could be relevant to the Proposed Rule and whether the Proposed Rule is even ne cessary. Specifically, if the Supreme Court upholds the 1976 Silvicultural Rule and rules that forest cads are a non point source, then there is no further need for EPA to consider forest roads under any aspect of the section 402(p) stormwater program. In addition, there w ould be no need tor a rulemaking on whether discharges from forest roads are associated with industrial ac tivity and require NPDES permits. Moreover, the Supreme Court may provide further clarity or guidance on the Ninth Circuit's ruling on the Phase I regulations. Finally, it is highly likely that a final rule exciuding forest roads from Phase I permitting wi ll be subject to litigation in the Ninth Circuit, which would undermine any regulatory certainty pending the outcome of the Supreme Court case.

Response Please refer to Response 4 and Response 5. Refer also to Response 7, Response 8, and the preamble to the final rule.Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 

# Issue Category 8: Suggested Alternative Language or Approaches for Revision

Pages 2-90 to 2 -92

Response to Public Comments

Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads

November 30, 2012

Docket #: EPA

- HQ -OW- 2012

- 0195Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 90 

# 8

. SUGGESTED ALTERNATE LANGUAGE OR APPROACHES FOR REVISION

Comment ID 0230

- A1.001.006

Author Name: Godbout Kevin Organization: Weyerhaeuser Company Issue Category: 8 EPA Should Clarify that Logging is Not an Industrial Activity and that Phase II Regulation Only Apply to Point Source Dischar ges

EPA's emphasis in the proposed rule on whether logging roads are "immediate access roads" to an industrial site should be cla rified. As previously stated in NEDC v. Brown, the Ninth Circuit focused on whether "logging" is an "industrial activity." This rulemaki ng appears to be silent on this important question. To promote regulatory clarity and avoid confusion, EPA should explic itly set forth in the preamble that (i) all silvicultural nonpoint source activities listed in 40 C.F.R. § 122.27(b), including timber harvesting, are not industrial activities; and (ii) that incidental log stacking, sorting, and/or storage that may occur at an active timber harvesting site does not transform that timber harvesting into an industrial activity. Direct clarity on this matter is important; if not, we are left to reach this
end

- end point by exclusion (the rule defines industrial activity by describing rock crushing, gravel washing, log sorting, and log storage) and the absence of clarity creates further opportunity for more litigation on this matter.

Response Please refer to Response 5 and Response 6. Refer also to Response 7, Response 8, and Response 9.



# Comment ID 0242

- A1.001.008

Author Name: Garber Richard Organization: Boise Inc. Issue Category: 8 EPA needs to carefully clarify in the preamble or rule language that all site harvesting operations are exempt, consistent with prior EPA interpretations, such as the 1995 Multi

- Sector General Permit for Stormwater Discharges Associated with Industrial Activity. In that 1995 document, EPA provided a broad list of specific silvicultural activities that are part of harvesting operations and are specifically not required to be covered by the permit. Boise requests that EPA provide clarification and confirmation in the current proposed rule that incidental stacking and temporary storage of harvested timber on a site prior to initial transport is exempt. (See also the National Allian ce of Forest Owners and AF&PA's more comprehensive submissions on this issue)

Response Please refer to Response 6. Refer also to Response 9 and to the preamble to today's rule.



# Comment ID 0243

- A1.001.006

Author Name: Tenny DavidChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 91 Organization: National Alliance of Forest Owners (NAFO) Issue Category: 8 I. The Clean Water Act Regulatory Scheme Should Not Require NPDES Permits For Stormwater Discharges From Forest Roads

There is consensus across the Executive Branch and among state Attorneys General, forest landowners, and other stakeholders t hat the
U. S. Court of Appeals for the Ninth Circuit erred in NEDC v. Brown, 1063 F.3d 1176 (9th Cir. 2011), <FN1> and that NPDES permit s under Section 402 of the Clean Water Act are an inappropriate vehicle to regulate stormwater discharges from forest roads. In NED C, the Ninth Circuit interpreted EPA's longstanding Clean Water Act regulations to require NPDES permits for stormwater discharg es from logging roads, even though EPA's long

- held position had been that all forest roads were nonpoint sources not subject to NPDES permitting and regulation. See 40 C.F.R. 122.27. <FN2> While NAFO believes that EPA should not issue a final rule until the S upreme Court completes its review of NEDC v. Brown, NAFO supports EPA's objective as articulated in the Proposed Rule to keep forest road stormwater control measures outside of NPDES permitting, as such an approach is wholly consistent with EPA's long

- standing interpretation of both the statute and its governing regulations.

Specifically, EPA made its position clear in 1990 that stormwater discharges from logging and its immediate access roads were excluded from the Phase I stormwater rule. See 55 Fed. Reg. 47,990 (Nov. 16, 1990) ("The existing regulations at 40 C.F.R. 122.27 currently define the scope of the NPDES program with regard to silvicultural activities. . . . The definition of discharge associated w ith industrial activity does not include activities or facilities that are currently exempt from permitting under NPDES. EPA does not intend to change the scope of 40 C.F.R. 122.27 in this rulemaking. Accordingly, the definition of ‘storm water discharge associated with indus trial activity' does not include sources that may be included under SIC 24, but which are excluded un der 40 C.F.R. 122.27."). Litigation over the Phase II stormwater rule, where petitioners faulted EPA for not designating forest road discharges for Phase II, confirme d the established understanding that forest roads stormwater was not associated with indus trial activity. See Envtl. Def. Ctr. v. EPA, 344 F.3d 832, 860

- 63 (9th Cir. 2003).

Despite this obvious understanding of EPA, the EDC petitioners, and the regulated community that forest roads were outside th e Phase I stormwater permitting program and w ere under study by EPA under Phase II pursuant to the remand in EDC v. EPA, the Ninth Circuit instead interpreted EPA's Phase I regulations (specifically the definition of "storm water discharge associated with industri al activity" at 40 C.F.R. 122.26(b)(1 4)) to include "logging" within the scope of Phase I stormwater permitting requirements. In short, the NEDC v. Brown decision has unnecessarily muddled an issue that has long been considered clear. EPA has never intended logging, "loggi ng" roads, or any fo rest road to be subject to NPDES permitting under the Phase I stormwater program, and the CFR text should be clarified
to reflect that intent.

The Ninth Circuit interpreted EPA's regulations to mean that all "logging" activities under Standard Industrial Classification ("SIC") 2411 were subject to Phase I regulation and permitting. The Proposed Rule clarifies EPA's original intent that Phase I regula tion and permitting for silviculture are limited to those silvicultural point sources defined at 40 C.F.R. § 122.27(b)(2)

- (3) (rock crushing, gravel washing, log sorting, and log storage facilities). The Proposed Rule further states that "all other types of silviculture fac ilities" are not included in Phase I regulation. NAFO supports EPA's proposed regulatory amendment, but, as explained below, urges EPA to await the outcome of the Supreme Court's review before taking final action.

<FN1> The Proposed Rule cites to the first Ninth Circuit opinion, rather to the opinion following briefing on rehearing. NAFO s uggests that EPA cite to the second Ninth Circuit opinion, which is the subject of Supreme Court review. <FN2> EPA differentiates between “logging” roads and “forest” roads based on the applicable decisions by the Ninth Circuit. T hat court
determined in NE DC that EPA’s list of industrial activities in 40 CFR 122.26(b)(14) subject to the Phase I stormwater NPDES permitChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 92 requirement encompassed SIC 241 – Logging. This made “logging roads” part of the Phase I permit requirement because EPA included “immediate access roads” as part of every industrial activity for permit purposes. Forest roads are in the broader category that was subject to the 2003 remand in EDC v. EPA. In neither case did the court define what roads fall in these categories and we bel ieve that EPA will find it a complex task to define the roads given the multiple ownerships and uses in forests that these roads suppor t.

Response Please refer to Response 1, Response 6 , and Response 11

. For the comment on citing the Ninth Circuit, the EPA will cite the second Ninth Circuit opinion in the final rule.



# Comment ID 0268

- A1.001.004

Author Name: Jane F. Severt Elroy Zemke Organization: Wisconsin County Forests Association (WCFA) Issue Category: 8 Removing silvcultural practices, including logging activity and logging roads, from regulation defining "discharges associate d with industrial activity" is critical. By clarifying EPA's original intent through the silvicultural exemption Wisconsin's forestry community will be able to move forward with important and necessary timber harvests while continuing our exceptional protection of wate r

resources.

Response Please refer to Response 6. Refer also to Response 1 and the preamble to the final rule.Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 

# Issue Category 9: Assertions that Logging Roads or Forest Roads Are Point Sources or Nonpoint Sources

Pages 2-93 to 2 -99

Response to Public Comments

Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads

November 30, 2012

Docket #: EPA

- HQ -OW- 2012

- 0195Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 93 

# 9

. ASSERTIONS THAT LOGGING ROADS OR FOREST ROADS ARE POINT SOURCES OR NONPOINT SOURCES

Comment ID 0186.001.004

Author Name: Anonymous Anonymous Organization: Issue Category: 9 The EPA has a responsibility to regulate point source pollution into bodies of water in order to improve and protect the huma n environment. Ignoring a major industrial source of point source pollution is irresponsible and ignores both the intent and the letter of the
law.

Response Please refer to Response 7
, Response 12 , and Response 13

.



# Comment ID 0195

- A1.001.002

Author Name: Leonard Young Ted Sturdevant Organization: State of Washington Department of Natural Resources and State of Washington Department of Ecology (WA DNR and Ecology) Issue Category: 9 Proceeding with further study under the Section 402(p)(6) authority should afford EPA sufficient flexibility in tailoring a p rogram that is responsive to the wide variation that exists among forest types, management practices and roadrelated water quality implications throughout the United States.

Response Please refer to Response 13.



# Comment ID 0230

- A1.001.007

Author Name: Godbout Kevin Organization: Weyerhaeuser Company Issue Category: 9 The Proposed Rule discusses the Phase II regulatory program under Section 402(p)(6) in connection with EPA's actions in response to the partial remand in EDC v. EPA and EPA's recent Notice of Intent. T hroughout the discussion, EPA refers to "stormwater discharges" that could be subject to Phase II regulation, which EPA to date has limited to NPDES permits. We recommend that EPA make clea r that Phase II regulation under Section 402(p)(6) is limited to po int source discharges of stormwater regulated through Section 402 NPDES permits.

Last, EPA should utilize this rulemaking to affirm its long

- established view that forest roads are nonpoint sources beyond the reach ofChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 94 the NPDES program. We understand that EPA intends to perform a Phase II evaluation of forest roads. We are, however, concerned that once the evaluation is complete, EPA would then use Section 402(p)(6) to "regulate" point source stormwater discharges outsid e the NPDES program. We believe that is unnecessary as statebased forestry BMP programs are clearly the means by which forest roads have been and should continue to be regulated and managed. Given the many complexities associated with forest roads at a national scale, the outcome of a 402 (p )(6) process is likely to be inconclusive, leaving forest owners and state regulatory authorities uncertain as to what is expected.

Response Please refer to Response 6, Response 7 and Response 13.



# Comment ID 0234

- A1.001.004

Author Name: Martin Tom Organization: American Forest Foundation (AFF) Issue Category: 9 [W]e continue to support the position that forest roads should not be considered point sources of pollution.

Response Please refer to Response 7.



# Comment ID 0243

- A1.001.005

Author Name: Tenny David Organization: National Alliance of Forest Owners (NAFO) Issue Category: 9 Second, EPA should make clear with regard to discharges subject to regulation under Phase II (Section 402(p)(6)) that such re gulation is limited to point source discharges of stormwater. Finally, EPA should take this opportunity to restate its previous conclusions that forest roads are nonpoint sources best regulated under best management practices outside of the stormwater program.

Response
Please ref er to Response 12 and Response 13. Refer also to Response 7.



# Comment ID 0243

- A1.001.009

Author Name: Tenny David Organization: National Alliance of Forest Owners (NAFO) Issue Category: 9 Second, the preamble to the Proposed Rule discusses the Phase II regulatory program under Section 402(p)(6) in connection with EPA's actions in response to the partial remand in EDC v. EPA and EPA's recent Notice of Intent. Throughout the discussion, EPA ref ers to "stormwater discharges" that could be subject to Phas e II regulation, which EPA to date has limited to NPDES permits. Given the currentChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 95 dispute in the NEDC v. Brown citizen suit on whether forest roads are point or nonpoint sources, and given recent Supreme Cou rt precedent interpreting the term "discharge," S. D. Warren Co. v. Maine Board of Environmental Protection, 547 U.S. 370 (2006), NAFO recommends that EPA make clear that Phase II regulation under Section 402(p)(6) is limited to point source discharges of stor mwater regulated through Section 402 NPDES p ermits.

Indeed, not only should EPA affirm that the Section 402(p)(6) program applies only to point sources regulated through NPDES p ermits,
EPA should also re

- affirm its long

- established view that forest roads are nonpoint sources beyond the reach of t he NPDES program. Thus, while EPA intends to fulfill its obligation under the EDC v. EPA remand and perform a Phase II evaluation of forest roads, it would not be appropriate after that evaluation for EPA to engage in an unprecedented use of Section 402(p) (6) to "regulate" point source stormwater discharges outside the NPDES program.

Response Please refer to Response 6, Response 7, Response 12, and Response 13.



# Comment ID 0248

- A1.001.003

Author Name: Poling Jan Organization: American Forest & Paper Association (AF&PA) Issue Category: 9 While we urge EPA to wait for the Supreme Court's decision before it proceeds with this rulemaking, if EPA continues with thi s rulemaking, AF&PA offers the following technical comments:

First, EPA states that it intends the Proposed Rule to clarify its long

- standing interpretation that silvicultural industrial activities for purposes of defining stormwater discharges associated with industrial activities are limited to rock crushing, grav el washing, log sorting and log storage. The preamble to the Proposed Rule states that EPA "did not intend logging roads themselves to be regulated a s industrial facilities" (77 Fed. Reg. 538371). AF&PA agrees with and supports the view that logging roads should not be regulated as industrial facilities and that stormwater discharges from logging roads are not point source discharges associated with industrial activ ity. Since1976, in the Silvicultural rule, EPA has defined "silvicultural point source" to include only four silvicultural activities and has exempted silvicultural activities "such as ...harvesting operations ... and road construction and maintenance from which there is natural runoff" from of the definition of silvilcultural point source:

Silvicul tural point source means any discernible, confined and discrete conveyance related to rock crushing, gravel washing, log sort ing, or log storage facilities which are operated in connection with silvicultural activities and from which pollutants are discha r ged into
waters of the United States. The term does not include non

- point source silvicultural activities such as nursery operations, site preparations, reforestation and subsequent cultural treatment thinning, prescribed burning, pest and fire control, ha rvesting operations, surface drainage, or road construction and maintenance from which there is natural runoff. <FN1>

In the preamble to the silvicultural rule, EPA explained that "only discharges from four activities related to silviculture e nterprises, rock crushing, gravel washing, log sorting and log storage facilities, are considered point sources and thus subject to the NPDES permit program." 41 Fed. Reg. 24,709, 24,710 (June 18, 1976); see also 40 C.F.R. § 122.3(e) (2009) ("The following discharges do not require NPDES permits: . . . Any introduction of pollutants from non point

- source agricultural and silvicultural activities. . . but not dischargesChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 96 from. . . silvicultural point sources as defined in § 122.27."). EPA further clarified its position in 1990 that stormwater discharges from logging and its immediate access roads were excluded from the Phase I stormwater rule. See 55 Fed. Reg. 47,990 (Nov. 16, 1990 ). In 2003, the EPA issued an Interpretive Statement that its silvicultural rule is "clear on its face" in that it identifies an exclusive list of the four silvicultural activities that are considered "point sources. <FN2>" The 2003 Interpretive Statement noted that "Congress expressly delegated to EPA the power to define "nonpoint source" in the context of silviculture to address the appropriate pollutant controls for silvicultural activities." Id. at 4, citing 33 U.S.C. § 208(b)(2)(F) and 304(f)(A).

<FN1> 40 C.F.R. § 122.27(b)(1) (2009) (underlined emphasis added) <FN2> 2003 Interpretive State ment at 3 (listing rock crushing, gravel washing, log sorting, and log storage facilities which are operated in connection with silvicultural activities)

Response Please refer to Response 1

.



# Comment ID 0253

- A1.001.005

Author Name: Gustafson Earl Organization: Wisconsin Paper Council (WPC) Issue Category: 9 Phase II regulation under Section 402(p)(6) is limited to point source discharges of stormwater regulation through Section 40 2 NPDES permits and that forest roads are nonpoint sources outside the scope of the NPDES program.

Response Please refer to Response 7, Response 12, Response 13, and the preamble to today's rule.



# Comment ID 0253

- A1.001.007

Author Name: Gustafson Earl Organization: Wisconsin Paper Council (WPC) Issue Category: 9 Following a decision from the Court, subsequent EPA action under Phase II should be consistent with the EPA's long

- standing perspective that forest roads are nonpoint sources.

Response Please refer to Response 7 and Response 13.



# Comment ID 0260

- A1.001.002

Author Name: Greig GeorgeChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 97 Organization: Pennsylvania Department of Agriculture (PA DA) Issue Category: 9 If the proposed revisions to the Phase I stormwater rule are determined to be an appropriate action at this time to the NEDC v. Brown decision, we certainly support the clarification of the long standing policy not to require National Pollutant Discharge Elim ination System ("NPDES") permits for stormwater discharges from forest roads because those roads are non

- point sourc es.

Response Please refer to Response 7. Refer also to Response 1 and to the preamble to the final rule.



# Comment ID 0266

- A1.001.004

Author Name: Goergen Jr. Michael Organization: Society of American Foresters (SAF) Issue Category: 9
4. SAF notes the EPA's continued position that forest roads are nonpoint sources (see Footnote 1 in the Notice). We agree that natur al
runoff from forest roads - including logging roads - is a nonpoint source, even when natural runoff is channeled in ditches and culverts that are inherent in road construction and maintenance. In some cases, the lack of ditches and culverts would increase the ri sk of
increased sediment loss.

Response Please refer to Response 7. Refer also to Response 12 and Response 13.



# Comment ID 0269

- A1.001.004

Author Name: Chris Winter Paul Kampmeier Organization: Washington Forest Law Center and Crag Law Center (obo Northwest Environmental Defense Center et al.) Issue Category: 9 C. EPA cannot amend the Phase I rule based on an incorrect and outdated belief that pipes, ditches and channels along logging roads are nonpoint sources of pollution.

EPA states that "[t]he intent of the EPA in this notice of proposed rulemaking is that the NPDES program requirements be implemented with regard to ‘immediate access roads' in the same way they were implemented prior to the decision by the Ninth Circuit." 77 Fed. Reg. at 53836. EPA did not clearly explain in the September 4, 2012 Federal Reg ister notice that EPA is amending the rule because it believes that logging roads produce only nonpoint source pollution. However, EPA did state in that notice that in the Phase I rule EPA only intended to regulate four silvicultural point sources and that , based on the silvicultural rule (40 C.F.R. § 122.27), EPA intended "to exclude from the Phase I regulation stormwater runoff from other silvicultural activities." 77 Fed. Reg. at 53836. EPA also c laims in the Northwest Environmental Defense Center litigation that, based on its interpretation of the silvicultural rule, it considers stormwater discharges along logging roads to be nonpoint source pollution that is not subject to the NPDES permit program.

For at least three reasons, the assertion that loggi ng roads produce only nonpoint source pollution is not a valid justification for amendingChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 98 the Phase I rule. First, the assertion is clearly erroneous because, as previously explained, the Clean Water Act unambiguous ly defines pipes, ditches and channels as "point sources." The EPA therefore cannot exclude pipes, ditches and channels along logging roads from the Phase I rule based on the assertion that pollution from those sources is nonpoint in nature. Second, and similarly, CWA s ection 402(p) only allows EPA to exclude a point

- source discharge of stormwater from regulation if it is not associated with industrial activity. A determination by EPA that logging roads produce only nonpoint source pollution is not equivalent to, and does not substitut e for, a
det ermination that logging roads are not associated with industrial activity. Third, if EPA continues to believe that logging ro ads produce only nonpoint source pollution, then there is no reason at all to amend the Phase I rule because that rule would not an d could not apply to logging roads in the first place.

In fact, because the Phase I rule only applies to point

- source discharges of stormwater, by proposing to amend the rule EPA acknowledges that logging roads can produce point

- source discharges that are subject to the Phase I rule. It is therefore impossible for the NPDES program requirements to be "implemented with regard to ‘immediate access roads' in the same way they were implement ed prior to the decision by the Ninth Circuit." Rather than rely on a n outdated rationale for not requiring NPDES permits for point

- source discharges of stormwater along logging roads, EPA should provide a thoughtful and valid explanation for excluding those disch arges from the Phase I rule. That explanation should also acc ount for and squarely respond to the Ninth Circuit's holdings in Northwest
Environmental Defense Center.

Response Thank you for your comments. The EPA has reviewed all comment letters and responded to the comments received on the proposed rule.
Please refer to Response 3, Response 4, Response 7, Response 8, Response 9, Response 10, Response 11, Response 12, Response 13, and the preamble to the final rule.



# Comment ID 0270

- A1.001.002

Author Name: Ostermayer G. Organization: University of Montana Issue Category: 9 The proposal to revise Phase 1 Stormwater Regulations, in response to the Ninth Circuit Court decision of Northwest Environme ntal Defense Center v. Brown (2011), ignores the statutory definition of "point source" under the Clean Water Ac t (CWA). According to the CWA, a "point source" is defined as:

any discernible, confined, and discrete conveyance, including but not limited to, any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated ani mal feeding operation, landfill leachate collection system, vessel or other floating craft from which pollutants are or may be discharged. This term does not include return flows from irrigated agriculture or agricul tural stormwater runoff. (40 CFR 122.2)

This legal definition of "point source" under the CWA focuses on the mechanism of discharge and not the source of the polluta nt, which the Silviculture Rule uses to define the exemption of logging roads from point source regulation (Cecchini

- Beaver 2012) . Because the Silviculture Rule defines the logging exemption based on the source of the pollutant and not the mechanism of discharge, this rule conflicts with the statutory definition of "point source" and was thus deemed invalid by the Ninth Circuit Cour t. This decision was based on legal precedents from over 40 years ago, in which the courts ruled that the EPA cannot exempt pollution sources from the N PDESChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 99 program if they meet the statutory definition of a point source (Natural Resources Defense Council v. Train 1975; Natural Resources Defense Council v. Costle 1977).

Response Please refer to Response 7. Refer also to the preamble to the final rule.Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads



# Issue Category 10: Addition of Language to

Phase I Stormwater Regulations on “Rock Crushing, Gravel Washing, Log Sorting, and Log Storage” and the Meaning of These
Terms

Pages 2-100 to 2 -101

Response to Public Comments

Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads

November 30, 2012

Docket #: EPA

- HQ -OW- 2012

- 0195Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 100 

# 10

. ADDITION OF LANGUAGE TO PHASE I STORMWATER REGULATIONS ON "ROCK CRUSHING, GRAVEL WASHING, LOG SORTING, AND LOG STORAGE" AND THE MEANING OF THESE TERMS

Comment ID 0199

- A1.001.006

Author Name: Owen Wib Organization: North Carolina Department of Agriculture and Consumer Services (NC DACS) Issue Category: 10 Finally, we are somewhat concerned regarding two aspects related to the USEPA's proposed NPDES rule revisions. Positively, th e proposed revision would clarify that only certain activities wou ld be subject to NPDES permitting, including "log sorting" and "log storage". However, during a timber harvest operation, it is commonplace for trees to be dragged or carried to a centralized s taging area within the forest, where the trees are stripped of their limbs and mechanically prepared for loading onto log trucks for transport. These centralized staging areas are referred to by many regionally

- specific names, with log deck, log landing, log ramp, or log setout being the
most common terms. It is a con cern that temporary, in

- woods staging areas may be inadvertently and mistakenly interpreted to be "log sorting" industrial facilities, since there is some minor degree to which trees and logs are sorted apart, manipulated, handl ed, and

pre

- staged for loadi ng onto a log truck for delivery to an industrial processing or storage destination.

Likewise, in certain parts of the U.S., particularly in the northeastern and Lake

- state regions, timber is harvested during the winter when the ground is frozen. Logs fr om these harvested trees are then temporarily stacked in piles alongside forest roads. The logs are then loaded onto trucks and transported after the winter thaw when road conditions allow improved travel. As noted above, it is a concern that these temporary log piles may be mistakenly interpreted to· be "log storage" industrial facilities.

Temporary log staging or handling areas, and temporary roadside log pile stacks clearly fall under the nonpoint source catego ry of storm
water runoff associated with s ilvicultural activities. However, given the ephemeral and unwieldy nature of recent litigation and subsequent court rulings related to NPDES issues, it remains a concern that additional investigations and attempts to regulat e temporary log staging areas an d temporary roadside log stacks could occur. We believe that further clarification to USEPA's Silvicultural Rule ( 40 CFR 122.27) stating that these temporary log staging or handling areas, and temporary roadside log pile stacks are part of on going
silvicu ltural activities, and are not industrial facilities, could help prevent future misinterpretation.

Response Please refer to Response 9. Refer also to the preamble to today's rule.



# Comment ID 0242

- A1.001.007

Author Name: Garber Richard Organization: Boise Inc. Issue Category: 10 EPA should clarify that all harvest activities which occur in the woods are non

- industrial, nonpoint source silvicultural activities, andChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 101 therefore not subject to the stormwater permitting requirements. We beli eve that the language provided in the proposed rule (40 CFR Section 122.26(b)(14)(ii), listing "rock crushing, gravel washing, log sorting, or log storage facilities" (emphasis added) a s activities that would be considered industrial activities and subject to NPDES stormwater permits is too broad. Thus the language could be inappropriately applied to legitimate silvicultural, non

- industrial activities that commonly occur in the field at a harvesting site.

Response Please refer to Response 6 and Respons e 9. Refer also to the preamble to today's rule.



# Comment ID 0253

- A1.001.004

Author Name: Gustafson Earl Organization: Wisconsin Paper Council (WPC) Issue Category: 10 In the alternative, if the EPA finalizes the Proposed Rule, the WPC respectfully recommends that the EPA should clarify that: (1) all silvicultural nonpoint source activities listed in 40 CFR §122.27(b), including timber harvesting, are not industrial activit ies; (2) incidental log stacking, sorting and/or storage that may occur at an active timber harvesting site do not transform that timber harvesting into an industrial activity;

Response Please refer to Response 9. Refer also to Response 6, Response 8, and the preamble to today's rule.Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 

# Issue Category 11: Assertions that Stormwater Discharges From Logging Roads Are Industrial Discharges and an NPDES Permit Should Be Required

Pages 2-102 to 2 -12 1

Response to Public Comments

Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Require d for Stormwater Discharges from Logging Roads

November 30, 2012

Docket #: EPA

- HQ -OW- 2012

- 0195Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 102 

# 11

. ASSERTIONS THAT STORMWATER DISCHARGES FROM LOGGING ROADS ARE INDUSTRIAL DISCHARGES AND AN NPDES PERMIT SHOULD BE REQUIRED

Comment ID 0186.001.003

Author Name: Anonymous Anonymous Organization: Issue Category: 11 Silviculture practices necessitate the development of numerous facilities, and, like most other industries, these facilities often generate point source pollution that is subject to NPDES regulations. There is no compelling reason to make a special exclusi on for the silviculture industry, or to think that the forest industry is incapable of obtaining NPDES permits like every other industry

.

Section 402(p)(5) directs the EPA to establish "procedures and methods to control stormwater discharges to the extent necessary to mitigate impacts on water quality." Failure to address discharges from forest roads, which are a major source of TDS, herbici des, fungicides, pesticides, and vehicle fluids, ignores this legislative directive.

Response
Please refer to Response 8. Refer also to Response 7, Response 12, and the preamble of today's rule.



# Comment ID 0206

- A1.001.004

Author Name: Beardsley Michael Organization: Professional Logging Contractors of Maine (PLCM) Issue Category: 11 First, removing logging from the regulation defining "discharges associated with industrial activity" is critical. As EPA recognizes in the NOI, an industrial activity must obtain an NPDES permit under the stormwater program's Phase 1. By clarifying EPA's original intent when it adopted this regulation in 1990, the agency will move logging into the flexible Phase 2 portion of the program where EPA has the discretion to determine whether NPDES permits are necessary. While this does not restore the nonpoint source status of forest roads, it
allows EPA to continue with its 36

- year policy of relying on BMPs to address water quality impacts from these activities.

Response Please refer to Response 8. Refer also to Response 7.



# Comment ID 0230

- A1.001.002

Author Name: Godbout Kevin Organization: Weyerhaeuser Company Issue Category: 11Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 103 The Clean Water Act Regulatory Scheme Should Not Require NPDES Permits for Stormwater Discharges from Forest Roads

We strongly believe that NPDES permits under Section 402 of the Clean Water Act are an inappropriate vehicle to regulate stormwater discharges from forest roads. Forest roads fit into a very broad use category and we believe EPA has correctly determined tha t NPDES permits covering forest roads would be a complex, perha ps impossible permitting task.

Response Please refer to Response 13. Refer also to Response 7, Response 8, and the preamble to today's rule.



# Comment ID 0236

- A1.001.002

Author Name: Haller Greg Organization: Pacific Rivers Council (PRC) Issue Category: 11 Therefore, PRC stongly urges EPA to not move forward with its proposal to "clarify" that stormwater discharges from logging r oads do not require National Pollutant Discharge Elimination System (NPDES) permits.

The Clean Water Act (CWA) generally prohibits discharges of pollutants from point sources to waters of the United States exce pt through the NPDES permit program. Congress defined "point source" as "any discernible, confined and discrete conveyance." <FN 1> Congress included "rock" and "sand" in its definition of "pollutant," encompassing sedimentation. <FN2> Because logging roads and associated ditches often intercept rainfall, concentrate flows, divert waters from natural flowpaths, then deliver surface wa t er to stream channels, they fall within this statutory definition.

EPA proposes to "clarify that stormwater discharges from logging roads do not constitute stormwater discharges associated wit h industrial activity and that a NPDES permit is not required for these stormwater discharges." <FN3> PRC strongly disagrees with this proposal. Exempting industrial logging roads' stormwater discharges from regulation under the NPDES permit program fails to proactively "restore and maintain the chemical, physical, a nd biological integrity of the nation's waters," the objective of the CWA. <FN4> Best management practices (BMPs) are not sufficient to curb the continued delivery of pollutants from industrial loggin g roads

to streams.

<FN1> 33 U.S.C. § 1362(14).
<FN 2> Id. § 1362(6). <FN3> 77 Fed. Reg. 53834 (Sept. 4, 2012). <FN4> 33 U.S.C. § 1251(a).

Response Please refer to Response 4, Response 7, Response 8, Response 10, Response 12, Response 13, and the preamble to today's rule.



# Comment ID 0236

- A1.001.004Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 104 Author Name: Haller Greg Organization: Pacific Rivers Council (PRC) Issue Category: 11 III. The NPDES Permit Program Provides a Readily Available, Proven Mechanism for Regulating Sediment Delivery from Logging
Roads

Because of their well

- documented adverse impacts to watersheds, it is critically important for EPA to support and provide for the regulation of sediment delivery from logging roads. These point sources have escaped scrutiny for far too long. The NPDES per mit program is a readily available, effective mechanism EPA and its partner state agencies can use to regulate sediment delivery from logging roads. EPA asserts it feels other authority available under the CWA provide for better flexibility to deal with the diverse ownership of industrial logging roads, <FN16> but the NPDES permit program provides sufficient flexibility through the option of using general permits and crafting individual permit provisions with specificity for various landowners, locations, and road uses.

Further, the NPDES permit program provides for accountability and enforcement to a degree not demonstrated in alternative, un tested regulatory options. The NPDES permit program has drastically reduced the amount of point source pollution in to our nation's waters without unduly burdening economic development. EPA and partner state agencies can work together to inform and educate relevan t landowners of the importance and necessity of addressing logging road discharges through the NPDES permit program. EPA and the states can also determine proper permitting costs relative to various landowners and the volume, duration, and regularity of discharges from their respective logging roads. Because commercial logging operations constitute "industrial a ctivity" under the CWA, <FN17> it is appropriate that logging companies and industrial forestland owners bear the cost of eliminating or minimizing channeled s ediment delivery from their roads into the nation's water. Other industries similarly face permit ting costs under the CWA.

IV. Best Management Practices Are Not Sufficient to Prevent Discharges of Pollutants from Logging Roads

PRC strongly urges EPA to regulate point source discharges of pollutants from industrial logging roads under the existin g NPDES permit program, and not to rely on best management practices with minimal regulatory oversight. BMPs typically lack quantifie d criteria to measure discharges into streams such that they provide sufficient levels of accountability. Further, adequate BMP implementation is subject to a broad range of interpretations depending on what is deemed practicable by the respective responsible party in an y given location. BMPs have not prevented streams from being listed as impaired due to forestry activities. In addition, enforcement of BMPs is not consistent and made difficult by the lack of quantifiable criteria associated with them in many instances.

PRC asks that EPA thoroughly review and respond to the Endicott report brought to the agency's attention previously by conservation groups that outlines the insufficiency of BMPs to prevent logging roads' stormwater discharges from reaching streams. <FN18> We further ask EPA to fully explain in any future decisions related to this proposal why the Endicott rep ort has not led the EPA to determine the NPDES permit program provides a more effective mechanism to eliminate logging road

- derived pollutants from streams, if that is the outcome of this rulemaking process.

V. Conclusion

Because industrial logging roa ds can and do channel stormwater discharges directly into streams, they can and should be regulated as point sources under the CWA. BMPs have not proven effective to stop logging roads' stormwater discharges into streams, dimini shing water quality, harming aquatic species and human water supplies, and delaying the recovery of species listed under the Endangered Species Act. The NPDES permit program has enough flexibility to allow EPA and state agencies to craft appropriate permits for diverseChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 105 landowners in various locations with forest roads. PRC strongly urges EPA not to move forward with its proposal to "clarify" that logging road stormwater discharges do not require NPDES permits, but instead use the NPDES permit program to at last begin th e process of ef fectively ending logging road discharges into the nation's waters.

<FN16> 77 Fed. Reg. 53834, 53836 (Sept. 4, 2012). <FN17> 33 U.S.C. § 1342(p)(2)(B). <FN18> Endicott, D., National Level Assessment of Water Quality Impairments Related to Forest Roads an d Their Prevention by Best Management Practices - Final Report (prepared for the U.S. EPA, Office of Water, Office of Wasterwater Management Permits Division), Contract No. EP -C- 05

- 066, Task Order 002) (2008).

Response Please refer to Response 13 and to the preamble to today's rule.



# Comment ID 0243

- A1.001.004

Author Name: Tenny David Organization: National Alliance of Forest Owners (NAFO) Issue Category: 11 Should EPA proceed with this rulemaking either before or after the Supreme Court's ruling, NAFO would like to offer some further suggestions to the Proposed Rule preamble for both regulatory precision and regulatory certainty. First, EPA's emphasis on "a ccess roads" in the Proposed Rule is misplaced; the clarif ication provided in the Proposed Rule should be focused on the Ninth Circuit's characterization of "logging" as "industrial activity," and how logging activities (i.e. timber harvesting operations) are, i n fact,

non

- industrial.

Response
Please refer t o Response 6 and Response 8.Refer also to Response 9 and to the preamble to today's rule.



# Comment ID 0243

- A1.001.008

Author Name: Tenny David Organization: National Alliance of Forest Owners (NAFO) Issue Category: 11 III. EPA Should Make Clear in the Preamble That Logging is Not an Industrial Activity and that Phase II Regulation Only Appli es to Point Source Discharges

If EPA moves to finalize the Proposed Rule, NAFO proposes two further clarifications to the preamb le language. First, EPA's emphasis (at 77 Fed. Reg. 53836) on whether logging roads are "immediate access roads" to an industrial site is misplaced and incomple te. In NEDC v. Brown, the Ninth Circuit focused first on whether "logging" is an "industrial act ivity." The preamble appears to be silent on this question, other than by exclusion (by describing rock crushing, gravel washing, log sorting, and log storage as "industr ial activity"). To promote regulatory clarity and avoid confusion, EPA should explicit ly set forth in the preamble that (i) all silvicultural nonpointChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 1 06 source activities listed in 40 C.F.R. § 122.27(b), including timber harvesting, are not industrial activities; and (ii) that incidental log stacking, sorting, and/or storage that may occur at an active timber harvesting site does not transform that timber harvesting into an industrial activity. Indeed, EPA can reiterate the interpretations it set forth in issuing the 1995 Multi

- Sector General Permit for Stormwater Discharges Associated with In dustrial Activity, in which it made clear that:

Discharges from nonpoint source silvicultural activities, including harvesting operations . . . are not required to be covere d. It is EPA's determination [that] harvesting activities include: the felling, skidding, preparation (e.g. delimbing and trimming), loading and initial transport of forest products from an active harvest site. . . . EPA also interprets the definition of harvesting operations t o include incidental stacking and temporary storage of harvested timber on the harvest site prior to its initial transport to either an intermediate storage area or other processing site. EPA considers this activity to be an inherent part of harvesting operations.

60 Fed. Reg. 50804, 50835 (1995). These clarif ications will solidify the appropriate scope of Phase I regulations as applied to
silviculture.

Response Please refer to Response 7 and Response 8. Refer also to Response 6, Response 9, and the preamble to today's rule.



# Comment ID 0267

- A2.001.002

Author Name: Chris Winter Paul A. Kampmeier Organization: Washington Forest Law Center and Crag Law Center (obo Northwest Environmental Defense Center et al.) Issue Category: 11 As discussed in more detail in this letter, EPA should distinguish active, industrial logging roads from other logging or for est roads on the landscape. The former should remain regulated under EPA's Phase I rule because they generate "stormwater discharges associated with industrial activity." Northwest Environmental Defense Center v. Brown, et al., 640 F.3d 1063, 1085 (9th Cir. 2011). As t o inactive,

non

- industrial, and other forest roads, in response to the remand order in Environmental Defense Center v. EPA, 344 F.3d 832 (9th Cir. 2003), EPA should build a Phase II program to address stormwater discharges along those roads. That program should be regulat ory, not voluntary, and it should not replace the Phase I permit requirement for active industrial log ging roads. Moreover, any Phase II program should not defer to existing state, federal and tribal programs because that is prohibited by statute and widely available sc ientific literature demonstrates that those programs do not protect water quality or des ignated beneficial uses. As EPA recognizes, "[s]tormwater discharges from logging roads, especially improperly constructed or maintained roads, may introduce significant amounts of se diment and other pollutants into surface waters and, consequently, cause a variety of water quality impacts." 77 Fed. Reg. at 30,476. EPA's Phase II program for forest roads should therefore supplement EPA's Phase I regulation of active, industrial logging roads.

1. EPA can and should regulate stormwater pollution from active, industrial logging roads differently than it regulates stormwater pollution from other forest roads, including inactive and non

- industrial logging roads.

EPA should recognize the important differences between active industrial logging roads, on the o ne hand, and forest roads, including inactive logging roads and logging roads on nonindustrial lands, on the other hand. As discussed in more detail below, all fo rest roads

- whether active, inactive, industrial or non

- industrial

- have the potential to genera te stormwater discharges that pollute streams and adversely impact water quality and aquatic ecosystems. Because more effective programs could limit all forest road pollution and theChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 107 resulting adverse impacts to water quality, we support EPA's efforts to b uild a Phase II program to address forest road stormwater discharges. However, that program should supplement, not replace, EPA's regulation of the subset of logging roads that genera te "stormwater discharges associated with industrial activity." We therefore request that EPA take a tiered approach to regulating stormwater discharges from logging roads. EPA should continue requiring NPDES permits for stormwater discharges along logging roads that support active timber hauling in large forests or on lands ma naged primarily for timber production. For stormwater discharges along other forest roads, including inactive and non

- industrial logging roads, EPA should build a nation

- wide Phase II program to limit those harmful discharges.

A. EPA must regulate and require NPDES permits for active industrial logging roads that discharge to streams via point sources.

Logging roads that are used to support currently active industrial logging should remain regulated under EPA's Phase I stormw ater rule because, where those roads utilize pipes, ditches and other point sources to collect and convey stormwater, they generate "stormwater discharges associated with industrial activity" that EPA is required to regulate under Phase I. EPA's Phase I authority deriv es from
section s 402(p)(1) through (4) of the Clean Water Act, 33 U.S.C. §§ 1342(p)(1)

-- (4). As is clear from the Act, section 402(p)(2) required EPA to require NPDES permits for a variety of stormwater discharges, including "a discharge associated with industri al
acti vity." In 1990, EPA opted to require NPDES permits for stormwater discharges associated with industrial logging activities. < FN1> EPA's Phase I rule makes it clear that NPDES permits are required for discharges from "immediate access roads" and "material h andling sites" used for the transportation or conveyance of any raw materials. Logging roads that facilitate industrial

- scale timber harvest by providing ingress and egress to logging sites

- logging roads that are used to haul heavy equipment in and out of forests managed primarily for timber harvest and that are also used to haul cut timber out of those forests

- meet the requirements of the rule and qualify as roads that support the requisite "industrial activity." Indeed, EPA recognizes that many logging roads are associated with industrial activity: "[p]rivate forest land owners invest considerable resources in forest road construction and maintenance, as they ar e critical assets that enhance property values, maintain economic viability, and facilitate sustainable forestry management." 77 Fed. Reg. at 30,475. Accordingly, where those logging roads use pipes, ditches and channels to discharge stormwater to jurisdictional wate rs, section 402(p)(2) of the Clean Water Act and EPA's Phase I rule require those dis charges to obtain an NPDES permit.

As Congress intended, NPDES permits are an extremely effective mechanism for reducing pollution and protecting clean water. E PA should stand by its decision to require NPDES permits for industrial logging operations beca use industrial logging roads are a widespread and significant pollution source that NPDES permits could help remedy. Logging companies and industrial forestland owners should bear the cost of reducing logging road pollution just like all the other industri al and construction sectors that have been required to comply with NPDES permits since at least 1990. Moreover, NPDES permits need not be overly burdensome: EPA and sta te agencies have decades of experience with NPDES permits and, because each state with a n authorized NPDES program will develop its own permits, the permits could respond to local needs without overly burdening landowners.

If EPA takes any action in response to the NEDC v. Brown decision, EPA should simply clarify what industrial logging activities are subject to the Phase I rule and NPDES permit requirement. For example, EPA could reiterate that the Phase I rule only applies to point

- source discharges of stormwater and that truly "natural runoff"

- stormwater that is not collected and chann eled before discharge to

streams

- is a nonpoint source of pollution that still does not require an NPDES permit. EPA could also take the position that the Phas e I rule does not apply to inactive logging roads and non

- industrial forest roads because they do not have the requisite "industrial activity" to bring them within the rule. EPA guidance could also address and provide guidance to the regulated community about the circums tances in which owners and operators need to obtain NPDES permits for active indust rial logging roads that cross multiple ownership, concerns that EPA raised in the May 23 Federal Register notice.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 108 B. EPA should regulate stormwater discharges from other forest roads, including inactive and non

- industrial logging roads, under a new
Phase II program.

It is a mistake for EPA (or anyone else) to assume that all logging roads support "industrial activity" and so require NPDES permits under the Phase I rule. Many logging roads may not meet the regulatory thresholds stated in the Phase I rule e ither because they do not support "industrial" logging (they are not part of "industrial" operations) or because they are inactive (there is no ongoing "activity"). For example, those that own minimal amounts of forestland and those who harvest timber on l ands primarily dedicated to other uses

- i.e., residences, pasturing, or small farming

- may not be "industrial" within the meaning of the Act and Phase I rule. EPA recognizes that "62 percent [of private forest land] is owned by families and individuals" and that "[m]ost of the family forest owners (around 61 percent) own fewer than 10 acres of forest land." 77 Fed. Reg. at 30,475. EPA should consider whether those who own fewer than 10 acre s of forestland are engaging in "industrial logging" for purposes of t he Phase I rule. Similarly, logging roads that do not support any logging activities may not meet the "industrial activity" requirement of the rule and so may not require NPDES permits during the tim e of inactivity.

These other forest roads, including no n- industrial and inactive forest roads, are also sources of deleterious stormwater pollution warranting attention and regulation under section 402(p) of the Clean Water Act. Accordingly, the Conservation Groups support EPA's efforts to develop a nation

- wid e Phase II program to address stormwater pollution from those and other forest roads. Any new program, however, should not substitute for regulating and requiring NPDES permits for stormwater discharge from pipes, ditches and ch annels along active industri al logging roads.

Under the Act, the only stormwater discharges that are subject to Phase II regulation are those that EPA did not regulate in the Phase I rule. In other words, Phase I discharges and Phase II discharges are mutually exclusive: a discharg e regulated under Phase I cannot be subject to Phase II and Phase II can only apply to discharges not regulated under Phase I. Phase I required permits for the s tormwater discharges listed in section 402(p)(2), including "stormwater discharges associated w ith industrial activity," and under that authority EPA regulated and required NPDES permits for stormwater discharges associated with industrial "logging" activities, including industrial logging roads. EPA cannot now move those particular discharges into a Phase II program. In other words, any new Phase II program can supplement the NPDES permit requirement for point

- source stormwater discharges from active industrial logging roads, but it cannot replace it.

However, EPA can distinguish industrial logging roads from inactive roads (roads without any current industrial activity) and from

non

- industrial logging roads and then regulate stormwater discharges from those roads in a Phase II program pursuant to the reman d
order in EDC v. EPA remand. EPA made a si milar distinction when it required NPDES permits for construction sites greater than one acre but exempted smaller construction sites from the NPDES permit requirement. As it did with construction activities, we ur ge EPA to recognize the different varietie s of logging roads on the landscape and to regulate them accordingly.

A tiered approach to regulating forest roads is also consistent with the science around logging road pollution and the ongoin g use of the roads. The intensity of use is one factor that heavily influences whether a logging road will pollute nearby streams and how significant that pollution will be. Additionally, where timber companies or landowners are actively using logging roads to haul equipment and timber, the people and equipment required to better manage the road to reduce logging road pollution are already on

- site and so better able to apply stormwater pollution prevention plans to the road segments that are discharging to streams. For these reasons i t makes perfect sense to direct more intensive regulation (via NPDES permits) to logging roads used for active industrial logging operations. For similar reasons, it also makes sense to direct less intensive regulation to the inactive, non

- industrial, and other forest roads.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 109 A tiered a pproach could also be consistent with the NPDES permit rules on the books today. EPA's rules generally distinguish between silvicultural activities (the growing of trees) and industrial logging activities (the harvesting of trees in the forest). Si lvicultu re is the art and science of controlling the establishment, growth, composition, and quality of forest vegetation for the full range of for est resource objectives, while logging is the harvesting of those trees in the forest. Indeed, because numerous court s have concluded that EPA's silvicultural rule, 40 C.F.R. § 122.27, is not an NPDES permit exemption for point

- source discharges of pollutants or stormwater associated with silvicultural activities, EPA could regulate point

- source stormwater discharges alo ng inactive logging roads under a Phase II program. <FN2> A tiered approach could recognize that stormwater discharges associated with silvicultural activities (the growing of trees) are not industrial in nature while also recognizing that stormwater discharges associated with industrial logging operations require NPDES permits under Phase I.

Finally, a tiered approach could address concerns about the reach of the NEDC v. Brown decision while also recognizing and ad dressing legitimate concerns about indust rial logging road pollution. After the Ninth Circuit decided NEDC v. Brown, many expressed concern that requiring NPDES permits for stormwater discharges associated with industrial logging activities would unduly burden smal l
forestland owners

- that it would expose those landowners to citizen suit litigation and liability under the Clean Water Act

- and also overly burden the Forest Service and other agencies that manage hundreds of thousands of acres of forestland. By regulating inactive and

non

- industrial lo gging roads under a Phase II program but requiring NPDES permits only for the active industrial logging roads that discharge to streams via point sources, EPA could clarify the scope and impact of the NEDC v. Brown decision and adequately r espond
to the ED C v. EPA remand while also assuaging concerns about the scope and impact of EPA's stormwater regulations.

C. The elements of an effective Phase II program.

EPA's authority to develop Phase II programs derives from sections 402(p)(5) and (6) of the Clean Water Act, 33 U.S.C. §§ 1342(p)(5) & (6). Section 402(p)(6) requires EPA to issue regulations that "designate stormwater discharges, other than those discharges described in paragraph (2), to be regulated to protect water quality and [to] establish a comp rehensive program to regulate such designated sources." 33 U.S.C. § 1342(p)(6); see also 402(p)(5)(C) . Any Phase II program must meet certain requirements: "The program s hall, at a minimum, (A) establish priorities, (B) establish requirements for State st ormwater management programs, and (C) establish expeditious deadlines." Id. "The program may include performance standards, guidelines, guidance, and management practices an d treatment requirements, as appropriate." Id.

While the NPDES program has been remarkably successful in reducing surface water pollution from regulated point sources, nonpoint source programs under sections 208 and 319 of the Clean Water Act are widely acknowledged to be ineffectual. <FN3> Indeed, EP A acknowledges that the majority of the nation's remaining water quality impairment comes from nonpoint source pollution. <FN4> The failure of the nonpoint programs has been ascribed primarily to the lack of mandatory monitoring requirements, the lack of ag ency and citizen enforcement actions, and the lack of penalties for noncompliance. <FN5>

If EPA chooses to regulate forest road stormwater discharges in a Phase II program, EPA should ensure that its program contai ns all elements necessary to ensure that effective protection of our waterwa ys is finally achieved. At a minimum EPA should develop a regulatory program that includes the measures that help make the NPDES permit program so effective: required discharge monito ring; agency and citizen enforcement opportunities; and civil penalties f or noncompliance with the program. Additionally, any Phase II program must explicitly require the regulated community and stormwater discharges from forest roads to attain and maintain wa ter quality standards. To ensure that the regulatory program protects water quality, as required by section 402(p)(6), EPA's program must include performance benchmarks, accountability, and management standards designed to achieve water quality goals. An initial inventory should be required to identify problem roads and roa d features; a timeline to fix those problems established with EPA or theChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 110 state regulatory agency; and a monitoring schedule with required checkpoints reporting back to the regulatory agency to ensur e that the
treatments used are effective and to ensure tha t the schedule is being followed. Any Phase II program must also prioritize disconnecting forest roads from the stream network, i.e. reducing hydrologic connectivity between forest roads and nearby rivers and stream s, as Washington State's program does. Se e 77 Fed. Reg. 30,477.

EPA may not simply defer to existing regulatory programs, as EPA suggests in the May 23, 2012, Federal Register notice. See 7 7 Fed. Reg. at 30,476 ("Under 402(p) EPA could build on or defer to other federal, state, tribal, local, and voluntary programs."). Section 402(p)(6) requires EPA to "establish a comprehensive program to regulate such designated sources." Although EPA may incorpora te into its program elements of existing and successful programs from other jurisdictions, EPA may not simply defer to those programs but must instead establish a comprehensive program that meets the requirements of the Act and protects water quality. Moreover, a s will be explained in the following sections, EPA has already conducted the requisite stud y, and already has more than enough information, to justify regulating forest road stormwater discharges under a Phase II program.

<FN1> 40 C.F.R. §122.26(b)(14)(ii) (designating facilities classified as Standard Industrial Classification 24, which includes SIC 2411 (Logging)). <FN2> See Northwest Environmental Defense Center v. Brown, et al., 640 F.3d 1063 (9th Cir. 2011); League of Wilderness Defend ers v. Forsgren, 309 F.3d 1181 (9th Cir. 2002) (holding that 40 C.F.R. § 122.27 is not an NPDES exemption for point

- source pesticide discharges associated with forestlands); North Carolina Shellfish Growers Ass'n v. Holly Ridge Associates, 278 F. Supp. 2d 65 4 (E.D.N.C. 2003) (holding that 40 C.F.R. § 122.27 is not an NPDES permit exemption for stormwater drainage ditches associated with forestlands); Envt'l Prot. Info. Ctr. v. Pacific Lumber Co., No. 01

- 2821, 2003 WL 25506817 (N.D. Cal. Oct. 14, 2003) (holding that 40 C.F.R. § 122.27 does not exempt stormwater drainage ditches associated with forestlands f rom the NPDES permit requirement); and see also Driscoll v. Adams, 181 F.3d 1285 (11th Cir. 1999) (holding that discharges of collected and channeled stormwater associa ted with timber harvest are subject to the NPDES permit requirement).
<FN3> William L. A ndreen, Water Quality Today

- Has the Clean Water Act Been a Success?, 55 Ala. L. Rev. 537, 542

- 43 (2004) (praising effectiveness of NPDES program and ability of the program to achieve results "without causing any significant harm to the economy in terms of unemployment or growth or investment"); Glicksman at 71

- 73 (indicating "[n]onpoint sources are responsible for about sixty percent of state water quality standard violations"). <FN4> Glicksman at 72; Andreen at 544 n. 36, 42; National Level Assessment at 3 (stating EPA reported that nonpoint source pollution was the dominant source of remaining surface water pollution).
<FN5> See Andreen at 548

- 50, 592 (describing hallmarks of NPDES regulation that have made it a successful program); Glicksman at
63

- 64, 71

- 73, 77

- 78.

Response Please refer to Response 3, Response 4, Response 7, Response 8, Response 10, Response 11, Response 12, Response 13, and the preamble to the final rule.



# Comment ID 0267

- A2.001.004Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 111 Author Name: Chris Winter Paul A. Kampmeier Organization: Washington Forest Law Center and Crag Law Center (obo Northwest Environmental Defense Center et al.) Issue Category: 11
5. Conclusion.

Section 402(p) of the Clean Water Act, 33 U.S.C. § 1342(p), and EPA's Phase I stormwater rule, 40 C.F.R. § 122.26, require NPDES permits for stormwater discharges associated with "industrial activity." Logging activities in state forests and on other lar ge, forested tracts owned or managed specifically for timber production are clearly "industrial" in nature, as EPA determined when it included Standard Industrial Classification 2411 ("Logging") in the Phase I rule. Accordingly, where stormwater associated with those activities is collected and discharged via point sources, NPDES permits are the appropri ate regulatory tool, as Congress determined in section 402(p). If EPA chooses to develop an additional program to address stormwater discharges from forest roads, including inactiv e and

non

- industrial logging roads, we respectfully request that EPA ensure that the program is as stringent as practicable so that it actually functions to protect water quality.

Response Please refer to Response 8. Refer also to Response 12, Response 13, and the preamble to the final rule.



# Comment ID 0269

- A1.001.003

Author Name: Chris Winter Paul Kampmeier Organization: Washington Forest Law Center and Crag Law Center (obo Northwest Environmental Defense Center et al.) Issue Category: 11 As to the substance of EPA's proposal, the Conservation Groups request that EP A abandon its effort to amend the Phase I stormwater rule as it pertains to discharges from active, industrial logging roads, and that EPA also adopt and implement a Phase II pro gram for inactive, nonindustrial and other forest roads as soon as possible. A s EPA recognizes, "[s]tormwater discharges from logging roads, especially improperly constructed or maintained roads, may introduce significant amounts of sediment and other pollutants int o surface waters and, consequently, cause a variety of water quality impacts." 77 Fed. Reg. at 30476. Where such discharges occur along active, industrial logging roads they do, and should, require NPDES permits. Where such discharges occur along other forest roads, th ey should be subject to a rigorous Phase II program tha t protects water quality.

1. The Clean Water Act requires EPA to regulate stormwater discharges associated with industrial logging activities.

Active, industrial logging roads should remain regulated under EPA's Phase I rule because they generate "stormwater discharges associated with industrial activity." See 33 U.S.C. § 1342(p)(2); Northwest Environmental Defense Center v. Brown, 640 F.3d 1 063, 1085 (9th Cir. 2011). In the most recent Federal Register notice, EPA recognizes that if a point source discharge is "associated with industrial activity," it must be regulated pursuant to the NPDES permit program. 77 Fed. Reg. at 53835. In a footnote, EPA st ates that it is not "conceding that discharges of stormwater from logging roads constitute point sou rce discharges * * *." 77 Fed. Reg. at 53835. Yet EPA also fails to explain how it could exclude discharges from pipes, ditches and channels associated with logging roads from the definition of point source.

Of course EPA cannot create such an exemption. The Clean Water Act includes a specific and broad definition of "point source" thatChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 112 includes "any pipe, ditch [or] channel * * *." 33 U.S.C. § 1362(14) (emphasis added). And EPA regulations have long defined t he term "discharge of a pollutant" to include "additions of pollutants into waters of the United States from: surface runoff which is collected or channelled by man." 40 C.F.R. § 122.2 (emphasis added). Courts have therefore held that the plain language of the Silvicultur al Rule does not, and cannot, redefine logging road point sources as non

- point sources. Northwest Envt'l Defense Ctr., 640 F.3d at 1080; League of Wilderness Defenders/Blue Mountains Biodiversity Project v. Forsgren, 309 F.3d 1181, 1185

- 86 (9th Cir. 2002); Natural Res. Def.
Council v. Costle, 568 F.2d 1369, 1377 (D.C. Cir. 1977); Environmental Protection Information Ctr. v. Pac. Lumber Co., 2003 WL 25506817 (N.D. Cal. 2003). According to the statutory definition of point source, pipes, ditches and channels are point sourc es and must
be regulated as such.

Nor can there be any question that logging is an industrial activity. In the September 4, 2012 Federal Register notice EPA st ates: "This notice proposes adding language to the existing stormwater regulations to clarify that, for the pu rposes of assessing whether stormwater discharges are ‘associated with industrial activity,' the only facilities under SIC 2411 that are ‘industrial' are: rock crus hing, gravel washing, log sorting, and log storage." 77 Fed. Reg. at 53835. However, in promulgating the Phase I rule, EPA without reservation or exception included SIC code 24, including SIC code 2411, on the list of facilities considered to be engaged in industrial act ivity. 40 C.F.R. § 12.26(b)(14)(ii). As the Ninth Circuit held in Northwest Environmental Defense Center: "[i]t is undisputed that ‘logging,' which is covered under SIC 2411 (part of SIC 24), is an ‘industrial activity.' SIC 2411 defines ‘logging' as ‘[e]stablishments prim arily engaged in cutting timber and in producing . . . primary forest products or wood raw materials . . . in the field." 640 F.3d at 1083

- 84.

EPA's original inclusion of logging on the list of regulated industries implements the plain meaning of the statutory languag e. See 40 C.F.R. §122.26(b)(14)(ii) (designati ng facilities classified as Standard Industrial Classification 24, which includes SIC 2411 (Logging)). The ordinary meaning of "industrial" is "of, connected with, or resulting from industries"; the dictionary defines "industry, " in turn, as "any particula r branch of producing, esp. manufacturing, enterprise" or "any large

- scale business activity." Webster's New World Dictionary 689

- 90 (3rd ed. 1988). EPA therefore cannot limit the Phase I rule to only four specific activities associated with industrial log ging.

There can be little question that logging - cutting trees in the field as defined by SIC 2411 - is an industrial activity. Modern day logging involves extensive large

- scale harvesting operations across large swaths of land, which requires a wide va riety of heavy machinery, including harvesters and "feller bunchers," skidders and forwarders, log loaders, massive trucks for hauling the logs to sawm ills, and extensive heavy machinery used to grade, gravel and maintain the haul routes. <FN1>

Furthermore, the preamble and response to comments for the Phase I rule also clearly demonstrate that logging is an industria l activity for purposes of the Phase I permitting program. In discussing the scope of the term "associated with industrial activity ," EPA stated that it was deciding to "exclude from the definition of industrial activity, as § 122.26(b)(14) of today's rule, those facilities that are generally classified under the Office of Management and Budget [SIC] as wholesale, retail, service, or commercial activities." 55 Fed. Reg. at 48007 (emphasis added). Logging does not fit within any of those categories. Moreover, EPA stated that "facilities identified by SIC 24 (except 2434) . . . are expected to have the following activities, processes occ urring on

- site: storing raw materials; . . . the use of unhoused manufacturing and heavy industrial equipment; and generating significant dust or particulates.." Id. EPA therefore c oncluded explicitly that "these are classes of facilities which can be view ed as generating stormwater discharges associated with industrial activity requiring a permit." Id. For more than twenty years, EPA has acknowledged the plain fact that logging is an industrial activi ty.

Indeed, federal and state governments refer to log ging as industrial. The Bureau of Labor Statistics and the Oregon Employment Department state that the forestry and logging subsector is made of three industries, one of which is "logging." <FN2> Accord ing to the North American Industry Classification Syst em, which has largely replaced the Standard Industrial Classification system, logging isChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 113 listed as industrial code 1133. <FN3> The U.S. Census Bureau states with regard to NAICS 133 that "[t]his U.S. industry compr ises establishments primarily engaged in o ne or more of the following: (1) cutting timber; (2) cutting and transporting timber . . ." <FN4>

Even the timber industry itself refers to logging as industrial. The American Forest and Paper Association, on a page of its website entitled "Our Industry" declares that the "forest products industry" is a "top 10 manufacturing employer in 48 states." <FN5> The National Alliance of Forest Owners states that it is focused on the "U.S. industry of private forest owners/managers and thei r business
needs."<FN6> The Oregon Forest Industries Council represents large private forestland owners and forest products manufacturing

- related firms. <FN7> The Southern Forest Product Association describes itself as "one of the foremost trade organizations in the forest produc ts industry." <FN8> The Great Lakes Timber Professionals Association states that it "has provided leadership in the Lake States forest products industry for over 65 years." <FN9> The New Mexico Forest Industry Association w orks to "[p]romote and provide pu blic relations for the forest industry and to stimulate interest, use and involvement in the forest products industry." <FN10> This list could go on and on, but the point is clear. Even the logging companies and their trade associatio ns consistently refer to logging as an "industry" and to logging activities as "industrial." There is no rational basis based on the plain meaning of the statutory language for EPA or the timber industry to back away from that characterization only in the case of a regulatory

p rogram designed to protect the environment. If EPA is to amend the Phase I rule, it must explain why "logging" is not an indu strial activity or why point

- source discharges along logging roads are not associated with industrial activity. Yet EPA has utterly failed to explain that.

2. EPA has not identified a rational basis or factual evidence that would justify limiting the reach of the Phase I rule and NPDES permit requirement to stormwater discharges from rock crushing, gravel washing, log sorting, and l og storage facilities operated in connection
with silvicultural activities.

EPA stated in the Phase I rule that "logging" is an industrial activity that generates stormwater discharges associated with industrial activity. The rule states: "[t]he followin g categories of facilities are considered to be engaging in ‘industrial activity' for purposes of paragraph (b)(14)...." 40 C.F.R. § 122.26(b)(14) (emphasis added). The rule then undisputedly includes logging on the list of r egulated industries. See id. § 12 2.26(b)(14)(ii) (listing facilities classified as SIC 24, which includes SIC 2411, "Logging"). EPA now proposes to amend the language of 40 C.F.R. § 122.26(b)(14)(ii) to limit the scope of facilities under SIC 2411 deemed to be engaging in industrial
activ ities. Specifically, the proposed rule would limit the facilities subject to the NPDES permit requirement to rock crushing, g ravel washing, log sorting, or log storage facilities operated in connection with silvicultural activities. 77 Fed. Reg. at 53835, 53836, 53838.

But EPA has failed to provide any justification, based on the plain language of the statute, as to why EPA no longer consider s logging to be "industrial activity" or why EPA believes that point

- source discharges along logging roads are not "associated with" industrial activity. 33 U.S.C. § 1342(p)(2)(B). EPA has failed to articulate any basis, much less a rational basis, for treating some ph ases of the logging process as industrial while treating other parts of that same process as non

- indus trial.

By listing SIC 241 ("logging") on the list of industrial activities subject to the Phase I rule, EPA recognized that logging is an "industrial activity" within the meaning of CWA section 402(p). Further, by attempting to capture silvicultural

- rela ted rock crushing, gravel washing, log sorting, and log storage facilities through its listing of SIC 241, even EPA's proposed rule recognizes that tho se four facilities derive their "industrial" nature from the larger process that they serve: logging. It therefore makes absolutely no sense for EPA to claim that those four facilities are industrial while also claiming that the larger process they serve is not industrial. For this reason, EPA's proposed rule is fundamentally, and irretrievably, flawed. In an y event, at a minimum, EPA must articulate a rational basis for its determination that some logging activities are industrial (rock crushing, gravel washing, log sorting, log storage) while oth ers are not (timber hauling).Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 114 A. If rock crushing, gravel was hing, log sorting, and log storage facilities operated in connection with silvicultural activities are industrial in nature, so logging and timber hauling must be industrial in nature.

The Conservation Groups submit that there is no valid way to justify treating logging and timber hauling as non

- industrial while at the same time treating rock crushing, gravel washing, log sorting, and log storage facilities as industrial activities subje ct to the Phase I rule. Rock crushing, gravel washing, log sorting and log storage facilities are not discrete industrial activities that take place on their own, they are an integral part of the larger process of logging. Indeed, those four activities are inextricably intertwined with logging

- they have no independent utility apart from what they contribute to the larger process of extracting timber from the forest and transporti ng it to the mills. Consequently, because EPA agrees that rock crushing, gravel washing, log sorting, and log storage facilities that are categorized as SIC 241 are "industrial" in nature, EPA must also agree that other activities within SIC 241 are also "industrial" in nature.

The process of getting timber out of the forest and to the mill starts with the building or upgrading of logging roads and ends with log storage and sorting at the mill. After a timber company or landowner decides to harvest timber in a particular location it mu st then evaluate the existing road network to de termine whether it provides the necessary access to the harvesting location. If existing roads already provide that access, then the timber company or landowner will prepare the road surface so the road is capable of sup porting, during all seasons when the work will be done, the heavy trucks that haul the heavy equipment and timber. If they need to build new roads to provide that access they will do that. Either way, a large part of preparing the roads involves ensuring the stormwa ter collection system is p roperly moving stormwater off the roads and ensuring that the road is properly surfaced, both of which help ensure that truck s will not get bogged down in mud during wet weather. Dumping and spreading tons and tons of gravel on the road is the usual me thod for ensuring that the road surfaces will remain operable during wet weather. Once the stormwater collection systems are in good s hape and the roads properly surfaced, the timber company or landowner can then haul in the heavy equipment it needs to build t he landings, harvest the timber, load the logs onto logging trucks, haul the timber out of the forest and to the mill, move the remaining slash into piles, and complete any other required work before moving to the next harvesting location.

In the context of logging, then, the only reason to operate rock crushing and gravel washing facilities is to obtain materials to surface th e logging roads and landings so they will support industrial logging activities. And the only reason to operate log sorting and st orage facilities is to receive the timber that is cut and hauled out of the forest. Rock crushing, gravel washing, log sorting and log storage facilities are thus inextricably intertwined with logging because they would not even exist but for the harvestin g and hauling activities. Those facilities have no independent utility

- they do not perform any function at all except to facilitate the industrial logging activities that take place. They are clearly not independent industrial activities, but are integral phases of the industrial activity of "logging."

EPA has not articulated a rational basis consistent with the Clean Water Act for categorizing some phases of the timber harve sting process as "industrial" while categorizing other phases of that same proces s as "non

- industrial." See Northwest Environmental Defense Center v. Brown, 640 F.3d at 1085 ("As we explained in NRDC v. EPA, 966 F.2d at 1306, "if[logging] activity is industrial in nature, and EPA concedes that it is [see SIC 2411], EPA is not free to c reate exemptions from permitting requirements for such activity."). At a minimum, EPA must articulate why it considers rock crushing, gravel washing, log sorting and log storage facilities to be ind ustrial but does not consider timber harvesting and haulin g to be industrial even though all the activities are part of the same process of removing timber from the forest and transporting it to the mills.

B. EPA must explain the criteria it used to decide to limit the reach of the Phase I rule's NPDES permit r equirement.

The proposed rule does not provide a discussion of what criteria EPA has applied in determining whether logging more generall y

- apartChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 115 from the four limited activities described - meets the definition of industrial activity. We therefore request clear and explicit guidance from EPA as to what criteria it has used to determine that logging more generally is not an industrial activity.

Using the criteria that EPA announced and applied during the Phase I rulemaking, logging is quite clearly an industrial activity and nothing in the proposed rule justifies treating it as anything else. As discussed above, in the preamble to the Phase I rule EPA stated that it was excluding from the definition of industrial activity facilities that were generally classified as "wholesale, retail, service, or commercial activities." 55 Fed. Reg. at 48007. Clearly, logging does not fit into any of the above categories. Similarly, in the Phase I preamble EPA noted that activities included in the original list of industrial activities, including explicitly SIC 2411 (logging), are expected to involve the storage of raw materials, the use of heavy industrial equipment, and the generation of significant am ounts of dust and particulates. Id. As EPA initially found in 1990, logging and logging roads clearly meet those criteria. The criteria announced in the Phase I rule therefore clearly indicate that logging must be considered an industrial activity. At the same time, those crite ria do not provide any basis for EPA's propose d amendment to the Phase I rule.

Moreover, the criteria that EPA purportedly used to identify nonpoint source silvicultural activities are in conflict with th e Clean Water Act. EPA stated that it had used three criteria to identify nonpoint sources assoc iated with silvicultural activities:

(i) The pollutants discharged are induced by natural processes, including precipitation, seepage, percolation, and runoff;

(ii) The pollutants discharges are not traceable to any discrete or identifiable facility; a nd

(iii) The pollutants discharged are better controlled through the utilization of best management practices.

41 Fed. Reg. 24709, 24710 (June 18, 1976).

All three of these criteria are clearly in conflict with Section 402(p) of the statute. With res pect to the first criteria, section 402(p) only applies to stormwater - i.e. stormwater discharges that are "induced by precipitation." Congress has therefore spoken directly to this issue and determined that stormwater discharges that are induced by preci pitation and associated with industrial activity must be regulated pursuant to the NPDES permit program. The same can be said with respect to each of the other two criteria as well. Regardless of whether or not storm water can be traced to any discrete or identifiable facility, it must be regulated if it is "associated with industrial activity." Congress, in fact, required that municipal stormwater, which is clearly not traceable to a discrete facility, be s ubject to the NPDES permitting program, 33 U.S.C. § 1342(p)(2)(C)

- (D), and this criteria is not embodied in the statutory language of Section 402(p)(2). Similarly, Congress has not granted to EPA the discretion to exempt sources of stormwater listed in Section 402(p) (2) from the NPDES permit program based on whether or not best management practices would provide a useful means of controlling pollution. EPA may have discretion to do so with respect to sources not listed in 402(p)(2) through the procedures outlined in Section 402(p)(5)

- (6), but the applicability or usefulness of BMPs has no role to play in identifying "industrial activity" that is subject to the NPDES permitting program. Rather, those BMPs can be incorporated into the permits that are developed by state agencies on a

state

- by

- state basis.

E PA has set forth no criteria or explanation for how its decision to amend the Phase I rule falls within the discretion delegated to the agency by statute. The original rationale set forth by the agency in 1976 for designating four limited activities as the only ones subject to the NPDES permit program clearly conflict with the amendments to the Clean Water Act made by Congress in 1987. Furthermore, t he criteria EPA used to designate "industrial activities" in 1990 clearly apply to logging activities in gene ral and logging roads in particular. EPA must do more to explain the basis for its decision to amend the Phase I rule.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 116 <FN1> http://en.wikipedia.org/wiki/Harvester (forestry). A complete catalogue of logging machinery and equipment is
available on the Forestry Department’s website at Virginia Tech University. See http://web1.cnre.vt.edu/harvestingsystems/. For a video of a harvester at work, see http://www.youtube.com/watch?v=QQmtEdOphy8&feature=related. Examples of typical log loaders doing
the ir jobs are here: http://www.youtube.com/watch?v=13m4zx4shqU&feature=related; http://www.youtube.com/watch?v=PHT0

- GKxi9s. For photos of various kinds of logging trucks, see http://en.wikipedia.org/wiki/Logging_truck. <FN2> http://www.qualityinfo.org/olmisj /ArticleReader?itemid=00006527 <FN3> http://www.bls.gov/iag/tgs/iag113.htm <FN4> http://www.census.gov/epcd/ec97/def/1133.HTM <FN5> http://www.afandpa.org/ourindustry.aspx?id=438 <FN6> http://nafoalliance.org/about

- nafo/ <FN7> http://www.bls.gov/iag/tgs/iag113.htm; http://www.ofic.com/ <FN8> http://sfpa.org/about/ <FN9> http://timberpa.com/association/about

- us <FN10> http://www.nmfia.net/index.php?option=com_content&view=section&layout=blog&id=5&Itemid=6

Response Thank you for your comments. The EPA has reviewed all comment letters and responded to the comments received on the proposed rule. Please refer to Response 3, Response 4, Response 7, Response 8, Response 9, Response 10, Response 11, Response 12, Response 1 3, and the preamble to the final rule.



# Comment ID 0269

- A1.001.005

Author Name: Chris Winter Paul Kampmeier Organization: Washington Forest Law Center and Crag Law Center (obo Northwest Environmental Defense Center et al.) Issue Category: 11 D. Industrial logging roads are "immediate access roads" and EPA's interpretation to the contrary is incorrect.

EPA also appears to believe that the logging roads at issue in NEDC v. Brown, and others like them, do not qualify as "immedi ate access
roads" as that term is used in the Phase I rule. EPA states:

The EPA considers ‘immediate access roads' to refer to roads which are exclusively or primarily dedicated for use by the indu strial facility. 55 Fed. Reg. 47990, 48009 (Nov. 16, 1990). These ‘immedia te access roads' do not include public access roads that are state, county, or federal roads such as highways or Bureau of Land Management roads which happen to be used by the facility.

77 Fed. Reg. at 53836. EPA then states: "Unlike ‘immediate access ro ads' associated with industrial facilities, many logging roads have multiple uses, including recreation and general transportation, and commonly extend over long distances (i.e.; may not provid e ‘immediate access' to an industrial site)."Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 117 EPA appears to misunderstand key facts about the roads at issue in the Northwest Environmental Defense Center case. The two roads at issue in that case are located within the Tillamook State Forest, a state forest that is wholly

- owned by the State of Oregon and that is

m anaged year

- round for timber harvest. The roads are designated in numerous timber sale contracts as the access roads for specific logging sites covered by the contracts. And the timber sale contracts obligate the purchasers of the rights to harvest timber at those locations to maintain the two roads so that they will continue to facilitate the industrial activity that takes place. The tw o roads at issue are clearly "immediate access roads" because they are designated access routes for the industrial logging activities that take place and they are used to transport raw materials

- timber harvested in the forest. The two roads are not incidentally used for timber hauling based on the logging truck driver's decision about which route to take, as would be the case with public highways or other county roads. Rather, the truckers are obligated to use the two roads to access the sites and haul timber out of the forest. Furthermore, although the two roads may be publicly owned, they are located in a state forest that i s actively managed yearround for the production of timber. The fact that the two roads happen to be publicly

- owned does not make them any less "immediate access roads."

In any event, whatever EPA may think about the two roads at issue in NEDC v. Brown, EPA has completely failed to explain why logging roads on private industrial forest lands are not "immediate access roads" or should not be subject to the NPDES permi t

requ irement. Timber companies across the nation own large tracts of forest land that contain logging roads. Just like the roads a t issue in NEDC v. Brown, those private logging roads are built and maintained to facilitate industrial activities like hauling hea vy equipment, accessing logging operations, and transporting cut timber out of the forest. If EPA is correct that the phrase "immediate acc ess roads" does not refer to certain publicly

- owned roads, that would have no bearing on logging roads on private ind ustrial forest lands, nor would it justify excluding those roads from the NPDES permit program.

Finally, although the Ninth Circuit focused its analysis on whether the two roads qualify as "immediate access roads," the Ph ase I rule is quite clearly broad enough to capture, and require permits for, stormwater discharges along all industrial logging roads. The Phase I rule requires permits for "material handling sites" "used for the transportation or conveyance of any raw material." Additionally, the rule's narrative text is illustrative, not exhaustive, so stormwater discharges that are clearly "associated with" logging require N PDES permits even if they are not specifically listed. See 40 C.F.R. § 122.26(b)(14) ("For the categories of industries identified in this section, the term includes, but is not limited to...."). Under any of these criteria, logging roads specifically designed, built, maintained, and used for timber hauling are clearly "associated with" industrial logging activities.

E. EPA's belief that logging roads should be covered by Phase II is not a sufficient reason for amending the Phase I rule.

EPA states that, in response to the remand order in Environmental Defense Center v. EPA, it is considering addressing forest road discharges under a Phase II program developed pursuant to CWA section 402(p)(5) and (6). Specifically, in a section of the September 4, 2012 Federal Register notice entitled "rationale," EPA states: "The EPA believes that stormwater discharges from forest roads , including logging roads, should be evaluated under section 402(p)(6) of the Clean Water Act because the section allows for a broad rang e of flexible approaches that may be better suited to address the complexity of forest road ownership, management, and use."

EPA cannot exclude logging roads from the Phase I rule simply because it believes they are better addressed in a Phase II program . If EPA continues to believe that logging roads are nonpoint sources then this reasoning of EPA's is specious: CWA section 402(p) only applies to point sources, so EPA could never build a Phase II program for logging roads if they are categorically nonpoint so urces of pollution. Equally important, EPA's preference for a Phase II program is neither relevant to nor a valid basis for am ending the Phase I rule because it does not address or explain how stormwater discharges along active, industrial logging roads are not "associa ted with industrial activity." As previously noted, EPA can only exclude logging roads from the Phase I rule if EPA validly determines that logging roads do not produce stormwater discharges associated with industrial activity. That logging roads may be better addr essedChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 118 through a Phase II program is irrelevant to that determination.

The September 4, 2012 Federal R egister notice fails to articulate a rational basis for EPA's proposal to exempt the cutting and hauling of timber from the definition of "industrial activity." Because EPA has not explained how the proposed rule is consistent with t he Clean Water Act, the Conservation Groups respectfully request that EPA abandon the proposed rule. Additionally, if EPA decides to finalize the proposed rule, EPA must evaluate the environmental impacts of changing the rule before finalizing any amendment that narr ows its

regu latory scope.

Response Thank you for your comments. The EPA has reviewed all comment letters and responded to the comments received on the proposed rule. Please refer to Response 7, Response 8, Response 9, Response 11, Response 12, Response 13, and th e preamble to the final rule.



# Comment ID 0269

- A1.001.008

Author Name: Chris Winter Paul Kampmeier Organization: Washington Forest Law Center and Crag Law Center (obo Northwest Environmental Defense Center et al.) Issue Category: 11
5. Conclusion.

Section 402(p) of the Clean Water Act, 33 U.S.C. § 1342(p), and EPA's Phase I stormwater rule, 40 C.F.R. § 122.26, currently require NPDES permits for stormwater discharges associated with "industrial activity." Logging activities in state forests and on o ther large, forested tracts owned or managed specifically for timber production are clearly "industrial" in nature, as EPA determined whe n it included Standard Industrial Classification 2411 ("Logging") in the Phase I rule. Even EPA recognizes that many lo gging roads are associated with industrial activity: "[p]rivate 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." 77 Fed. Reg. at 30,475. Logging roads facilitate industrial

- scale timber harvest by providing ingress and egress for logging sites, by supporting the hauling of heavy equipment in and out of forests managed primarily for timber harvest, and by supporting the hauling of timber to mills. Logging roads are an integral part of the industrial process of obtaining raw timb er and turning it into finished products. Where those logging roads use pipes, ditches and channels to di scharge stormwater to waters of the U.S., section 402(p)(2) of the Clean Water Act requires those discharges to be authorized by an NPDES permit. EPA should therefore abandon its effort to amend the Phase I rule to overturn the court of appeals' decision i n Northwest Environmental Defense Center v. Brown.

EPA should also build a Phase II program to address stormwater discharges along inactive, non

- industrial, and other forest roads, in response to the remand order in Environmental Defense Center v. EPA, 344 F.3d 832 (9th Cir. 2003). That program should be regulatory, not voluntary, and it should not replace the Phase I permit requirement for active industrial logging roads. As E PA recognizes, "[s]tormwater discharges from logging roads, especially improper ly constructed or maintained roads, may introduce significant amounts of sediment and other pollutants into surface waters and, consequently, cause a variety of water quality impacts." 77 Fed. Reg. at 30476. EPA's Phase II program for forest roads should t herefore supplement EPA's Phase I regulation of active, industrial logging roads.

ResponseChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 119 Thank you for your comments. The EPA has reviewed all comment letters and responded to the comments received on the proposed rule. Please refer to Response 8, R esponse 9, Response 10, Response 11, Response 12, Response 13, and the preamble to the final rule.



# Comment ID 0269.001.001

Author Name: Chris Winter Paul Kampmeier Organization: Washington Forest Law Center and Crag Law Center (obo Northwest Environm ental Defense Center et al.) Issue Category: 11 These comments are submitted on behalf of numerous groups that oppose an NPDES permit exemption for stormwater discharges alo ng active, industrial logging roads but that support EPA's development of a Phase II regulatory program for stormwater discharge s a long
other forest roads.

Response Please refer to Response 8. Refer also to Response 13 and Response 15.



# Comment ID 0270

- A1.001.004

Author Name: Ostermayer G. Organization: University of Montana Issue Category: 11 Feasibility of Applying NPDES Permitting Requirements to Stormwater Runoff from Logging Roads

Assuming the Silviculture Rule is not upheld by the Supreme Court and a modified point source definition does not pass throug h Congress, the EPA will need to adopt a manageable permitting procedure for logging roads within the National Pollution Discha rge Elimination System (NPDES) program. A specific and manageable NPDES permit at federal and state levels to deal with logging r oads can be adapted from currently existing permitting procedures within the NPDES Stormwater Program, since the program already c o vers stormwater discharges from construction and industrial activities. EPA and the states have already crafted workable permit so lutions to handle a variety of point source discharges, including municipal stormwater (which includes extensive networks of r oads), stormwater runoff from industrial facilities (and associated access roads), and stormwater runoff from construction sites larger than one acre (including associated roads). Two permitting programs in particular, EPA's Multi

- Sector General Permit (MS GP) for industrial stormwater discharges and Construction General Permit (CGP) for construction sites, and their associated state permits, are a pplicable to logging roads, since they emphasize the creation of Stormwater Pollution Prevention Plans (SWPPP), the implementation of Best Management Practices (BMPs), effluent turbidity standards, and monitoring of stormwater discharges. These general permits are applicable to industrial and construction

- related activities occurring over large areas with multiple access roads; one NPDES permit could feasibly cover the logging roads of an entire logging operation.

Because the majority of states hold jurisdictional control over their own NPDES permit program, as authorized by the EPA, NPD ES permits will not amount t o regulatory redundancy. Current states' Forest Practices Acts, Streamside Management Acts, and Habitat Conservation Plans will guide the regulatory requirements for each state. Rather than a nationwide, one

- size

- fits

- all approach that fails to
account for climatic, geologic, and topographic variation, as is often stated as an argument against regulation, the BMPs adopted as regulatory standards will still be regionally specific. The main difference will be the non

- voluntary nature of the BMPs. The fact tha tChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 120 regulatory facets of states' current Forest Practices Acts and Streamside Management Acts will be absorbed into NPDES permitt ing requirements is simply a fact of progress, not of redundancy.

Response Please refer to Response 7 and Response 8. Refer also to Response 5, Response 13, and the preamble to the final rule.



# Comment ID 0270

- A1.001.006

Author Name: Ostermayer G. Organization: University of Montana Issue Category: 11 If the EPA is compelled to regulate stormwater runoff from logging roads, the use of NPDES permits will significantly increase accountability of logging operations and significantly increase implementation of BMPs (which, in most cases, have proven eff ective). These general NPDES permits can be feasibly adapted from MSGP and CGP Permits within the NPDES stormwater program. Point source regulation of stormwater from logging roads will also increase monitoring requirements, which will significantly advan ce state knowledge of its own water quality within logging areas.

Although it can be argued that regulatory permits will significantly increase compliance costs of logging operations, especia lly for private forest

- owners, this increased compliance cost is a necessary step in ensu ring the accountability of logging operations nationwide and conforming to the legal application of the CWA. Runoff from logging roads, through ditches, channels, and culverts, falls under the legal definition of point source, which the Silviculture Rule c annot legally modify. The application of a regulatory framework at state and federal levels will also create jobs in the permitting and compliance sector of state and federal governments. Before mov ing forward with this point source regulation, however, th e EPA will need to explicitly define what constitutes a logging road, to include both current and legacy roads associated with logging activities. Without that specification, water quality impairments from logging roads will still persist.

Response Please refer to Response 13 and to the preamble to the final rule. Refer also to Response 7, Response 8, Response 11, Respons e 12, and Response 15.



# Comment ID 0273

- A1.001.004

Author Name: Snyder William Organization: State of California Natural Resou rces Agency Issue Category: 11 California contains approximately 16.6 million acres of commercial timberland (federal, private, state, county, and municipal ), with about 7.3 million acres privately owned timberland under CAL FIRE's regulatory jurisdictio n. These lands contain tens of thousands of miles of forest, ranch, and utility access roads. While a significant portion of these roads are used for timber operations, most of them are also used for multiple purposes such as recreation, access for wildla nd fire fighting, and access for maintenance for power transmission lines. CAL FIRE concurs with EPA that logging roads do not (except in rare circumstances which are handled differently) provi deChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 121 immediate access to an industrial site, and therefore should continue to be regulated as non

- point sources and not require National Pollutant Discharge Elimination Systems (NPDES) permits.

Response Please refer to Response 1, Response 7 and Response 8.Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 

# Issue Category 12: Assertions that the

EPA’s Revision Is In Fact Substantive

Pages 2-12 2 to 2 -12 4

Response to Public Comments

Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads

November 30, 2012

Docket #: EPA

- HQ -OW- 2012

- 0195Chapter 2: Individual Comments and Responses

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- 122 

# 12

. ASSERTIONS THAT THE EPA’S REVISION IS IN FACT SUBSTANTIVE

Comment ID 0186.001.002

Author Name: Anonymous Anonymous Organization: Issue Category: 12 The proposed forest road rule redefines the term "industrial" to exclude all facilities other than those specifically listed in the rule. Changing the legal definition of an industrial facility exceeds the EPA's rulemaking authority and undermines the original intent of the legislation.

Response Please refer to Response 10. Refer also to Response 8.



# Comment ID 0217.001.003

Author Name: Doggett Coleman Organization: Doggett Tree Farms Issue Category: 12 In addition to the adverse economic effects, most of the scientific studies that I have read indicate that the effect of logg ing on water quality is minimal. Several of our tree farms are along watersheds with a minimum amount of soil disturbance (little farming or timber harvest) and my anecdotal observation is that huge amounts of soil are carried down nearby rivers, not as the result of human activity, but
from the scouri ng action of rapid streamflow as the result of heavy rains. It is my opinion that we do not need any additional regulations for regulations sake. Before such a drastic step is taken, we should at least have scientific studies of the amount of siltat ion ad ded by both
natural occurrences and human activities.

Response Please refer to Response 12 and Response 13.



# Comment ID 0269

- A1.001.006

Author Name: Chris Winter Paul Kampmeier Organization: Washington Forest Law Center and Crag Law Center (obo Northwest Environmental Defense Center et al.) Issue Category: 12 3. Before amending the Phase I rule EPA must initiate and complete consultation under Section 7 of the Endangered Species Act , 16 U.S.C. § 1536.

Although EPA asserts in the September 4, 2012 Federal Register notice that the proposed rule change will not have any environ mental impacts, in fact the proposed rule change itself demonstrates that EPA is rolling back the Phase I rule to reduce the number and kinds ofChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 123 polluting activities that require NPDES permits. The U.S. Court of Appeals for the Ninth Circuit clearly held that stormwater discharges from pipes, ditches and channels along active, industrial logging roads require NPDES permits under the e xisting NPDES permit regulations as written. Northwest Environmental Defense Center v. Brown, et al., 640 F.3d 1063 (9th Cir. 2011). And EPA has repeatedly recognized that logging road stormwater pollution is a widespread and chronic pollution source that impairs water quality and can adversely affect aquatic ecosystems. 77 Fed. Reg. at 30476. Because EPA is changing the rules to eliminate the NPDES perm it requirement for logging roads, and because that change will reduce the protections available for aquat ic species and waters subject to the Clean Water Act, EPA must initiate and complete consultation under section 7 of the Endangered Species Act to ensure that the proposed rule change will not jeopardize listed species or adversely designated critical habi tat. EPA must evaluate the impacts of eliminating NPDES permits for discharges from industrial logging roads before EPA finalizes the proposed rule change.

Section 7 of the Endangered Species Act requires federal agencies to evaluate expected impacts to listed species and designated critical habitat before authorizing, funding, or taking any discretionary action. 16 U.S.C. § 1536(a)(2); National Association of Home builders v. Defenders of Wildlife, 551 U.S. 644, 669 (2007). The consultation process is int ended to ensure that planned agency actions do not risk jeopardizing the continued existence of listed species. The consultation process also offers valuable protections against the risk of a
substantive ESA violation and ensures that environmental concern s will be properly factored into the decisionmaking process as intended by Congress. Natural Resources Defense Council v. Houston, 146 F.3d 1118, 1128

- 29 (9th Cir. 1998).

Federal agencies must go through the ESA section 7 consultation process if proposed actions may affect a listed species. In the Endangered Species Consultation Handbook, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (now N OAA Fisheries) note that the term "affect" is a verb that means "to bring about a change" and that

May affect [is] the appropriate conclusion when a proposed action may pose any effects on listed species or designated critic al habitat. When the Federal agency proposing the action determines that a "may affect" situation exists, then they must either initiate formal consultation or seek written concurrence from the Services that the action "is not likely to adversely affect" ... listed speci es.

The threshold for a "may effect" determination is very low. Any possible effect, whether benefici al, benign, adverse or of an undetermined character, triggers the formal consultation requirement. 51 Fed. Reg. 19926, 19949 (June 3, 1986); Final ESA Sec tion 7 Consultation Handbook (Mar. 1998). Upon the conclusion of formal consultation, the ESA directs the U.S. Fish and Wildlife Service or the NOAA Fisheries Service to issue a biological opinion detailing how the agency action affects the species. 16 U.S.C. § 153 6(b)(3)(A).

These statutory requirements apply here. EPA's proposal to eliminate the NPDES permit requirement for stormwater discharges from industrial logging roads is a discretionary federal action that may affect aquatic and other species that are listed and prot ected under the Endangered Species Act. Indeed, there is ample information demons trating that stormwater discharges from logging roads are a significant source of pollution that is adversely affecting water quality and listed species. We discussed these impacts in d etail in the Conservation Groups' June 22, 2012 comment letter, and we hereby incorporate by reference that letter and all the materials referenced therein. As is plain from our June 22 letter and supporting materials, sediment discharged from culverts, ditches, and channe ls along logging roads still fouls rivers and streams across the United States. State efforts to control these impacts have often failed, as evidenced by the extensive miles of streams listed by the EPA and states as water qualitylimited, as well as by the many listings of im periled aquatic species under the Endangered Species Act. It is therefore critical that the EPA continue to regulate and require NPDES permits for stormwater discharges from logging roads.

As we stated in our June 22, letter:Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 124 According to an EPA

- commissioned report, "forestry

- related s ediment is a leading source of water quality impairment to rivers and streams nationwide." <FN11> Remarkably, EPA indicates that "up to 90% of the total sediment production from forestry operatio ns" comes from logging roads and steam crossings.<FN12> A sig nificant portion of this sediment is collected and discharged directly into rivers and streams through ditches, channels, and culverts. <FN13> In some areas of the Pacific Northwest, up to 75% of fores t road drainage systems may directly enter rivers and streams. <FN14> Sedimentation from forest roads is a serious problem that current management and regulation has failed to control, and we encourage EPA to take this opportunity to address the legacy of fores t roads and its effect on our nation's waterways.

EPA explicitly recognizes that fine sediment from forest roads "can adversely affect the survival of dozens of sensitive aqua tic biota (salmon, trout, other native fishes, amphibians, and macroinvertibrates) where these species are located." Id. EPA conc luded in the Federal Register notice that these dynamics have already been "well documented." Id. Similarly, Endicott concluded as follows :

The physical impacts of roads have detrimental effects on fish and fish habitat. Mechanisms through which roads exert these d eleterious impacts include fine

- sediment effects, changes in streamflow, changes in water temperature caused by loss of riparian co ver or conversion of groundwater to surface water, and migration barriers. The physical impacts of roads discussed above have widesp read and profound effect on fish habitat and fish communities in populations across a wide range of environments and conditi ons (Lee at al., 1997).

Endicott also notes that impacts from sedimentation can "often lead[] to complete loss of salmonid fisheries." Clearly, there can be no questions that stormwater from industrial logging roads and forest roads are harming and will continue to harm beneficial uses without adequate regulation.

Given the well

- documented harm caused by logging road pollution, EPA must initiate ESA consultation with the U.S. Fish and Wildlife Service and NOAA Fisheries before EPA eliminates the NPDES p ermit requirement for stormwater discharges from industrial logging
roads.

<FN11> Endicott, D. 2008. National Level Assessment of Water Quality Impairments Related to Forest Roads and Their Prevention by Best Management Practices – Final Report (Prepared for the U.S. Environmental Protection Agency, Office of Water, Office of Wastewater Management Permits Division) (Contract No. EP -C- 05

- 066, Task Order 002), at 2 (citing EPA’s 2000 and 2002 National Water Quality Inventories). <FN12> Guidance Specifying Management Measures For Sources of Nonpoint Pollution in Coastal Waters, EPA Guidance Paper
840 -B- 93

- 001c, at 27 (1993); see also Endicott at 9.
<FN13> Endicott at 43

- 44, 49. <FN14> Id.; See also Mills, Keith, P.E., Oregon Department of Forestry, Forest Road s, Drainage and Sediment Delivery in the Kilchis
River Watershed 4

- 5 (Tillamook Bay National Estuary Project, June 1997), available at www.oregon.gov/ODF/privateforests/docs/kilchis.pdf [hereinafter “Mills Report”] (citing studies indicating 25 to 75% of f orest road drainage directly enters streams and rivers).

Response Thank you for your comments. The EPA has reviewed all comment letters and responded to the comments received on the proposed rule. Please refer to Response 7, Response 8, Response 9, Res ponse 10, Response 11, Response 12, Response 13, and the preamble to the final
rule.Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 

# Issue Category 13 : Definitions of the Terms Forest Road or Logging Road

Pages 2-12 5 to 2 -12 9

Response to Public Comments

Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads

November 30, 2012

Docket #: EPA

- HQ -OW- 2012

- 0195Chapter 2: Individual Comments and Responses

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- 125 

# 13

. DEFINITIONS OF THE TERMS FOREST ROAD OR LOGGING ROAD

Comment ID 0188

- A1.001.004

Author Name: Koehn Steven Organization: Maryland Department of Natural Resources (MD DNR) Issue Category: 13 We understand that EPA has a larger task ahead in determining how to treat the broader category of "forest roads" (of which l ogging roads are a subset) under the Clean Water Act Section 402(p)(6). We see this as a ve ry difficult and challenging task starting with simply defining the term "forest road" and then going on to address the multiple jurisdictions, ownerships and physical conditions t hat will be encompassed by your deliberations.

Response
Please refer to Response 11. Refer also to Response 13.



# Comment ID 0189

- A1.001.004

Author Name: Morgan Charlie Organization: Mississippi Forestry Commission (MS FC) Issue Category: 13 We understand that EPA has a larger task ahead in determining how to treat the broader category of "forest roads" (of which logging roads are a subset) under the Clean Water Act Section 402(p)(6). We see this as a very difficult and challenging task startin g with simply defiling the term "forest road" and then going on to address the multiple jurisdictions, ownerships and physical conditions that will be encompassed by your deliberations. We look forward to the results of this review and will continue to offer input as the oppo rtunity
arises.

Response Please refer to Response 11. Refer also to Response 13 and the preamble to today's rule.



# Comment ID 0191

- A1.001.004

Author Name: Garrison, III Carl Organization: Virginia Department of Forestry (VA DF) Issue Category: 13 We understand that EPA has a larger task ahead in determining how to treat the broader category of "forest roads" (of which l ogging roads are a subset) under the Clean Water Act Section 402(p)(6). We see this as a very difficult and challenging task starti ng with simply defming the term "forest road" and then going on to address the multiple jurisdictions, ownerships and physical conditions th at will be encompassed by your deliberations.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 126 Response Please refer to Response 11 and Response 13.



# Comment ID 0192

- A1.001.004

Author Name: Casey Linda Organization: Alabama Forestry Commission (AL FC) Issue Category: 13 We understand that EPA has a larger task ahead in determining how to treat the broader category of "forest roads" (of which l ogging
roads are a subset) under the Clean Water Act Section 402(p)(6). We see this as a very difficult and challenging task starting with simply defining the term "forest road" and then going on to address the multiple jurisdictions, ownerships and physical conditions that will be encompassed by your deliberations. We look forward to the results of this review and will continue to offer input as the oppo rtunity
arises.

Response Please refer to Response 11 and Response 13. Refer also to the preamble to today's rule.



# Comment ID 0196

- A1.001.004

Author Name: Dye Charles Organization: West Virginia Division of Forestry (WVDOF) Issue Category: 13
We understand that EPA has a larger task ahead in determining how to treat the broader category of "forest roads" (of which logging roads are a subset) under the Clean Water Act Section 402(p)(6). We see this as a very difficult and challenging task startin g with simply defining the t erm "forest road" and then going on to address the multiple jurisdictions, ownerships and physical conditions that will be encompassed by your deliberations. We look forward to the results of this review and will continue to offer input as the oppo rtunity
arises.

Response Please refer to Response 11. Refer also to Response 13 and to the preamble to today's rule.



# Comment ID 0199

- A1.001.003

Author Name: Owen Wib Organization: North Carolina Department of Agriculture and Consumer Services (NC DACS) Issue Category: 13 We understand that US EPA has a larger task ahead in determining how to treat the broader category of "forest roads" (of whic h logging roads are a subset) under the Clean Water Act Section 402(p )( 6). This will certainly be a daunting task, starting with simply defining the term "forest road" and then addressing the multiple jurisdictions, ownerships and physical conditions that must be considered when evaluating storm water management options.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 127 Response Please refer to Response 11. Refer also to Response 13 and to the preamble to today's rule.



# Comment ID 0199

- A2.001.003

Author Name: Owen Wib Organization: North Carolina Department of Agriculture and Consumer Services (NC DACS) Issue Category: 13 However, it is concerning that USEPA appears to be making a distinction between the status of the Phase 1

- NPDES exemption for "logging roads" versus "forest roads." A road that is constructed or maintained upon forestland for the purposes of forest ma nagement and associated silvicultural activities may be used interchangeably for logging purposes or other forestry I silvicultural pu rposes. The same processes are used to manage storm water runoff and nonpoint source pollution from a road that exists within a forest, regardless of whether a specific road or road segment is intended for logging or other forestry use.

We urge the USEP A to revise NPDES regulations to specify that stormwater discharges from all "forest roads" are exempt from permitting requirements; not just logging roads.

Response Please refer to Response 11. Refer also to the preamble to today's rule.



# Comment ID 0247

- A1.001.004

Author Name: Geissler George Organization: Oklahoma Department of Agriculture, Food, and Forestry (OK DAFF) Issue Category: 13 We recognize that EPA has a difficult and challenging task ahead in determining how to treat the broader category of "forest roads" (of which logging roads are a part) under the Clean Water Act Section 402(p)(6). Defining the term "forest road" and then pr escribing ways to address the multiple jurisdictions, ownerships, physical conditions and actual uses of those roads will require close coll aboration with
the states and other stakeholders.

Response Please refer to Response 11, Response 12, and Respo nse 13.



# Comment ID 0250

- A1.001.005

Author Name: Daugherty Peter Organization: Oregon Department of Forestry (OR DF) Issue Category: 13Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 128 We recognize that this rulemaking presents a difficult and challenging task, starting with simply defining the term "forest road" to addressing the multiple jurisdictions, ownerships, users, and physical conditions, which are different from other stormwater discharges
addressed thus far.

Response Please refer to Response 11, Response 12, and Response 13.



# Comment ID 0268

- A1.001.006

Author Name: Jane F. Severt Elroy Zemke Organization: Wisconsin County Forests Association (WCFA) Issue Category: 13 Our primary concern with language in the proposed rule is how "forest roads" will be defined. There is uncertainty regarding the unclear use of "forest roads" versus "logging roads". As natural resource professionals working to sustainably manage a public resour ce we feel this ambiguity is reason for concern. Further definition of "forest roads" is necessar y to provide proper guidance to resource managers. The true intent of the proposed rule remains unknown until further clarification can be provided.

Response Please refer to Response 11.Refer also to Response 5, Response 6, Response 13, and the preamb le to the final rule.



# Comment ID 0276

- A1.001.004

Author Name: Paul DeLong Ken Johnson Organization: Wisconsin Department of Natural Resources (WDNR) Issue Category: 13 We understand that EPA has a larger task ahead in determining how to treat the broader category of"forest roads" (of which logging roads are a subset) under the Clean Water Act Section 402(p)(6). We see this as a very difficult and challenging task startin g with simply defining the term "forest road" and then going on to address the multiple jurisdictions, ownerships, and physical conditions that will be encompassed by your deliberations.

Response Please refer to Response 11 and Response 13. Refer also to Response 12 and the preamble to the final rule.



# Comment ID 0277

- A1.001. 004

Author Name: O'Neill William Organization: Michigan Department of Natural Resources (MDNR) Issue Category: 13 We understand that EPA has a larger task ahead in determining how to treat the broader category of "forest roads" (of which l oggingChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 129 roads are a subset) under the Clean Water Act Section 402(p)(6). We see this as a very difficult and challenging task starting with simply defining the term "forest road" and then going on to address the multiple jurisdictions, ownerships and physical conditions that will be encompassed by your deliberations.

Response Please refer to Response 11 and Response 13. Refer also to Response 12 and Response 15.Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads



# Issue Category 15 : Impacts of St ormwater Discharges From Forest Roads and Existing Programs for Addressing Them

Pages 2-1 30 to 2 -17 4

Response to Public Comments

Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roa ds

November 30, 2012

Docket #: EPA

- HQ -OW- 2012

- 0195Chapter 2: Individual Comments and Responses

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- 130 

# 15

. IMPACTS OF STORMWATER DISCHARGES FROM FOREST ROADS AND EXISTING PROGRAMS TO ADDRESS THEM

Comment ID 0190

- A1.001.004

Author Name: Brian S. Keiling Howard M. Persinger, Jr. Organization: West Virginia Land and Mineral Owners Association (WVLMOA) Issue Category: 15 The West Virginia Legislature passed the Logging Sediment Control Act in 1992. This law sets guidelines for logging companies to use when timbering. The law requires loggers to follow legislatively enacted Best Management Practices that prevent soil erosion or run

- off that could potentially cause problems in nearby streams, rivers o r other bodies of water. Follow up studies have found that BMPs currently in use in West Virginia are effective in protecting soil and water resources. Nationwide, compliance with state BMP s has been documented to be over 90%. This is an exceptional compli ance rate for any regulatory scheme.

Response Please refer to Response 15. Refer also to Response 12 and the preamble to today's rule.



# Comment ID 0194

- A1.001.003

Author Name: O'Rourke, Sr. Thomas Organization: Yurok Tribe Issue Category: 15 The Tribe is committed to managing roads within the Yurok Reservation in a manner that protects water quality. The Tribe has an active Forestry Department overseen by its Director, James Erler, a California Registered Professional Forester. Furthermore, Bu reau of Indian Affairs (BIA) has a process to review timber harvest operations on the Yurok Reservation and requires roads to be built and m aintained with Best Management Practices (BMPs) to meet or exceed those BMPs listed in the Pacific Regional Handbook for Logging Practices. Finally, the National Marine Fisheries Service and the US Fish and Wildlife Service approved the Yurok Habitat Conservation P lan (HCP) for 22,237 acres of fee lands the Yurok Tribe purchased in 2011. The HCP has stringent requiremen ts for the assessment and management of roads for this property, including accelerating road upgrading and decommissioning to reduce road

- related sediment delivery to streams.

The Yurok Tribe maintains gravel roads on the Yurok Reservation that are on th e BIA road inventory list consistent with the 5 Counties Salmonid Conservation Program and its Water Quality and Stream Habitat Protection Manual for County Road Maintenance in Northwestern California Watersheds. More information on this program and the ma nual is available at: www.5counties.org. In addition, the Yurok Tribe Environmental Program has a proven track record of successfully permitting government actions on the Yurok Reservation to protect water quality. This includes issuing water quality certifications to the California Department of Transportation (CalTrans), Humboldt County, and Del Norte County for road repair projects.

As described above, the Yurok Tribe currently manages its forest roads under an extensive combination of tribal and federa l regulation and voluntary guidelines. This is true for many other tribes as well.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 131 Response Please refer to Response 15.



# Comment ID 0195

- A1.001.003

Author Name: Leonard Young Ted Sturdevant Organization: State of Washington Department of Natural Resources and State of Washington Department of Ecology (WA DNR and Ecology) Issue Category: 15 Washington State's historic Forests & Fish Law (Forests & Fish) put in place a system of forest practice safeguards for priva te and state land managers that is among the most protective in the nation, while maintaining a stable regulatory environment. Under approved road maintenance and abandonment plans, the objective is to achieve disconnection between the road network and the stream system a nd fully mitigat e sediment delivery at stream crossings. We estimate that a total of 21,390 miles of road have been brought up to standards or permanently retired by state and industrial landowners, and estimate the work will be fully completed between 2016 and 202 1.

We take great pride in the hard work Washington's forest landowners have done to make forest roads protective of water qualit y. Any option considered by EPA for addressing forest roads must recognize states with programs that have strong standards and crit eria, such as ours, as functionally equivalent. We also caution that a new rule

- based system should maintain the values of regulatory and legal stability that are central to Washington's approach.

As you may know, Washington's system recognizes that uni que considerations should be applied with respect to different land ownership and management categories. EPA should do the same. Requirements to address the unique challenges faced by small for est landowners should be different from those applicable to lar ger land managers. Federal land managers present another unique challenge. The United States Forest Service is party to a Memorandum of Agreement with the Washington State Department of Ecology to abi de by Forests & Fish standards. Achieving water quality protection is impossible without equitable requirements for this portion of the forest roads system.

Response Please refer to Response 15. Refer also to Response 13.



# Comment ID 0197

- A1.001.003

Author Name: Bonnet Michelle Organization: Alaska Department of Environmental Conservation (AK DEC) Issue Category: 15 The State of Alaska's (State) promulgated statues and implementing regulations provide adequate water quality protection from

stormwater

- related discharges from forest roads, including logging roads. The State also manages forest roads through regulations developed under the direction of the "Alaska Forest Resources and Practices Act." The Alaska Department of Natural Resources is the lead agency for administration of the Act and its imp lementing regulations. DEC is the lead agency for water quality management and has approved the regulations as constituting the nonpoint source pollution control requirements for forest practices activiti es in the stateChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 132 (Alaska Statute Sec. 41.17.055(d) and Alaska Administrative Code (AAC) 11 AAC 95.185(h)).

Included in the regulations are several sections specific to road construction, maintenance, and closure (see 11 AAC 95.285 - .335). These regulations are comprehensive and are briefly summarized below:

Road Location: Includes direction to minimize the nu mber of stream crossings and to avoid marshes and wetlands.

Road Construction: Specifies Best Management Practices (BMPs) for controlling erosion and sedimentation during road construct ion.

Road Drainage: Sets minimum drainage standards such as spacing o f cross drainage culverts and includes BMPs to minimize erosion in
ditches.

Bridge Standards: Specifies bridge installation requirements to control surface runoff and sedimentation and to minimize impacts on resident and anadromous fish.

Culverts and Other Water Crossing Provisions: Specifies hydrologic design conditions, fish passage requirements and
conditions to reduce sedimentation.

Road Maintenance: Specifies BMPs and maintenance practices to control drainage and minimize erosion of the
road surface and subgrade.

Road Closure: Specifies closure procedures to control runoff and minimize erosion.

Material Extraction and Disposal Sites: Specifies location considerations and BMPs to minimize erosion and protect water quality.

Rehabilitation after Mass Wasting: Specifies BMPs to use after mass wasting events to stabilize the slide path and
minimize erosion.

Blasting Standards: Specifies blasting standards to minimize impacts on fish

- bearing waters.

Similar BMPs have been developed by the U.S. Forest Service (USFS) and are outlined in the USFS Region 10 Soil & Water Conservation Handbook (FSH 2509.22). In 1997, the state of Alaska certified these BMPs as being consistent with those of the Alaska
Fores t Resources & Practices Regulations.

Stormwater management via BMPs is integral to water quality protection. On

- going BMP implementation and effectiveness monitoring conducted by the State of Alaska and the USFS has demonstrated that, when properly implemented, the BMPs for road constructio n, maintenance, and closure outlined in the Alaska Forest Resources & Practices Regulations and the U.S. Forest Service's Soil & Water Conservation Handbook are effective at maintaining water quality.

DEC maintains that the Alaska approach to regulating lo gging and forest roads is successful at protecting water quality and supports the
continued use of these BMP

- based programs in lieu of requiring forest roads to be permitted under Section 402 of the Clean Water Act.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 133 Response Please refer to Response 1 5. Refer also to Response 12, Response 13, and the preamble to today's rule.



# Comment ID 0199

- A1.001.005

Author Name: Owen Wib Organization: North Carolina Department of Agriculture and Consumer Services (NC DACS) Issue Category: 15
North Carolina's forestry BMPs are available in the 'Water Quality' section of our website, www.ncforestservice.gov.

Experience has shown that BMP usage, nonpoint source pollution control, and water quality regulatory compliance in the forest ry community can be achieved through targeted education, coupled with proactive site monitoring and rigorous follow

- up remedial actions. The Southern Group of State Foresters recently published the findings of forestry BMP performance from across the southern re gion of
the U.S. From t his report, we can see that the implementation ofBMPs related to forest roads in the South, on average, approaches 90 percent. Thus, if a NPDES or other permitting regime were implemented for forest roads, there would need to be a solid justif ication as

to the need to expend the significant opportunity costs associated with attempting to capture the last remaining incremental I 0 percent of forest roads in which BMP performance would appear to be in need of improvement. This 2012 regional report is availabl e from the Group's website, www.southernforests.org.

Response Please refer to Response 15. Refer also to Response 13.



# Comment ID 0199

- A2.001.004

Author Name: Owen Wib Organization: North Carolina Department of Agriculture and Consumer Services (N C DACS) Issue Category: 15 North Carolina administrative code rules entitled the Forest Practices Guidelines Related to Water Quality (abbreviated as FP Gs) were enacted in 1990 and require that all forestry sites which disturb soil to implement measures which prevent, restrain, cont rol, and/or limit sedimentation into streams and bodies of water. On average, the N.C. Forest Service conducts upwards of 3,000 to 4,000 water quality FPG compliance inspections annually. Over the last 10 years, the overall statewide compliance rate with a ll of the FPG rules has averaged around 95%. It is our feeling that this high level of compliance, which includes measures to manage runoff from fore st roads, has contributed greatly to the protection of North Carolina's water resources.

Additional stat e regulations limit certain forestry activities, including forest road placement, in an effort to protect water quality withi n geographically

- specific regions of the state. Furthermore, in 2004 the U.S. Army Corps of Engineers worked cooperatively with the N.C. Forest Service to develop guidance regarding forest roads in wetlands in an effort to minimize overall impacts to waters of t he U.S. during forest road construction and maintenance, all of which collectively addresses stormwater runoff from such road s in wetlands.

Forestry BMP Program Management and Inter

- Agency CooperationChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 134 The N.C. Forest Service is engaged in numerous aspects of forestry

- related activities across the state, including monitoring forestry sites for compliance with water quality rules. Technical BMP assistance and inspections are provided by our agency's field personnel in
alllOO counties of North Carolina. More in

- depth technical assistance is provided by the agency's Water Quality Foresters and a

state

- level team of water qualit y specialists. During the State Fiscal Year 2010

- 2011, personnel in the N.C. Forest Service recorded in excess of27,700 hours devoted to water quality and BMP program delivery statewide.

A wide range of training, education. and demonstration projects hav e been implemented in the last decade, in an effort to increase the awareness and functional knowledge of forestry BMPs with forest operators. These projects include videos, demonstrations, tra ining workshops and a temporary bridgemat loan program for logg ers to protect stream crossings when harvesting timber. The N.C. Forest Service works closely with the NC ProLogger Program to reach out to loggers across the state on the importance of using BMPs.

The N.C. Forest Service works cooperatively with the N. C. Department of Environment and Natural Resources to manage compliance, education, funding and training on how to manage nonpoint source pollution from silvicultural activities. In 2012, the agency executed a revised Memorandum of Understanding with the N .C. Division of Land Resources which describes in more detail how forestry

- related land disturbing activities in North Carolina will be monitored for compliance with the state FPG rules, and how to streamline enforcement of noncompliant situations. At this time, our agency is working with the Division of Land Resources to develop statewide workshops for interagency training to reinforce how forestry sites are inspected and what the expectations are regarding comp liance with
state rules and the use of forest ry BMPs.

Forestry BMPs and Roads

In 2006 North Carolina's forestry BMP manual was extensively revised with oversight from a multi

- disciplinary technical committee. Among the many aspects of forest management that are covered in this manual, we included detailed recommendations on managing, maintaining, constructing, and closing

- out forest roads. In addition, North Carolina has a supplemental publication for landowners for managing forest access roads in steep terrain, entitled "The Layman's Guide to Priv ate Access Road Construction in the Southern Appalachian Mountains."

Forestry BMP Monitoring, Research, and Acconntability

The N.C. Forest Service has undertaken recurring monitoring ofBMP use on forestry sites across North Carolina for nearly a de cade

. Monitoring of BMP implementation across the state was conducted over two cycles of site evaluations occurring between 2000

- 2003, and again from 2006

- 2008. More than 770 logging jobs were evaluated during these studies. Statewide, the implementation of BM Ps for forest roads were found to be 80% and 84%, respectively. Given the voluntary nature of BMPs, this relatively high rate of implementation would illustrate that forest roads are largely being managed in a manner which is sufficient to not contribute t o widespread, pervasive, or ongoing degradation of water resources. This summer, the N.C. Forest Service is undertaking a third cycle of statewide monitoring in an effort of continuous improvement.

Beginning in 2007, the N.C. Forest Service partnered wi th the USDA

- Forest Service Southern Research Station, N.C. State University Department of Forestry, and N.C. Department of Agriculture & Consumer Services Research Stations to conduct a paired

- watershed research study to evaluate the effectiveness of forestry BMPs and to identifY any significant effects of clearcut timber harvesting on a wide range of water quality parameters in multiple perennial streams of the piedmont eco

- region of North Carolina. Thus far the results indicate that when appropriate ripar ian buffers are established, and forestry BMPs are implemented, there are negligible impacts to waterChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 135 quality from clearcut timber harvesting, which includes their associated forest or logging access roads. Data collection and sampling will continue throug h 2013 at which time a full data analysis will occur and the results published in peerreviewed scientific journals. This study is similar in nature to many other BMP effectiveness studies that have been conducted across the country, nearly all of which
ind icate that forestry BMPs are effective.

The state

- implemented regulatory standards, when coupled with market

- driven forest certification programs, and the delivery of forest

cost

- share programs, collectively drive the accountability of forestry BMP implementation across North Carolina. The recurring monitoring of BMP implementation reinforces the viability and value of using BMPs. The regulatory framework in North Carolina which governs forestry activities are founded upon the use of appropriate BMPs or other equally effective measures to protect water quality. Anecdotally, our agency's personnel have seen a marked increase in the awareness and implementation of forestry BMPs as a result of increased accountability placed upon the forest industry through v oluntary forest certification programs such as SFI, FSC, and Tree Farm. Likewise, when landowners participate in federal or state cost share programs for forest management on their prope rty, the landowners are contractually obligated to implement forestry BMPs. The essence of managing non point source runoff pollution from forestry sites is based upon the flexibility for each state to identifY and implement rules, procedures, or programs which ar e most likely to have success in their respective state.

Re sponse Please refer to Response 15. Refer also to Response 13.



# Comment ID 0199

- A2.001.006

Author Name: Owen Wib Organization: North Carolina Department of Agriculture and Consumer Services (NC DACS) Issue Category: 15 In 2011 the N.C. Forest Service completed a report summarizing lessons learned from the 2006 revision of the state's forestry BMP manual. With the manual having been in

- place for a few years, we solicited customer feedback on the merits and applicability o f the new forestry BMPs and the manual itself. This report, entitled "Lessons Learned on the Revision of the North Carolina F orestrv B MP Manual" focuses on the state BMP manual; however it contains some key lessons learned which could be applicable to the USEPA's effort to address stormwater discharges from forest roads in a flexible, non

- regulatory and stakeholder

- driven process.

Since the inception of forestry BMPs over 40 years ago, much of the focus on training and education has centered upon logger s, foresters, large

- acreage land managers, and 'forest operators' who typically have a direct influence on the actions undertaken upon forestland, with regards to timber management, harvesting, road work and similar activities. One lesson learned in retros pect is that there needs to be a renewed emphasis of focus to reach nonindustrial private forest landowners. These individual or family

- owned forests are vital to the sustainability of our nation's forests, particularly in the eastern half of the United St ates. Reaching out to forest owners will be timeconsuming, costly, and challenging to quantify. But increasing our collective education and training will go a long way t owards implementing effective measures for preventing, controlling, or otherwise managi ng nonpoint source pollution from silvicultural
activities.

ResponseChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 136 Please refer to Response 15 and Response 13.



# Comment ID 0203

- A1.001.002

Author Name: Partin Tom Organization: American Forest Resource Council (AFRC) Issue Category: 15
AFRC filed an amicus brief in support of Petitioners in Decker v. NEDC and Georgia

- Pacific

- West v. NEDC based upon our belief that the Ninth Circuit Court of Appeals erred in its ruling that forest roads require National Pollutant Discharge Elimination Sys tem ( NPDES) permits under the Clean Water Act. It continues to be our position that water quality impacts from forestry operation s, including forest roads, are best addressed through best management practices (BMPs). AFRC believes EPA's silvicultural exemp tio n, which has been in effect throughout a period of significant improvement in operational controls of nonpoint pollution from fo rest roads, is valid and should be upheld by the Supreme Court.

Response Please refer to Response 1 and Response 13. Refer also to Response 12 and to the preamble to today's rule.



# Comment ID 0206

- A1.001.005

Author Name: Beardsley Michael Organization: Professional Logging Contractors of Maine (PLCM) Issue Category: 15 Second, we have worked closely with our state forester over the years in developing an effective BMP program for controlling water quality impacts from forest management activities in our state. This spring the PLC of Maine held BMP refresher trainings in conjunction with the Maine Forest Service that reached over 400 loggers. Maine's current BMP manual is written in both Englis h and French and can be found here: http://www.maine.qovidoc/mfs/pubsibmp manual.htm.

Additionally, we have worked closely with o ur members to develop a 100% voluntary point

- of

- harvest Master Logger Certification (MLC) program, offering independent third party certification of logging companies' harvesting practices. The certification s ystem is
built around standards that have been cross

- referenced to all of the world's major green certification systems, that have been adopted by several other North American states and Canadian provinces, and that have been awarded international recognition by receiving the world's first SmartLogging ® certificate from the Rainforest Alliance's SmartWood® program. In 2003, the Professional Logging Contractors of Maine formed an independent 501(c)3 organization, The Trust to Conserve Northeast Forestlands (TCNF), to admin ister the Northeast Master Logge r Certification (NEMLC) program with the broader goal of "enhancing the health of working forest ecosystems through exceptional accountability" throughout the Northern Forest region. The program has also been recognized as a source of responsibly harvested forest products throughout the forest products industry and has achieved the Forest Stewardship Council (FSC) standard for Controlled Wood and for Chain of Custody when Master Logger harvests are conducted on FSC

- certified land.

With these voluntary pro grams already resulting in significant water quality improvements from timber harvesting activities, we do not feel that an additional regulatory burden that would require a permitting process would have a significant positive environme ntal impact
that wou ld justify the permitting process. Once again thank you for your determination that the water quality issues are best address edChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 137 through state adopted BMP programs.

Response Please refer to Response 12 and Response 15. Refer also to Response 13.



# Co mment ID 0208

- A1.001.005

Author Name: Robertson Alan Organization: Pfalzerwald Tree Farm Issue Category: 15 As a forest owner, I already use both Vermont's Acceptable Management Practices (AMPs) to protect water quality, and my own, as I am a practicing civil/ sanitary engineer. In fact, I am certified to the American Tree Farm System® standards, a third

- party audited forest certification system, verifying that my practices are working on the ground to protect clean water.

On my Tree Farm, I routinely have installed water bar systems across roads and trails that are copied by many other landowner s and used
b y the county forester as an example of superior erosion control of road sediments. I have also installed sediment control on road runoff streams, and aquifer replenishment systems to stormwater detention ponds, so that no sediment leaves the road ROW, and no stormwater leaves my property.

Response Please refer to Response 12 and Response 15. Refer also to Response 13.



# Comment ID 0209

- A1.001.005

Author Name: Qualman Robert Organization: Qualman Tree Farm Issue Category: 15 As a forest owner, I already use Best Management Practices (BMPs) to protect water quality. In fact, I am certified to the A merican Tree Farm System® standards, a third

- party audited forest certification system, verifying that my BMPs are working on the g round to protect clean water.

On my Tree Farm, I hand construct water bars on logging roads to move water off the road to prevent soil erosion and use grav el to protect roads where needed, just this month I am accepting bids for pines we are selling. I n the contract documents we are requiring any road work to be in compliance with BMP's and for a bond to be posted to insure the work is done correctly. Our Consulting for ester will oversee the work. I have become certified as a "Master Tree Farmer" by the Agricultural Extension Service, and part of the training is in
BMP's. It is in our own best interest to use BMP's.

Response Please refer to Response 12, Response 13, and Response 15.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 138 

# Comment ID 0210

- A1.001.005

Author Name: Hulka Bryan Organiza tion: Slade Creek LLC Issue Category: 15 As a forest owner, I already use Best Management Practices (BMPs) to protect water quality. In fact, I am certified to the A merican Tree Farm System® standards, a third

- party audited forest certification system, verifying that my BMPs are working on the g round to protect clean water.

On my tree farm, we border estuaries for almost two miles. These estuaries have been deemed primary nursery areas by the Sta te of North Carolina and are already subject to stringent state and federal regulations. Of our 265 acre Tree Farm, 80 acres, or 30% is already tied up in forested buffers to protect water quality. Due to these regulations, these acres are passively managed, and are an economic drag on the overall management of the tree farm.

Response Please refer to Response 12. Refer also to Response 13.



# Comment ID 0211

- A1.001.002

Author Name: Lyskava Paul Organization: Pennsylvania Forest Products Association (PFPA) Issue Category: 15 PFPA is also the administrative host and sponsor of the Pennsylvania Sustainable Forestry Initiative®, which has provided training to more than 7,000 loggers, foresters and others in proper design and use of Pennsylvania's erosion and sedimentation BMP's to m inimize stormwater runoff from logging operations. Th ese BMPs are working. According to the 2010 Pennsylvania Integrated Water Quality Monitoring and Assessment Report (305/303 report), less than three

- tenths of one percent of the impaired stream miles in Pennsylvania
can be attributed to either silvicultural activities or forest roads.

Response Please refer to Response 12, Response 13, and Response 15.



# Comment ID 0215

- A1.001.005

Author Name: ZumBahlen Bruce Organization: Z Acres Tree Farm Issue Category: 15 As a family forest owner, I already use Best Management Practices (BMPs) to protect water quality. My grandparents passed on their land to me forty years ago and soon it will be in the family for 100 years. During my grand parents' ownership, it was rented for pasture to local farmers. The pasturing of cattle along the stream through our property caused severe erosion. Once I assumed ownersh ip, theChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 139 open areas were planted to spruce and pine. Now, it is certified by the American Tree Farm System® standards, a third

- party audited forest certification system, verifying that my BMPs are working on the ground to protect clean water.

Recently, I had the spruce and pine thinned as part of a planned timber harvest. The harvest area straddled a creek where three d rainages converge on the property. As required by Wisconsin's Managed Forest Law to use BMP's, I applied for three water crossing perm its from the Wisconsin Dept. of Natural Resources at a cost of $50 each. Each permit required me to show how the crossing s would be made, photos of each crossing from both sides of the streams, and posting each permit facing the stream. I also had a 50 foot buffe r marked along the stream to protect the riparian areas.

Yet, my diary farmer neighbor up stream to my prop erty can pasture his cattle without any permits where the cows routinely cross the creek causing erosion on his property and sediment in the stream flowing onto my property. This stream eventually flows into Lake Superior, three miles away. To me, EPA's focus on forest management activities that ignore far more serious problems to natural waterways is misguided.

Response Please refer to Response 12 and Response 13. Refer also to Response 15.



# Comment ID 0216.001.002

Author Name: Mundt L. Organization: Issue Category: 15 We are managing our property with best management practices to protect our watershed, streams, and lakes. This is a constant process and are utilizing expertise from the management agency's appropriate to the practice b oth for forestry and agriculture, public and private. We also are doing stream bank stabilization projects with our cost share partners in the watershed. We believe the current re gulations are entirely sufficient to satisfy the need to protect our water re sources.

Response Please refer to Response 12 and Response 13. Refer also to Response 15.



# Comment ID 0220

- A1.001.005

Author Name: Lange Walter Organization: Lange Tree Farm Issue Category: 15 As a forest owner, I already use Best Management Practices (BMPs) to protect water quality. In fact, I am certified to the Am erican Tree Farm System® standards, a third

- party audited forest certification system, verifying that my BMPs are working on the gr ound to protect
clean water.

On my Tree Farm, I have installed grassed waterways and stream side buffers to prevent soil entering the drainage ditches.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 140 Response Please refer to Response 12 and Response 15.



# Comment ID 0224

- A1.001.003

Author Name: Karels James Organization: Southern Group of State Foresters (SGSF) Issue Category: 15 We firmly believe that the current state BMP programs is the correct approach to controlling runoff from forest roads, as wel l as all other forestry

- related nonpoint source pollution. The programs are based on continual improvement and have achieved unequaled success in managing nonpoint source pollution resulting from forestlands

Response Please refer to Response 12. Refer also to Respon se 13.



# Comment ID 0230

- A1.001.003

Author Name: Godbout Kevin Organization: Weyerhaeuser Company Issue Category: 15 Additionally, an NPDES permit program is unnecessary as forest road systems are well managed through successful state forestr y Best Management Programs (BMPs). For over 30 years, state BMPs have been effective at protecting water quality and, quite frankly , there is no need for a new federal regulatory role with respect to forest roads.

Response Please refer to Response 1, Response 12 and Response 13.



# Comment ID 0232

- A1.001.005

Author Name: Wright Vance Organization: Wright Forestry LLC Issue Category: 15 As a forest owner, I already use Best Management Practices (BMPs) to protect water quality. In fact, I am certified to the A merican Tree Farm System® standards, a third

- party audited forest certification system, verifying that my BMPs are working on the ground to protect clean water.

On my Tree Farm, I leave buffers of trees along stream banks to prevent erosion. I limit stream crossings to as little as po ssible, but when necessary, I plan ahead and use BMP's to minimize the effect s to the stream. I have 2300 acres under a conservation easementChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 141 with the Va. Dept. of Forestry. Being the sixth generation landowner and a BS in Forestry from Va Tech, I understand the imp ortance of managing water quality. My goals are to actively manage my land for generations to come to have this land in better condition than through no management because regulations make it to expensive.

Response Please refer to Response 12 and Response 13. Refer also to Response 15.



# Comment ID 0234

- A1.001.005

Author Name: Martin Tom Organization: American Forest Foundation (AFF) Issue Category: 15 AFF works nationwide and in partnership with local, state, and national groups to provide hands

‐ on, onthe

‐ ground support for America's over 10 million family forest owners, owners, giving them the tools they need to manage healthy and sustainable woodlands and protect water quality along with various other forest resources. Our largest program for family fore sts, the American Tree Farm System® (ATFS) and our on

‐ the

‐ ground conservation pilots, provide AFF with over 70 years of experience working with family forest owners using voluntary, incentive

‐ based approaches and know these approaches work when it comes to protecting important resources like water quality.

Voluntary, Incentive

‐ based Approaches Work for Clean Water

Through our programs, including ATFS, AFF works on the ground with family forest owners to help them protect their water qual ity.
We do this through our voluntary certification program, where Tree Farmers agree to implement water quality best management practices in their forests and we then verify it by inspections and third

‐ party auditing.

Take Janet and Steve Funk, the proud owners of a 360 acre Tree Farm in Coeur d'Alene, Idaho. Steve and Janet began with a dream to live near the woods and streams of the West, where they might find opportunity to camp occasionally. In the early 1970's, the opportunity to live their dream fell into their la p, when job opportunities near Coeur d'Alene allowed for the purchase of a derelict farm in a small mountain valley.

The Funk's new farm was all but perfectas the farm was

- truly neglected and in need of a good deal of work. For one, the Wolf Lodge
Creek , a class 1 stream that runs through the Funks property for a half mile, showed a history of frequent channelization as the c obble
bed

‐ load shifted. While the stream was beautiful, clear water with an abundance of cutthroat trout, the stream banks had no v egetation and were eroded. Severe flooding in 1974 eroded what little riparian areas existed, and an oil pipeline rupture contaminated Wolf Lodge
Creek in 1983.

The Funks took action, leading a community watershed effort to restore the creek as well as protect it from periodic floods. They provided landowner education and guidance, working together with government agencies to clean up the stream.

On their own land, the Funks re

‐ engineered the waterway to prevent further erosion, restore riparian buffer zones, and increase stream health. Faced with steep gradients, the Funks were able to use alternatives to traditional dams to better restore the stream environment toChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 142 its natural function and flow. The Funks also took great care with the roads and hillsides on their land, maintaining culvert s and ditches
to divert runoff.

The Funks exemplify the commitment that family forest owners across the country certified to the American Tree Farm System have made to keep our water clean. The Funks' story - like the stories of the more than 89,000 ATFS

- certified family forest owners - demonstrate that best management practices ARE effective in ensuring the protection of clean water and we should continue to ensure that family forest owners have the tools, resources, and technical assistance they need to implement these BMPs.

Response Please refer to Response 1, Response 12 and Response 15.



# Comment ID 0235

- A2.001.003

Author Name: Krancer Michael Organization: Pennsylvania Department of Environmental Protection (PA DEP) Issue Category: 15 Pennsylvania has well established, codified erosion and sediment control requirements in 25 Pa. Code, Chapter 102 regulations , whi ch are applicable to earth disturbance activities related to timber harvest operations including the construction of logging roa ds. A state established permit process, not under the requirements of the federal NPDES permit, has been in place for 40 years. This permit requires a person who is undertaking a timber harvest activity to obtain a state Erosion and Sediment (E&S) Permit if the total of all earth disturbance activities associated with the timber harvest, including logging roads, log landing areas, and skid trails exceeds 25 acres. Timber harvest activities that do not exceed the 25 acre earth disturbance threshold for permit requirements must still imple ment best management practices (BMPs) and if conducting earth disturbance of 5,000 square feet or greater must develop a written E&S plan. Under these Pennsylvania regulations, BMPs, as that term is defined, must be utilized for any earth disturbance activity asso ciated with timber harvesting. Utilization of BMPs required by the 25 Pa. Code, Chapter 1 02 regulations ensures compliance with Pennsylvania water quality standards.

The proof of Pennsylvania's success with this approach is demonstrated in our streams showing minimal impact from timber harv esting activities, including logging roads. Of the approximately 86,000 miles of waterways in Pennsylvania, the draft 2012 Pennsylv ania Integrated Water Quality Monitoring and Assessment Report, identifies that only nineteen miles of streams and rivers are impa ired by silvacultural activity (0.022%) and only two miles of streams and rivers impaired by logging roads (0.002%).

Pennsyl vania also supports the Stewardship Forestry Initiative (SFI) Program which began in 1995 and is an industry driven effort developed to ensure sustainability of forest and timber resources, The SFI program forms local partnerships between the fores t produc ts industry, forest landowners and general public to manage forest land to meet the needs of the present without compromising fu ture forest benefits, and ensuring that timber harvest activities are conducted in an environmentally sound manner. The SFI Prog ram is a voluntary program that promotes outreach and training, through the SFI Program landowners can receive assistance in the development of timber harvest plan and support to enhance their ability to make good forest management decisions. Loggers can learn safer job related skills and how to conduct timber harvest operations in a more environmentally sound manner by implementing sound and practical water quality protection BMPs.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 143 Response Please refer to Response 12 , Response 13 and Response 15.



# Comment ID 0235

- A2.001.005

Author Name: Krancer Michael Organization: Pennsylvania Department of Environmental Protection (PA DEP) Issue Category: 15 In conclusion, Pennsylvania believes that not to require permits is a sensible approach and in accordance with the Commonwealth's approach to erosion control and stormwater management as applied to logging roads and timber harvest activities. This approac h has been successful, and has proven that NPDES permits are not necessary to protect the water resources that the state is already effectively protecting. The demonstrated success of Pennsylvania's state program would serve as a good template for consideration by EPA in this proposed rulemaking.

Response Please refer to Response 1, Response 12, and Response 13.



# Comment ID 0236

- A1.001.003

Author Name: Haller Greg Organization: Pacific Rivers Council (PRC) Issue Category: 15 I. Key Findings PRC Has Shared with Federal and State Agencies

• Sediment from roads is the leading cause of water quality impairment on forestlands in the United States. • Many people rely on water supplies originating on or downstream from forestlands. Regulating stormwater discharges from log ging
roads is a small price to protect and restore the natural storage and filtration capacity of healthy forest watersheds. • Forestlands provide important spawning habitat for a wide range of aquatic species, including salmon, steelhead, bull trout , and numerous amphibians. Sediment from forest roads suffocate fish, smother eggs and fry, and fill pools, making them shallower, more easily warmed, and less livable for fish that need cool water to survive. • Regulating logging road stormwater discharges means healthier fisherie s, benefiting anglers and wildlife viewers. • Regulating logging road stormwater discharges also incentivizes road owners to properly maintain their roads to minimize su ch discharges, which means safer and more reliable access to all the recreational oppo rtunities provided by forestlands.

EPA claims that its proposal to continue avoiding regulation of logging road stormwater discharges will have "no economic, pu blic health, or environmental impacts" because the proposed action merely "clarifies existing regulations." <FN5> While EPA might b e proposing to maintain the "status quo" with regards to its regulatory failures, it is important that EPA be forthright with t he public about the economic, public health, and environmental impacts associated with logging road stormwater discharges, includ ing diminished fisheries for commercial, recreational and cultural purposes, increased municipal water treatment costs, and delayed recovery for species listed under the Endangered Species Act, including Coho and Chinook salmon, steelhead, and bull trout. EPA's notice in the FederalChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 144 Register fails to mention this critical information, downplaying the importance of solving the longstanding problem of loggin g road stormwater discharges through a readily available, effective regulatory mechanism like the NPDES permit program.

II. Logging Roads and Stream Health.

As the EPA is aware, logging roads have multiple adverse impacts on watershed functions, and their aquatic and terrestrial ha bitats and biota. <FN6> Roads are the leading cause of water quality im pairment on forestlands nationwide, and present one of the major sources of increased sediment delivery. <FN7> Roads directly affect natural sediment and hydrologic regimes by altering streamflow, sedi ment loading, sediment transport and deposition, channel morphology, channel stability, substrate composition, stream temperatures, water quality, and riparian conditions within a watershed. <FN8> Roads damage watershed integrity by intercepting rainfall, concent rating flow, and diverting water from natural fl owpaths. <FN9> Runoff converted to surface flows in roadside ditches warms water rapidly prior to entering streams. <FN10> Elevated summer stream temperatures negatively affect salmonids and amphibians. <FN11>

Surface erosion, road

- related landslides, and stream channel diversion over roadways can deliver large amounts of sediment into
streams. <FN12> Roads

- produced fine sediments reduce pool volumes, increase channel widths, and exacerbate seasonal temperature extremes. <FN13> Pools provide multiple ha bitat functions and are an essential habitat for native salmonids at a variety of lifestages; loss of pool volume and quality thus negatively affects native salmonids. <FN14> Especially following storms, sediment delive ry from roads can be catastrophic and reduce survival rates of eggs and juvenile fish, reduce food availability for aquatic species, and reduce aquatic habitat generally. <FN15>

As EPA moves forward with its proposal, PRC asks EPA to review and respond to the scientific literature cited to fully explain its choice to either regulate channeled logging road discharges through the NPDES permit program or further delay proactive regulation o f this point source pollution.

<FN1> 33 U.S.C. § 1362(14). <FN2> Id. § 1362(6). <FN3> 77 Fed. Reg. 5 3834 (Sept. 4, 2012). <FN4> 33 U.S.C. § 1251(a). <FN5> 77 Fed. Reg. 53834, 53837 (Sept. 4, 2012). <FN6> Trombulak and Frissell, Review of ecological effects of roads on terrestrial and aquatic communities, Cons. Bio. 14: 13

- 30 (2000); Czech at al., Economic associations among causes of species endangerment in the United States, BioScience, 50: 593

- 601 (2000) (finding that roads have highest proportional association with species endangerment compared with other casues, and es timating
that roads in the U.S . contribute to the endangerment of 94 aquatic species). <FN7> Furniss et al., Road construction and maintenance, pp. 297

- 323 in W.R. Meehan, ed., Influences offorest and rangeland management on salmonid fishes and their habitat, Am. Fish. Soc'y Sp. Publ. 19, Bethesda, MD (1991). <FN8> Lee et al., Broadscale assessment of aquatic species and habitats, pp. 1057

- 1496 in Quigley et aL, eds., An assessment of ecosystem components in the interior Columbia Basin and portions of the Klamath and Great Basins, USD A Forest Service, Pacific Northwest Research Station, PNW

- GTR

- 328, Portland, OR (1997). <FN9> Fumiss et al., Road construction and maintenance, pp. 297

- 323 in Meehan, W.R., ed. Influences afforest and rangeland management on salmonid fishes and their habi tat, Amer. Fish. Soc'y Sp. Publ. 19, Bethesda, MD (1991); USDA Forest Service, Roadless Area Conservation Final Environmental Impact Statement, p. 3

- 46 (2000). <FN10> Rhodes et al., A Coarse Screening Process for Potential Application in Endangered Specie s Act Consultations, CRITFC Tech. Rept. 94

- 4, Portland, OR (1994).Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 145 <FN11> Beschta et al., Stream temperatures and aquatic habitat: fisheries and forestry interactions, Streamside Management: F orestry and Fishery Interactions, pp. 191

- 231, Univ. of WA Inst . Of Forest Res. Contribution No. 57, Seattle, WA (1987); Meehan, W.R., ed., Influences of Forest and Rangeland Management on Salmonid Fishes and Their Habitats, Amer. Fish. Soc. Special Publ. 19 (1991) ; McCullough, D.A., A review and synthesis of effects of alterations to the water temperature regime on freshwater life stages of salmonids, with special reference to Chinook salmon, USEPA Tech. Rept. EPA 910 -R- 99

- 010, USEPA, Seattle, WA (1999); Jackson et al., Timber harvest impacts on small headwater stream channels in the coast ranges of Washington, J. Am. Water Res. Ass'n, 37:
1533

- 49 (2001); Dunham et al., Influences of temperature and environmental variables on the distribution of bull trout within stre ams at the southern margins of its range, N. Am. J. Fish. Mgrnt., 23: 894

- 904 (2003). <FN12> Furniss et al., Road construction and maintenance, pp. 297

- 323 in Meehan, W.R., ed. Influences afforest and rangeland management on salmon id fishes and their habitat, Amer. Fish. Soc'y Sp. Publ. 19, Bethesda, MD (1991); Henjum et al., pp. 129

- 168 in Karr and Chu, eds., Interim protection for late

- successional forests, fisheries, and watersheds, National Forests East of the Cascade Crest, Oregon and Washington, Eastside Forests Scientific Soc'y Panel, The Wildlife Soc'y, Bethesda, MD (1994); MacDonald et al, Monitoring guielines to evaluate effects of forestry activities on streams in the Pacific Northwest and Alaska, EPA/9 10/9

- 91

- 001, USEPA and Univ. of WA, Seattle, WA (1991); Rhodes et al., A Coarse Screening Proc ess for Potential Application in Endangered Species Act Consultations, CRITFC Tech. Rept. 94

- 4, Portland, OR (1994). <FN13> Rhodes et al., A Coarse Screening Process for Potential Application in Endangered Species Act Consultations, CRITFC Te ch. Rept. 94

- 4, Portland, OR (1994). <FN14> McIntosh et al., Historical changes in pool habitats in the Columbia River Basin, Ecological Applications, 10:1478

- 96 (2000); Meehan, W.R., ed., Influences of Forest and Rangeland Management on Salmonid Fishes and Their Habi tats, Amer. Fish. Soc. Special Publ. 19 (1991); Rhodes et al., A Coarse Screening Process for Potential Application in Endangered Species Act Consultations, CRITFC Tech. Rept. 94

- 4, Portland, OR (1994). <FN15> Bjorrin and Reiser, Habitat requirements of s almonids in streams, in Meehan, W.R., ed., Influences of Forest and Rangeland Management on Salmonid Fishes and Their Habitats, Amer. Fish. Soc. Special Publ. 19 (1991); Chapman, D.W., Critical review of
variables used to define effects offines in redds of large salmonids, Trans. Am. Fish. Soc'y, 117(1): 1

- 21 (1988); Everest et al., Fine sediment and salmonid production: a paradox, pp. 98

- 142 in Colt and White, eds., Streamside management: forestry and fishery interactions, Contribution No. 57, WA Inst. of Forest Research, Univ. of WA, Seattle, WA (1987).

Response Please refer to Response 12 and Response 13. Refer also to Response 10.



# Comment ID 0238

- A1.001.003

Author Name: Portman Carl Organization: Resource Development Council for Alaska (RDC) Issue Category: 15 The State of Alaska promulgated statutes and implemented regulations to protect water quality from stormwater

- related discharges from forest and logging roads. The State manages runoff from these roads through regulations developed unde r the direction of the Alaska Forest Resources and Practices Act for water quality management and pollution control. Best Management Practices (BMP) are in place to control erosion and sedimentation during road construction and to address ongoing drainage. Ongoing monitoring demonstrates the effectiveness of this approach. Similarly, the U.S. Forest Service has also developed BMPs that are consistent with those of the Alaska Forest Resources and Practices Regulations.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 146 The State of Alaska is highly success ful at protecting water quality through its current approach. RDC supports the continued use of the
State's BMP

- based programs, in lieu of requiring permitting under Section 402 of the Clean Water Act.

Response Please refer to Response 12 and Response 15.



# Comment ID 0239

- A2.001.003

Author Name: Douglas Denico Heather Parent Organization: Maine Department of Environmental Protection and Maine Forest Service (ME DEP and MFS) Issue Category: 15 The Maine Forest Service (MFS) and Department of Environmental Protection (DEP) are mandated by the state legislature to work with Maine's forestry community to develop forestry Best Management Practices (BMPs) to protect water quality and report on BMP us age and effectiveness.

It is no coincidence that the USDA Forest Service's Forest Water People Report ranked Maine Number 1 in the Northeast in the land's ability to produce clean drinking water. This ranking was largely due to Maine's extensive forests, the same forests that sustain Maine's forest products industry and are currently managed using voluntary BMPs without NPDES permitting. (http://vvww.na.fs.fed.us/pubs/detail.cfm?id=5257). Further, Maine practices continuous improvement in BMP's; our curre nt BMP manual has served as a model for many states and agencies across the nation.

Response Please refer to Response 12 and Response 15.



# Comment ID 0240

- A1.001.005

Author Name: Baumhoff Oscar Organization: Baumhoff & Company, LLC Issue Category: 15 As a forest owner, I already use Best Management Practices (BMPs) to protect water quality. In fact, I am certified to the A merican Tree Farm System® standards, a third

- party audited forest certification system, verifying that my BMPs are working on the ground to protect clean water.

On my Tree Farm, we are currently (past 5 years) working with Trout Unlimited on stream restoration, including the planting o f shrubs and trees for shade along more than 12 miles of class one streams. This project includes bank stabilization, placement of boulders and Tree Root wads for stream flow control and improved fish habitat.

ResponseChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 147 Please refer to Response 12 and Response 15.



# Comment ID 0245

- A1.001.005

Author Name: Smalley Bryan Organization: Southeastern Lumber Manufacturers Assocation (SLMA) Issue Category: 15 It continues to be our position that water quality impacts from forestry operations, including forest roads, are best address ed through best management practices (BMPs) . SLMA believes EPA's silvicultural exemption should be upheld by the Supreme Court.

Response Please refer to Response 12, Response 13, and the preamble to today's rule.



# Comment ID 0246

- A1.001.004

Author Name: Gustafson Earl Organization: Wiscon sin Paper Council (WPC) Issue Category: 15 The NOI solicits comments on examples of (among others) successful BMP

- based state programs and voluntary certification programs for managing stormwater discharges from forest roads.

Paper Council members depend on sustainable, productive forests for their raw material whether as virgin wood fiber or recove red waste paper. These firms may own forest resources; they routinely interact with a range of entities focused on forest managemen t and environmental protection including: (a) county, state, federal and tribal agencies, (b) private forest landowners (through th e WPC members' own forestry programs and/or the national and state Tree Farm System), and (c) timber producers (loggers) and transporters of harvested forest products.

Paper Council members employ professional foresters. They are knowledgeable about the various types, locations and purposes o f forest roads described in the NOl and they utilize Best Management Practices (BMP) f or water quality and third party certification programs to
address stormwater runoff.

Wisconsin is a nationally recognized leader in BMP implementation rates and participation in forest certification programs.

In Wisconsin, the BMP program is administe red by the state's Department of Natural Resources (WDNR). A significant segment of the Field Manual for Loggers, Landowners and Land Managers addresses Forest Roads, with other chapters addressing related topics such as Planning (forestry activities), Str eam Crossings, Riparian Management Zones, and Wetlands. It is our understanding that the WDNR intends to submit information on the practice and achievements of BMP applications in this state. It is the Paper Council's p erspective
that Wisconsin's BMPs are effectively applied in state and county forests and on private industrial and non

- industrial parcels enrolled in the Wisconsin Managed Forest Law (MFL) program and on other properties not participating in the MFL. Regular field monitoring , led by the WDNR, is verifying the efficacy of BMPs in addressing stormwater runoff from forest roads.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 148 Paper Council members which directly utilize pulpwood also are active participants in third party certification programs such as the Sustainable Forestry Initiative (SF r), the American Tree Farm Program (administered here by the Wisconsin Tree Farm Committee), and the Forest Stewardship Council (FSC). Indeed, it is common for individual companies to be certified in more than one program. Regardless of their single or mul tiple certifications, they are regularly subject to rigorous audits to assure they are compliant.

The Paper Council is most familiar with the SFI and is aware that the national SFI program intends to respond with more detai led information regarding its t hird party, independent certification practices and achievements.

We would like to note that the SFI's Implementation Committee in Wisconsin operates an inconsistent practices program. The pr ogram allows the Implementation Committee to: (a) gather sponta neous inquiries from any individuals (who are provided confidentiality) concerned about forest operations; (b) facilitate an investigation if SFI participants are involved; (c) provide updates and responses to the inquirer; and (d) apply educational and/or corrective actions responsive to any activity or condition determined to be inconsistent with the SFI Standard. Participants must be compliant with the SFI Standard in order to maintain their certification.

Additionally, wood

- using participants in the S FI program in Wisconsin have invested $1,533,775 since 2006 to help fund education and training programs for loggers and other forest professionals, plus outreach to private, non

- industrial forest owners and environmental education institutions. More than $1 million of the total was directed to logger/forest professionals' education and training (guided by the annually updated Wisconsin Training Standard) with the majority of those efforts focused on BMPs for water quality.

Response Please refer to Resp onse 12 and Response 15. Refer also to Response 13.



# Comment ID 0250

- A1.001.004

Author Name: Daugherty Peter Organization: Oregon Department of Forestry (OR DF) Issue Category: 15
We also understand that EPA continues to review available information on the waterquality impacts of stormwater discharges from forest roads, as well as existing practices to control those discharges. We understand that the EPA is considering a range of options to address such discharges, which could include designating a s ubset of stormwater discharges from forest roads for regulation under the Agency's section 402(p) rulemaking authority.

Response Please refer to Response 12 and Response 13.



# Comment ID 0250

- A1.001.006

Author Name: Daugherty Peter Organization: Oregon Department of Forestry (OR DF) Issue Category: 15 We welcome this review, and expect that if the EPA takes an outcome

- based approach, it will conclude that Oregon's current approach ofChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 149 best management practices is an efficient and effective way to achieve the stormwater discharge goals of the Clean Water Act for forest roads, and can serve to inform the EPA's approach.

Response Please refer to Response 12 and Response 13.



# Comment ID 0252

- A1.001.002

Author Name: Brandt Wayne Organization: Minnesota Forest Industries (MFI) Issue Category: 15 It is MFIs position impacts to water qualtity from forestry operations, including forest roads, are best addressed through be st management practices (BMPs). BMPs and many other forest management guidelines afford adequate protections for water quality during road construction and maintenance. MFI believes EPA's long standing silvicultural exemption is valid and should be uph eld by the Supreme Court.

Response Please refer to Response 12 and Re sponse 13.



# Comment ID 0255

- A1.001.005

Author Name: Moon C. Organization: Issue Category: 15 When assisting them with their timberland, I already use Best Management Practices (BMPs) to protect water quality. I designa te streamside management zone s to prevent soil erosion into waterways, plan timber harvests in a way that minimizes the possibility of water quality issues, and ensure that forest roads are maintained properly, among other things.

Response Please refer to Response 12 and Response 13

.



# Comment ID 0256

- A1.001.005

Author Name: Bain J.P. Organization: Issue Category: 15 As a forest owner, I already use Best Management Practices (BMPs) to protect water quality.

On my Tree Farm, I have installed warm season grass buffers around field edges, seeded logging roads and decks, installed waterChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 150 diversion bars and provided grass water ways for crop land drainage. Voluntary programs through the NRCS and FSA used to accomplish these practices have far better results than mandated standards such as the ones I feel would be contained in the NPDES permit.

Response Please refer to Response 12. Refer also to Response 13 and Response 15.



# Comment ID 0257

- A1.001.005

Author Name: Saloom Salem Organization: Saloom Properties, LLC Issue Category: 15 As a forest owner, I already use Best Management Practices (BMPs) to protect water quality. In fact, I am certified to the Am erican Tree Farm System® standards, a thirdparty audited forest certification system, verifyin g that my BMPs are working on the ground to protect
clean water.

As an active tree farmer who does 98% of the work on our farm we are cognizant of the BMP standards and we adhere to these st andards for clean water quality. All of our roads and fire lanes , totaling some 15

- 18 miles on Saloom Properties, LLC Tree Farm are properly crowned, water barred with turnouts to prevent unnecessary erosion and regularly maintained. Each logging operation, of which we are in the process at this writing, adheres to Bes t Management Practices. We request inspection by the Alabama Forestry Commission post operations to justify and document our Best Management ! Practices. One of those inspections has occurred in the past month. As you are aware, the Alabama Forestry Commission through their BMP coordinator has just made a presentation to the Society of American Foresters held in Spokane, Washington. This presentation is titled "Partnership and Education Lead to BMP Success in Alabama. " With
Alabama's 22.8 million forested a cres, we lead the nation in Best Management Practices, and we are a testament to those valuable practices for the entire nation. Other practices that we adhere to for clean water quality are drive

- through

- fords with minimal stream impact, adequate bridges to span larger streams with water diverted off roads away from these streams and creeks. Our riparian zones and buffers are adequately stocked and protected.

Response Please refer to Response 12. Refer also to Response 13 and Response 15.



# Comment ID 0259

- A1.001.003

Author Name: Crapser Bill Organization: Council of Western State Foresters (CWSF) Issue Category: 15 As stated in previous comments (available at http://wflccenter.org/infomaterials/letters_of_comment.php) submitted to the EPA in

res ponse to the May 23, 2012 Notice of Intent, the CWSF continues to believe that the long

- standing and proven best management practices (BMPs) administered by the states as the most effective way to address stormwater runoff associated with silvicultu ral

act ivities.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 151 Response Please refer to Response 12, Response 13, and the preamble to the final rule.



# Comment ID 0259

- A1.001.006

Author Name: Crapser Bill Organization: Council of Western State Foresters (CWSF) Issue Category: 15
The CWSF continues to support the proven BMP programs administered by the states as the most effective way to address stormwater
runoff associated with silvicultural activities.

Response Please refer to Response 12, Response 13, and the preamble to the final rule.



# C omment ID 0261

- A1.001.002

Author Name: Imbergamo Bill Organization: Federal Forest Resource Coalition (FFRC) Issue Category: 15 It continues to be our position that water quality impacts from forestry operations, including forest roads, are best addressed through best management practices (BMPs), as well as the myriad protections for water quality and standards for road construction and main tenance followed by the Forest Service and BLM. FFRC believes EPA's silvicultural exemption, which has been in effect throughout a period of significant improvement in operational controls of nonpoint pollution from forest roads, is valid and should be upheld by the Supreme
Court.

Response Please refer to Response 1, Response 12 and Response 13. Refer also to Response 4 and Response 6.



# Comment ID 0263

- A1.001.005

Author Name: Schmidt David Organization: Schmidt Family Forest LLC Issue Category: 15 As a forest owner, I already use Best Management Practices (BMPs) to protect water quality and am subject to Oregon's superb Forest Practices Act administered by the Oregon Department of Forestry. I am certified to the American Tree Farm System standards (third

- party audited) and continue to review water quality and fish habitat improvement demonstrations and research to apply to our own lands. We continually maintain our water drainage structures (a bridge and many culverts) to prevent any "blow

- outs" or excessive erosion and work to be "fish friendly" where applicable. We have an active quality road rocking program with over 62% of our roadChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 152 system surfaced to provide all

- weather access and reduce erosion.

Response Please refer to Response 12 and R esponse 13. Refer also to Response 15.



# Comment ID 0264

- A1.001.005

Author Name: Magruder John Organization: Magruder Family Tree Farm Issue Category: 15 As a forest owner, I already use Best Management Practices (BMPs) to protect water quality. In fact, I am certified to the Am erican Tree Farm System® standards, a third

- party audited forest certification system, verifying that my BMPs are working on the gr ound to protect
clean water.

On my Tree Farm, totaling 351 acres, I cross streams when only absolutely necessary. The crossings that I use follow all Best Management Practices for Water Quality as outline by the Virginia Department of Forestry. These guidelines minimize the erosion and sedimentation into streams without burdensome regulation. Maintaining water quality and protecting the Chesapeake Bay are one of my management objectives for the property!

Response Please refer to Response 12 and Re sponse 13. Refer also to Response 15.



# Comment ID 0265

- A1.001.005

Author Name: Pierce Josiah Organization: The Pierce Place Issue Category: 15 As required by Maine law, I already use Best Management Practices (BMPs) to protect water quality. We do not need a redundan t layer of rules added on to our burdens, especially in a poor economy. Landowners are the environmental heroes who are conserving America's woodlands. More rules and expense will only help drive us to find ways to earn money that do not help preserve water quality. As a member of the American Tree Farm System my land is already certified to the highest standards for the preservation of all environmental
values.

On my Tree Farm we take water quality seriously. We maintain waterbars on our roads and replace culverts that are failing. We have spent a great deal of time chasing ATVs off our land because they were running through streams and vernal pools. We have repaired most of the ATV damage to our streams and roads at this point. It is because of the damage that can be caused by ATVs and tru cks that I do not maintain a complete road system on my land. I need to build temporary roads when I harvest trees precisely because I am protecting water quality. If we do not have roads in an area the vehicles do not get in there and have their fun making mud. Regulating my ability to build new temporary roads would punish me for caring about wat er quality.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 153 Response Please refer to Response 12 and Response 13. Refer also to Response 15.



# Comment ID 0266

- A1.001.005

Author Name: Goergen Jr. Michael Organization: Society of American Foresters (SAF) Issue Category: 15 5. As a nonpoint source, foresters, landowners, and loggers have had unequaled success in implementing state

- based programs of Best Management Practices (BMPs). Every state with significant commercial forestry has a BMP program tailored to the unique condi tions found in that state. BMPs are widely applied

--- even where voluntary

--- with the national average at 90% and continuously improving.
<FN1> States have fine

- tuned their BMP programs over time, and regular monitoring informs training workshops held i n states across the country. Research has found forestry BMPs to be highly effective at controlling impacts. <FN2> And more recently, forest certification programs such as the Sustainable Forestry Initiative (SFI), Forest Stewardship Council (FSC), and the American Tree Farm System have fostered even greater implementation of BMPs. Quite simply, forestry BMP programs have a demonstrated track recor d of success that would be put at significant risk if this is taken out of the hands of the states.

<FN1> Ic e, G.G., E. Schilling, and J. Vowell. 2010. Trends in forestry best management practices implementation. J. For. 108(6):267

- 273. <FN2> Brief for Society of American Foresters et al. as Amici Curiae Supporting Petitioners, Decker v. Northwest Environmenta l Defense Center, No. 11

- 338, and Georgia

- Pacific West, Inc. v. Northwest Environmental Defense Center, No. 11

- 347 (S.Ct. Sept. 4, 2012).

Response Please refer to Response 7 and Response 12. Refer also to Response 13 and Response 15.



# Comment ID 026 6

- A1.001.008

Author Name: Goergen Jr. Michael Organization: Society of American Foresters (SAF) Issue Category: 15 We encourage the agency to continue to recognize the efficacy of state BMP programs in control of runoff from forest roads an d specify that stormwater discharges from forest roads are "not associated with industrial activities," which will offer the EPA some f lexibility in determining how runoff from forestry activities will be monitored in the future. Water quality from managed or unmana ged forests routinely continues to be the best in the nation.

Response Please refer to Response 12 and Response 13. Refer also to Response 8 and to the preamble to the final rule.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 154 

# Comment ID 0266

- A1.001.010

Author Name: Goergen Jr. Michael Orga nization: Society of American Foresters (SAF) Issue Category: 15 The existing infrastructure of BMP programs continues to garner high BMP compliance levels and should be supported and mainta ined.

Response Please refer to Response 12, Response 13, and Response 15.



# Comment ID 0267

- A2.001.003

Author Name: Chris Winter Paul A. Kampmeier Organization: Washington Forest Law Center and Crag Law Center (obo Northwest Environmental Defense Center et al.)
Issu e Category: 15 2. EPA should clarify the objectives, methods and timelines for further study relating to the impacts of stormwater discharge s from forest roads, available management practices, and the effectiveness of existing Federal, State, Tribal, loca l and private programs in managing these discharges.

EPA states in the Federal Register notice that it intends to conduct further study into specific issues related to forest roa d discharges, which include: 1) the impacts of stormwater discharges from for est roads; 2) available management practices and approaches; and 3) the effectiveness of existing Federal, State, Tribal, local and private programs in managing these discharges. We request that EP A provide more specific information on the need for, design of and execution of the program of study identified in the Federal Register notice.

A. EPA should provide explicit analysis and discussion of existing gaps in available scientific and policy information that a re relevant to the agency's consideration of how to address stormwater discharges from forest roads.

Since at least 2004, and the Ninth Circuit's decision in Envt'l Defense Ctr., 344 F.3d at 832, EPA has been charged with dete rmining whether and how to regulate discharges from forest roads pursuant to the Clean Water Act. In that decision, the Ninth Circuit remanded the Phase II rule for the agency to "consider in an appropriate proceeding Petitioners' contention that §402(p)(6) require EP A to regulate forest roads." Id. at 863. EPA has not, subsequ ent to the remand, issued a determination relating to Petitioners' contention that forest roads should be subject to regulation, nor has EPA, prior to the most recent Federal Register notice, requested information f rom the public on this topic or released any further information on the impacts of discharges from forest roads on water quality.

With the most recent Federal Register notice, however, EPA concludes that further study is required prior to determining whet her and how to regulate discharges from forest roads. Given the eight year delay in providing a response to Petitioners in Envt'l Defense Ctr., we request that the agency identify with particularity existing data gaps the agency intends to address through further study.

An articulation of the e xisting data gaps is critical to ensuring that the agency moves forward with future study in a transparent, systematic and expeditious manner. As will be discussed below, the ways in which forest roads impact water quality, the degre e of impact, the means of addressing discharges, and the various types of programs used by States, Tribes, and other entities have alreadyChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 155 been studied, documented and analyzed by the scientific community, agencies and stakeholders in great detail. Before making a rational
decis ion to delay regulatory action in favor of further study, EPA must provide to the public an explanation for why the existing information is inadequate to support agency decision

- making at this point in time, eight years after the remand in Envt'l Defense C tr. We therefore request an explanation from EPA as to why the existing data and information is inadequate to make a decision at thi s time as to how discharges from industrial logging roads and forest roads should be regulated pursuant to the Clean Water A ct.

Moreover, EPA previously commissioned a report, published in 2008, that addressed specifically the impacts to water quality f rom forest roads and available BMP programs and the questions that EPA now states that it intends to address through further s tudy. <FN6> The Endicott report "concisely answers" many pertinent questions based on "literature searches and evaluation of available da ta." Those questions include: 1) "What is the nature and extent of water quality impairments due to forest roads across the country?" 2) "What are state programs that address forest roads?" 3) "Are voluntary regulatory BMP programs effective?" 4) "What are the circumstanc es producing effective BMP implementation?" and 5) "How can failing BMPs be improved?" Given that EPA has already commissioned and received a report that addresses the specific question posed by the agency in the Federal Register notice, we request fur ther clarification from the agency as to why the existing information is inadequate and what additional inf ormation EPA intends to develop through a program of further study. We also note that EPA, in its Federal Register notice, neglected to identify this study a s pertinent and relevant to the subject matter and did not alert the public and stakeholders to the existence of this information.

B. EPA already has more than enough data documenting that industrial logging roads and forest roads cause significant impairm ent of water quality and harm beneficial uses.

Nearly forty years after the Clean Water Act's enactment, sediment discharged from culverts, ditches, and channels along forest roads still fouls rivers and streams across the United States. EPA's own reports (referenced below) show that forest roads have maj or impacts on water quality. State efforts to c ontrol these impacts have often failed, as evidenced by the extensive miles of streams listed by the EPA and states as water quality

- limited, as well as by the many listings of imperiled aquatic species under the Endangered Species Act ("ESA"). It is there fore critical that the EPA begin to regulate these discharges under 402(p)(6) of the Clean Water Act.

According to an EPA

- commissioned report, "forestry

- related sediment is a leading source of water quality impairment to rivers and
streams nationwide." <F N7> Remarkably, EPA indicates that "up to 90% of the total sediment production from forestry operations" comes from logging roads and steam crossings. <FN8> A significant portion of this sediment is collected and discharged direct ly into
rivers and streams through ditches, channels, and culverts. <FN9> In some areas of the Pacific Northwest, up to 75% of forest road drainage systems may directly enter rivers and streams. <FN10> Sedimentation from forest roads is a serious problem that curr ent management and regulation has failed to control, and we encourage EPA to take this opportunity to address the legacy of forest roads and its effect on our nation's waterways.

The Federal Register notice itself provides extensive information documenting that discharges from industrial logging roads and forest roads cause impairment of water quality. As EPA states unequivocally in the Federal Register, "[s]tormwater discharges from l ogging roads, especially improperly constructed or maintained roads, may introduce signifi cant amounts of sediment and other pollutants into surface waters and, consequently, cause a variety of water quality impacts." 77 Fed Reg. at 30476. EPA acknowledges that poll ution from forestry and related activities is among the "top twelve probable sou rces of impairment for rivers, streams, and coastal shorelines." Id. Similarly, the Endicott study also concludes that the "physical impacts of forest roads on streams, rivers, downstream wa ter bodies and watershed integrity can be dramatic and have been w ell documented."

Nor can there be any question that stormwater pollution from industrial logging roads and forest roads is harming and has the potential toChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 156 harm beneficial uses, including spawning and rearing habitat for salmon and steelhead and drinking water supplies. Important ecological, economic, and social consequences stem from the sediment discharged from ditches, channels, and culverts along fo rest roads. Ecologically, fine and coarse

- grained sediment loading degrades water quality and detrimentally affects fish and other aquatic species' habitat. <FN11> Sedimentation affects streams by reducing pool depth, altering substrate composition, reducing inter stitial space, and causing braiding of channels, <FN12> which reduce carrying capacity. The effects of road construction and associated maintenance account for a majority of sediment loads to streams in forested areas; in addition, stream crossings also can imp ede fish passage. <FN13>

For instance, sediment loading creates problems in salmonid migrat ion, spawning, incubation, and juvenile rearing, reducing the success of the Pacific Northwest's and northern California's iconic native salmon (e.g., coho, chinook, chum) and steelhead runs and sometimes even leading to the complete loss of salmonid fishe ries. <FN14> In turn, diminished runs harm tribal and fishing communities who rely
on salmon harvest for their culture and livelihoods.

Bull trout are particularly sensitive to sediment and logging road pollution. Roads have the potential to adversely aff ect all of the habitat components necessary for the survival and recovery of bull trout: water temperature, substrate composition and stability, hab itat complexity and connectivity. After the bull trout was listed in 1998, the U.S. Fish and Wildlife Servic e found the Forest Service's Inland Native Fish Strategy (INFISH) to be inadequate. "The main issues with the adequacy of PACFISH and INFISH were adequacy of the refugia network, roadrelated impacts and the lack of implementation of road management S&Gs in tended to address these impacts, lack of restoration emphasis within the PACFISH and INFISH area, and adequacy of monitoring and watershed analysis efforts." (PACFISH/INFISH Biological Opinion at page 90). In 2008, the U.S. Fish and Wildlife Service reiterated, "Existing roads are considered a primary source of sediment

- related impacts to bull trout in developed watersheds (USDI 1998), contributing to the degraded baseline conditions and were part of the rationale for listing bull trout as threatened." <FN1 5>

Sedimentation negatively affects bull trout embryo survival and juvenile bull trout rearing densities. <FN16> An assessment o f the interior Columbia Basin ecosystem revealed that increasing road densities were associated with declines in four nonanadro mous salmonid species (bull trout, Yellowstone cutthroat trout (Oncorhyncus clarkii bouvieri), westslope cutthroat trout (O. c. le wisi), and redband trout (O. mykiss spp.)) within the Columbia River basin, likely through a variety of factors associated wit h roads. Bull trout were less likely to use highly roaded basins for spawning and rearing and, if present in such areas, were likely to be at low er population levels. <FN17> These activities can directly and immediately threaten the integrity of the essent ial physical or biological features necessary for bull trout survival.

Furthermore, sedimentation of rivers and streams can lead to degradation of what many Americans believe is the most important commodity produced by forestlands

- clean water. <FN18> Wate r quality degradation often results in more expensive treatment of municipal drinking water, a significant percentage of which comes from national forest lands and other forested lands. <FN19> For example, in Washington State 86 percent of the population i s served by a few very large public water systems, nearly all of which draw from national forest lands. Water from national forest lands supply about 80 p ercent of Oregon's population of 2.8 million people. <FN20> Sediment pollution also reduces storage re servoir capacity and damages irrigation pumps. <FN21> Thus, the consequences of water pollution from forest roads cannot be denied, nor can their cost to the public.

EPA explicitly recognizes that fine sediment from forest roads "can adversely affect the survival of dozens of sensitive aquatic biota (salmon, trout, other native fishes, amphibians, and macroinvertibrates) where these species are located." Id. EPA concluded in the Federal Register notice that these dynamics have already been "well documented ." Id. Similarly, Endicott concluded as follows:Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 157 The physical impacts of roads have detrimental effects on fish and fish habitat. Mechanisms through which roads exert these d eleterious 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, and migration barriers. The physical impacts of roads d iscussed above have widespread and profound effect on fish habitat and fish communities in populatio ns across a wide range of environments and conditions (Lee at al., 1997).

Endicott also notes that impacts from sedimentation can "often lead[] to complete loss of salmonid fisheries." Clearly, there can be no questions that stormwater from industrial log ging roads and forest roads are harming and will continue to harm beneficial uses without adequate regulation.

C. EPA already has extensive information on existing BMPs and the variety of State, Tribal and other types of programs used t o regulate
industri al logging roads and forest roads.

EPA also already has comprehensive information on the available state forest road BMP programs, and we therefore question why EPA needs to collect additional information prior to determining how to regulate industrial lo gging roads and forest roads pursuant to the Clean Water Act point source permitting program. In particular, Endicott provides a detailed state

- bystate description of BMP implementation data for eleven key states, including Oregon, Washington, California, Idaho, Colorado, Florida, Georgia, Maine, North Carolina, Minnesota and Virginia. Endicott also discusses whether voluntary or regulatory BMP programs are effective, and the report discusses how often states revise their BMPs and what processes are used to correct inadequate BMPs.

Given the existing information provided by the Endicott report, which was commissioned by EPA, we request that the agency pro vide further information on what gaps currently exist in the information regarding available BMP program s at the State, Tribal or other levels. To the extent that EPA determines that relevant gaps do exist, the agency should determine the method and timeline employed t o fill those identified gaps.

D. Widely available and discussed scientific information and data establishes that BMPs are not adequate to protect water quality and
beneficial uses.

In addition to information on the specifics of state

- based programs, EPA already has or can easily access a plethora of scientific studies
and information documenti ng that BMPs alone are not adequate and effective at protecting water quality and beneficial uses. The Endicott report summarizes much of the available scientific information, and our comments identify and discuss a selection of the other
relevant scientif ic works.

As discussed by Edicott, BMPs are "largely procedural, describing the steps to be taken in determining how a site will be man aged," but they lack "practical in

- stream criteria for regulation of sedimentation from forestry activities." <FN22> Th e selection and implementation of BMPs are often "defined as what is practicable in view of ‘technological, economic, and institutional consi deration.'" <FN23> The ultimate effectiveness of the BMPs are therefore impacted by the individual land manager's " value system" and the perceived benefit of protecting the resource values as opposed to the costs of operations.

Endicott notes that although BMPs may generally be able to mitigate pollution from forestry activities, the "exception to thi s generalization is unstable locations in key problem areas of the PNW (Idaho, northwest California, western Oregon and Washington, and southeast Alaska) where conventional BMPs for road construction may not be sufficient to prevent adverse effects on stream ch annel
and fi sh habitat (Binkley and MacDonald, 1994)." <FN24>Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 158 There is additional scientific work that documents that BMPs are ineffective at addressing impacts, and, in particular, cumul ative impacts from continued logging and road density. Espinosa et al. 1997 demo nstrated that aquatic habitats were severely damaged by roads and logging in several watersheds despite BMP application. <FN25> The authors further noted that the blind reliance on BMPs in lieu of limiting or avoiding activities that cause aquatic damages serves to increase aquatic damage. Even activities implemented with somewhat effective BMPs still often contribute negative cumulative effects (Ziemer et al 1991, <FN26> Rhodes et al. 1994, <FN 27> Espinosa et al 1997; Beschta et al. 2004 <FN28>). MacDonald and Rittland 1989 <FN29> concluded that roads typically double suspended sediment yield even with state of the art construction and erosion control and that suspended sediment contribution s from surface erosion, alone, from roads in the absence of mass failure, are typically in the range of 5 to 20 percent above background and remain at elevated levels for as long as roads are in use. Kattleman 1996 <FN30> concluded that BMPs could do little to reduc e sediment delivery from roads at stream crossings.

Give n the synthesis prepared for EPA by Endicott as well as body of scientific work that discusses the limitations of BMPs, parti cularly in the Pacific Northwest, we ask that EPA clarify why it needs further study on the impacts of discharges from industrial l ogging roads
and forest roads and the effectiveness of BMP

- based programs. We again ask that EPA articulate with specificity relevant gaps in existing scientific data and information and how the agency intends to address those gaps through further study. D oes EPA intend to collect additional data and, if so, how will those studies be designed and implemented and by whom according to what time fra me? Or, does EPA simply need to synthesize existing scientific information, which appears to have been done alrea dy by Endicott pursuant to
contract with EPA.

3. Oregon's Program for Regulating Industrial Logging Roads and Forest Roads is Clearly Inadequate to Protect Water Quality.

Because NEDC v. Brown originated in Oregon on state forestlands managed by the Oreg on Department of Forestry, and because EPA's Federal Register notice failed to discuss Oregon's program, we provide a discussion of Oregon's state

- based management program that relates to logging and forest roads. The 60

- day Notice Letter attached to the c omplaint in NEDC v. Brown, which EPA has in its files, clearly documents numerous, extensive exceedances of Oregon's water quality standards resulting from the discharge of pollute d stormwater from active logging roads in the Tillamook State Forest. Moreov er, as will be discussed below, Oregon law does not require that discharges from forest roads comply with water quality standards, nor, in fact, has Oregon's nonpoint source program ach ieved compliance with water quality standards. However EPA decides to m ove forward with regulating forest roads, it must recognize that in Oregon, at bare minimum, the existing laws, regulations and policies are not adequate to protect water quality and beneficial uses.

A. Oregon's Regulation of Logging Road Pollution.

Oregon's logging roads are regulated under the Forestry Practice Act, ORS 527.765 and ORS 527.770. Pursuant to ORS 527.765(1) :

The State Board of Forestry shall establish best management practices and other rules applying to forest practices as necessa ry to insure that to the maximum extent practicable nonpoint source discharges of pollutants resulting from forest operations on forestlands do not impair the achievement and maintenance of water quality standards established by the Environ mental Quality Comm ission for the waters of the state. Such best management practices shall consist of forest practices rules adopted to prevent or reduce pollution of waters of the state. Factors to be considered by the board in estab lishing best management practices shall include, where applicable, but not be limited to:

(a) Beneficial uses of waters potentially impacted;Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 159 (b) The effects of past forest practices on beneficial uses of water; (c) Appropriate practices employed by other forest managers; (d) Technical, economi c and institutional feasibility; and (e) Natural variations in geomorphology and hydrology.

The State Board of Forestry then establishes best management practices for logging roads in Oregon Administrative Rules Divis ion 625 (OAR 629

- 625

- 0000 through 629

- 625

- 0700), but does not address forest roads not associated with logging. As is evident from these provisions, compliance with state water quality standards is only required "to the maximum extent practicable."

Consequently, the Oregon Forest Practices A ct fails to prevent forest roads from causing or contributing to violations of water quality standards. Many forest roads formerly used for logging, and their associated ditches, channels, and culverts, have never been upgraded to comply with today's BMPs. <FN31> A detailed evaluation and recommendations for improvement to the Oregon Forest Practice Act with regards to roads can be found in a report prepared by the Independent Multidisciplinary Science Team in 1999. <FN32>

In addition, nonpoint source poll ution from logging roads is subject to Oregon's Environmental Quality Commission's standards. OAR
340

- 041

- 007(5). However, so long as the logging roads are operated in good faith compliance with the best management practices established by the State Board of Forestry they will not be found to violate water quality standards. Id. Because pollution from logging roads prior to NEDC v. Brown was treated as nonpoint source pollution, the Environmental Quality Commission's standards have not necessarily applied; rather, the best management practices are the predominant way in which logging roads are regulated, and, as discussed above, by statute those management practices are only required to ensure compliance with water quality standards to the "maximum extent pr acticable."

B. Oregon's Regulation of Logging Roads Pollution Fails to Protect Water Quality.

Thus far, Oregon has failed to protect water quality from the significant pollution caused by logging roads. Prior to NEDC v. Brown, Oregon attempted to regulat e storm water runoff from logging roads as nonpoint source pollution. Congress recognizes the political and logistical challenges to regulating nonpoint pollution as well as the well

- documented and extensive impacts nonpoint pollution has on water quality. In the Coastal Zone Act Reauthorization Amendments of 1990, 16 U.S.C. § 1455b ("CZARA"), Congress incentivized states to eliminate nonpoint source pollution by requiring EPA and NOAA to withhold a percentage of Clean Water Act ("CWA") a nd
Coastal Zone Man agement Act ("CZMA") grant funds from states that fail to submit coastal nonpoint programs that protect water quality. 16 U.S.C. § 1455b(a)(2). Consequentially, CZARA required Oregon to create a nonpoint source pollution program that i ncluded steps to control nonpoint source pollution from logging roads.

Oregon repeatedly submitted a coastal nonpoint program, which also repeatedly failed to receive full approval from the EPA an d NOAA, largely because it did not propose adequate regulation of forest practices. In fact, forestry is the most significant use of land in the area subject to Oregon's Coastal Nonpoint Program. In 1998, addressing Oregon's first attempt to regulate forest land in its Costal Nonpoint Program, EPA and NOAA found that, "addition al management measures are necessary to attain and maintain water quality standards and fully protect beneficial uses." In addition, EPA and NOAA stated:

Although Oregon has the basic legal and programmatic tools to implement a forestry program in conform ity with [CZARA], these tools are inadequate to ensure that water quality standards are attained and maintained and beneficial uses protected. This conclus ion is based on best available information, including the most recent 303(d) listings for Oregon waters, which indicate water quality impairments from forestry. Related to these water quality impairments, Oregon has a number of aquatic species, in particular anadromous s almonids,Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 160 that are endangered, threatened, or otherwise seriously at risk, due in part to forestry activities that impair coastal water quality and beneficial uses, including salmon spawning, rearing, and migration habitat.... Thus, Oregon will need to adopt additional manag ement measures for forestry in areas adjacent to coastal waters not a ttaining or maintaining applicable water quality standards for protecting beneficial uses, or that are threatened by reasonably foreseeable increases in pollutant loadings from new or expanding fores try operations....

EPA and NOAA concluded their 1998 findi ngs by requiring Oregon to resubmit a coastal program with regulations for forestry operations that had additional management measures.

In October 2002 and March 2003, after receiving an extension for the plan, Oregon resubmitted its Coastal Nonpoint Program. Once again, EPA and NOAA rejected this plan citing Oregon's failure to provide sufficient additional management measures for fores try operations. In November 2007, Oregon submitted to EPA and NOAA a document that again attempted to demonstrate com pliance with the requirement that it provide additional management measures for forestry. But once again, EPA and NOAA found that Oregon's Program still did not satisfy the conditions for additional management measures for forestry. In its 2008 response to Oregon's submitted 2007 documents, EPA and NOAA stated:

Based on Oregon's recent submittal and our understanding of Oregon's Forestry Program, EPA and NOAA still believe that Oregon lacks adequate management measures under the Oregon Forest Practices Act (FPA) rules for protecting water quality and the degradation of beneficial uses from forestry activities. EPA and NOAA's primary concerns, stated in the 1998 conditional find ings and reiterated in the 2004 interim decision document, remain. Oregon still l acks adequate measures for protecting riparian areas of medium,
small and non

- fish bearing streams, high risk landslide areas, and for addressing the impacts of legacy roads. A broad body of science continues to demonstrate that the FPA rules do not adequa tely protect water quality.

In other words, Oregon once again failed to meet its nonpoint source control requirements because it could not get a handle o n forestry pollution. In sum, both EPA and NOAA have already extensively reviewed Oregon's attempts at regulating forest roads and logging operations more broadly as nonpoint sources of pollution subject to best management practices, and EPA and NOAA have already concluded that those efforts have failed to protect water quality and beneficial uses. EPA, th erefore, knows full well that Oregon's program for regulating forest roads is inadequate, which must inform whether and how EPA chooses to regulate industrial loggi ng roads and forest roads under Phase I or Phase II of the stormwater program.

4. Other sta te and federal programs are also inadequate to protect water quality.

EPA suggests in its Federal Register notice that further regulation of forest roads may be unnecessary because of the existence of state nonpoint source control programs that attempt to regulate the discharge of stormwater from logging areas in general and from
construction and reconstruction of forest roads

- often referred to as state forest practices programs. <FN33> Unfortunately, these programs suffer from many of the same defects as other nonpoint programs and are inadequate substitutes for the regulation of point source discharges under 402(p)(6). When determining the effectiveness of state programs, EPA should not rely on studies that evaluate only general effectiveness of BMPs or e xtrapolate from regional studies to determine how BMPs are applied nationally, as it appears to do in this notice when citing to Prud'homme and Greis, 2002. Rather, the EPA should base its decision solely on the documented and repeated success and percent implementation for BMPs that address roads specifically, and not forestry practices generally, for each state and its programs.

Forest practices programs uniformly rely on best management practices (BMPs) to address the issues associated with logging ro ad s.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 161 However, comprehensive monitoring of the effectiveness of logging road BMPs in achieving water quality standards does not demonstrate that the BMPs are protecting water quality, nor does it undermine the abundant evidence that stormwater infrastru cture along logging roads continues to deposit large quantities of sediment into rivers and streams. <FN34> Even as new information becomes available about BMP effectiveness, many states do not update their logging road BMPs, and some states have retained BMPs t hat have been discredited for some time, such as using fords when they are known to have greater water quality impacts than other type s of stream crossings. <FN35> If the measure of success is whether a nonpoint source control program has achieved complian ce with state water quality standards, the state forest practices programs have failed.

Furthermore, as discussed in this letter, these programs are only triggered when active logging operations occur. The lack of a requirement in most states to bring exi sting, inactive logging roads and other forest roads up to some consistent standard results in many forest roads that are not currently being used for logging falling through the regulatory cracks and continuing to have a neg ative impact on our water quali ty. Currently, only the State of Washington requires that old roads be upgraded to comply with today's standard BMPs. Across most of the country, the oldest, most harmful logging roads have been grandfathered and continue to deliver sediment i nto

streams a nd rivers. <FN36>

A. Montana's programs are inadequate to protect water quality.

Montana's program, much like Oregon and other states, only requires the application of BMPs where there is a project; otherwi se roads are left untended and become unmanaged problems. For example, the Montana DNRC HCP covered the aquatic species bull trout, westslope cutthroat and redband trout. It was approved in December 2011 for a period of 50 years. Several provisions in the H CP regarding road construction and maintenance render it an inadequate surrogate for point source discharge permits. The Environmental Protection Agency's Montana office submitted comments on both the draft and final environmental impact statements expressing concerns about the road management provisio ns.

Montana's HCP increases permanent and temporary road densities on forest lands. It allows for the construction of 1,387 miles of permanent roads and an unquantified amount of temporary roads that will be used for industrial hauling of logs and logging equipment. The HCP allows 15 years for corrective actions on high risk sediment sites in bull trout streams to be completed and 25 years for cutthroat and redband trout streams. The HCP does not require that culverts be regularly monitored to ensure that they do not plug with debris and fail. It only requires that culverts be monitored for fish passage. This HCP will not adequately protect water qua lity, yet this HCP, and others like it, are often the only plans addressing forest roads.

In addition to the HCP, every two years a subset of logging sites on state, Forest Service, industrial and private non

- industrial lands throughout the state of Montana are audited to determine whether BMPs have been applied correctly. The sites audited must mee t the
followi ng criteria:

• Harvested within two years prior to the field review.
• Minimum harvest size is 5 acres. • Minimum size and volume per acre:

- west

- side sites - 3,000 or more board feet per acre removed

- east

- side sites - 1,500 or more board feet per acre removed • A portion of the sale must be located within 200 feet of a stream or have at least one Class I or II stream crossing on the road system associated with the harvest (access route and/or haul route) located on the ownership group's property within the field review project area or stream crossings are located on road for which the ownership group being reviewed had some maintenance responsibility that wasChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 162 associated with the harvest/sale that is being reviewed.

The review technique consists of a on e- time field inspection and assessment. This approach documents erosion and sedimentation problems occurring in the first two years after harvest. This is generally the critical period for erosion associated with timber harvests. Some practices conducted during harvest cannot easily be evaluated during a post

- harvest field review and are not considered during the field review. The assessment is based on visual appraisals of practices and impacts to surface soils and streams. The results are a "snapshot in t ime" of the practices and subsequent impacts. They do not necessarily reflect future impacts. Sites are split among the three teams so there is a possibility for inconsistency.

Montana BMP audits are only done on a small subset of recent timber sales. The y are not indicative of the condition of most forest roads. Additionally, agencies such as the Forest Service do not have the budgets to maintain their road systems and typically BMPs a re not routinely done on roads unless a timber sale is planned. For exa mple, a January 30, 2004 draft Analysis of the Management Situation by the Forest Service for the Flathead National Forest Plan Revision at page 4

- 2, shows that the Flathead has average annual maintenance for 1,245 miles of roads. There is a backlog for ro ad maintenance on 3,547 miles. The estimated annual budget for maintenance and backlog is $6,200,000 with the estimated annual budget for road maintenance of only $957,000. Clearly BMPs are not being appl ied to forest roads when there is such a budget shor tfall.

B. The U.S. Forest Service's Watershed Condition Framework is untested and cannot be relied upon to protect water quality.

The Watershed Condition Framework (WCF) is an initiative launched by the U.S. Forest Service in 2011 for "proactively implem enting integrated restoration on priority watersheds on national forests and grasslands." <FN37> The WCF focuses restoration activit ies - including road treatments - in those watersheds that have been identified as priorities for restoration (at least two priority watersheds for each forest and grassland). Developing Watershed Restoration Action Plans (WRAPs) is a key step in improving a watershed's co ndition class through the implementation of essential projects. Since the WCF was launched, many forests ar e in the process of implementing their WRAPs, and some have yet to begin. The WCF Framework directs WRAPs be based on a 5

- year program of work to improve condition class scores, which is achieved once all project planning is completed for each WRAP.

The U SFS estimates that WRAPs will take 6 years or more to complete, of which it could take 3 or more years just to finish environmental review under the National Environmental Policy Act (NEPA) for the essential projects in addition to the initial

assessments and project designs. <FN38>

The WCF indicates that a "watershed is considered to have moved to an improved condition class and reported as such when all of the essential projects necessary to move a watershed to an improved class and identified in a [WRAP ] are completed." <FN39> There is no requirement that before a watershed can be moved to an improved class it actually show positive effects on the ground. The pr ojects simply need to be completed.

Most forests completed at least two Watershed Restoration Action Plans, but are years out from implementing the essential projects within each WRAP. It is not proven that the WCF or WRAPs will meet with success to actually improve watershed integrity, and the process does not require that watershed health actual ly improve on the ground. For these reasons, EPA cannot rely on the WCF process as a surrogate for regulating point source discharges from forest roads.

C. The U.S. Forest Service Core BMPs cannot be relied upon to protect water quality.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 163 The National Cor e BMP technical guide was released in April 2012 and national BMP monitoring protocols have not yet been developed. <FN40> When they are completed they will be contained in Volume 2 of the technical guide (FS

- 990b). <FN41> The
National Core BMPs in the tec hnical guide are deliberately general and non

- prescriptive. The National Core BMPs require the development of site

- specific BMP prescriptions based on local site conditions and requirements to achieve compliance with established State, tribal, or national water quality goals. However, because the document is national in scope, it cannot address all possible practices or practices specific to local or regional soils, climate, vegetation types, or state

- specific requirements. It is expected that State require ments and BMP programs, Forest Service regional guidance, and the land management plan will provide the criteria for
site

- specific BMP prescriptions. The National Core BMPs provide direction on "what to do" and the local direction will provide
direction on "how to do it." <FN42> The National Core BMPs and monitoring protocols have not been developed for site

- specific application and cannot be relied upon as a substitute for regulating point source discharges from forest roads.

As is evident from EPA's own studies, the information cited by EPA in the May 23 Federal Register notice, and the preceding discussion of some existing programs, the current regulation of stormwater discharges from forest roads is inadequate to protect water q uality. Regulation under 402(p)(6) will help correct the deficiencies of these programs by ensuring forest road owners and operators apply mandatory management standards for all forest roads, in a manner that is transparent and enforceable, to achieve compliance w ith water quality standards and the Clean Water Act.

<FN6> Endicott, D. 2008. National Level Assessment of Water Quality Impairments Related to Forest Roads and Their Prevention by Best Management Practices - Final Report (Prepared for the U.S. Environmental Protection Ag ency, Office of Water, Office of Wastewater Management Permits Division) (Contract No. EP -C- 05

- 066, Task Order 002). <FN7> Endicott at 2 (citing EPA's 2000 and 2002 National Water Quality Inventories). <FN8> Guidance Specifying Management Measures For Sour ces of Nonpoint Pollution in Coastal Waters, EPA Guidance Paper
840 -B- 93

- 001c, at 27 (1993); see also Endicott at 9.
<FN9> Endicott at 43

- 44, 49. <FN10> Id.; See also Mills, Keith, P.E., Oregon Department of Forestry, Forest Roads, Drainage and Sediment De livery in the Kilchis
River Watershed 4

- 5 (Tillamook Bay National Estuary Project, June 1997), available at www.oregon.gov/ODF/privateforests/docs/kilchis.pdf [hereinafter "Mills Report"] (citing studies indicating 25 to 75% of fores t road drainage directl y enters streams and rivers). <FN11> See generally Endicott at 16

- 20, 31

- 38 (explaining effects of turbidity and sedimentation on aquatic species); Mills Report at 5. <FN12> Rieman and McIntyre 1993 at 6. <FN13> Shepard et al. 1984 at 1; Cederholm and Reid 1987 at 392; Furniss et al. 1991 at 301.
<FN14> Endicott at 31

- 37. <FN15> Biological Opinion of the Effects to Bull Trout and Bull Trout Critical Habitat from Road Management Activities On Nat ional Forest System and Bureau of Land Management Lands in West ern Montana, April 29, 2008, Page 8. <FN16> Shepard et al. 1984 at 6; Pratt 1992 at 6. <FN17> Quigley and Arbelbide 1997 at 1183.
<FN18> Endicott at 8

- 9; H. Michael Anderson, Water Quality Planning for the National Forests, 17 Envtl. L. 591, 592 (1987).

< FN19> Roadless Area Conservation Rule, 66 Fed. Reg. 3244, 3245 (Jan. 12, 2001); Endicott at 23. <FN20> See Water and the Forest Service at http://www.fs.fed.us/publications/policy

- analysis/water.pdf (January 2000). <FN21> Endicott at 23; 66 Fed. Reg. at 32 67; Robert L. Glicksman, Pollution on the Federal Lands II: Water Pollution Law, 12 J. Envtl. L. & Pol'y 61, 73 (1993).
<FN22> Endicott 2008 at 70.
<FN23> Id. at 72.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 164 <FN24> Id. at 91. <FN25> Espinosa, F.A., Rhodes J.J., and McCullough, D.A. 1997. The failu re of existing plans to protect salmon habitat on the Clearwater National Forest in Idaho. J. Env. Management 49: 205

- 230. <FN26> Ziemer, R. R., J. Lewis, T. E. Lisle, and R. M. Rice. 1991b. Long

- term sedimentation effects of different patterns of timber
h arvesting. In: Proceedings Symposium on Sediment and Stream Water Quality in a Changing Environment: Trends and Explanation, pp. 143

- 150. International Association of Hydrological Sciences Publication no. 203. Wallingford, UK. <FN27> Rhodes, J.J., McCullou gh, D.A., and Espinosa Jr., F.A., 1994. A Coarse Screening Process for Evaluation of the Effects of Land Management Activities on Salmon Spawning and Rearing Habitat in ESA Consultations. CRITFC Tech. Rept. 94

- 4, Portland, OR. <FN28> Beschta, R.L., Rhodes, J.J., Kauffman, J.B., Gresswell, R.E, Minshall, G.W., Karr, J.R, Perry, D.A., Hauer, F.R., and Frissell, C.A., 2004. Postfire Management on Forested Public Lands of the Western USA. Cons. Bio., 18: 957 - 967. <FN29> MacDonald, A. and Ritland, K.W., 1989. S ediment Dynamics in Type 4 and 5 Waters: A Review and Synthesis.
TFW

- 012

- 89

- 002, Wash. Dept. of Natural Resources, Olympia, Wash. <FN30> Kattleman R., 1996. Hydrology and water resources. Pages 855

- 920 in SNEP Science Team, Sierra Nevada Ecosystem Project Final Report to Congress: Status of the Sierra Nevada, vol. 2. Davis: Centers for Water and Wildland Resources, University of California. Wildland Resources Center Report no 39. <FN31> See Glen Spain, Dam, Water Reforms, and Endangered Species in the Klama th Basin, 22 J. Envtl. L. & Litig. 49, 65 n. 60,
83

- 84 (2007) (noting the National Marine Fisheries Service and other independent reviewers have critiqued the OFPA and determined it to be insufficient to prevent salmonid species' extinction). <FN32> Recovery of Wild Salmonids in Western Oregon Forests: Oregon Forest Practices Act Rules and the Measures in the Oregon Plan for Salmon and Watersheds. (Technical Report 1999

- 1 to the Oregon Plan for Salmon and Watersheds, Governor's Natural Resources Office, Salem, Oregon.) located at http://www.fsl.orst.edu/imst/reports/1999

- 1.pdf. See also NOAA

- NMFS, 2010. 75 Federal Register 29489

- 29506 Listing Endangered and Threatened Species: Completion of a Review of the Status of the Oregon Coast volutionarily Significant Unit of Coho Salmon; Proposal to Promulgate Rule Classifying Species as Threatened (May 26, 2010) located at http://www.gpo.gov/fdsys/pkg/FR

- 2010

- 05

- 26/html/2010

- 12635.htm; Oregon Department of Forestry. 1997. Forest Roads, drainage and sediment delivery in the Kilchis River Watershed. Report for the Tillamook Bay National Estuary Project (rating 31% of the road length was rated certain or possible for sediment delivery to streams) located at http://www.oregon.gov/ODF/privateforests/docs/kilchis.pdf?ga=t; Skaugset, Arne and Marganne Allen, Oregon Department of Forestry Forest Practices Monitoring Program. 1996. Road Sediment Monitoring Project Report: Survey of Road Drainage in Western Oregon

. ODF Technical Report (monitoring on state and private lands foun d a general lack of filtering of drainage waters near streams and that a significant proportion of active and inactive roads can deliver sediment to streams by ditch delivery) located at http://www.oregon.gov/ODF/privateforests/docs/RoadSediment.pdf?ga=t. <FN33> 77 Fed. Reg. 30,476.
<FN34> Endicott at 166.
<FN35> Id. at 155

- 56.
<FN36> See Endicott at 118

- 19. <FN37> Watershed Condition Framework (WCF), p. vi; FS

- 977, May 2011.
<FN38> WCF at 17.
<FN39> WCF at 16. <FN40> National Best Management Practices for Water Quality Management on National Forest System Lands - National Core BMP Technical Guide, 2012.
<FN41> BMP Technical Guide at 2.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 165 <FN42> BMP Technical Guide at 2.

Response Please refer to Response 12 and Response 13. Refer also to Response 3 and t o the preamble to the final rule.



# Comment ID 0268

- A1.001.003

Author Name: Jane F. Severt Elroy Zemke Organization: Wisconsin County Forests Association (WCFA) Issue Category: 15 Since 1995, Wisconsin's Forestry BMPs for Water Quality have been monitored on nearly 600 timber sales. BMPs are correctly implemented over 90% of the time, across all land ownerships; federal, state, county, and private. In addition, when BMPs are used there are no observable impacts to water quality over 99% of the tim e. Beyond monitoring, Wisconsin Department of Natural Resources has also researched the effectiveness of Forestry BMPs, specifically riparian management zones (RMZs) or buffers that are immedia tely adjacent to lakes and streams. This research has found tha t RMZ BMPs adequately protect water quality. Results indicate no discernible difference in water quality following silvicultural activities in Wisconsin's forests.

Response Please refer to Response 12. Refer also to Response 13 and Response 15.



# Co mment ID 0269

- A1.001.007

Author Name: Chris Winter Paul Kampmeier Organization: Washington Forest Law Center and Crag Law Center (obo Northwest Environmental Defense Center et al.) Issue Category: 15 4. EPA should move quickly to develop and implement a Phase II program for nonindustrial, inactive and other forest roads tha t discharge stormwater to streams.

In addition to recommending that EPA abandon the proposed Phase I rule amendment, the Conserva tion Groups also strongly recommend that you move forward with a Phase II regulatory program, under section 402(p)(6) of the Clean Water Act, to addres s the ongoing water quality problems resulting from nonindustrial, inactive and all other forest roads no t subject to Phase I. This program should be developed in a manner that addresses the on

- going degradation of our nation's waterways from forest road pollution, and eliminates the current violations of the Clean Water Act. With this letter, we once again r emind you of the welldocumented problems stemming from forest roads. In addition, we put forward an outline of key elements of a regulatory program to be addressed as you develop the new Phase II program.

A. Forest roads continue to have a significant impact on water quality in streams and should be regulated under EPA's Clean W ater Act regulations.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 166 Forest roads impact beneficial uses of waterways through a variety of means, namely:

• Road use and inadequate maintenance leads to excessive fine sediment entering stream channels. o Most road surfaces are made of erodible material. Exposure to rainfall leads to surface runoff, which carries the sediment into streams (Sugden and Woods 2007).
o Surface eros ion is strongly related to maintenance - less maintenance results in increased delivery of fine sediment to streams (Weaver and Hagans 1999, Reiter et al. 2009). o Changes in road drainage (often brought on by heavy use) can increase erosion and sediment delivery (Brooks et al. 1991, Sheridan 2007).
o Culverts - if too small to meet storm capacity - can get plugged. Water then overtops the road, which can divert streamflow onto the road surface and/or can erode fill (Best et al. 1995, Bloom 1998, Wemple et al. 2001). o Excess suspended sediment can interfere with drinking water treatment (Dellasala et al. 2011). o Fine sediments can adversely affect fish. Reproductive success is reduced when sediment interrupts the ability of eggs to m etabolize. Young fi sh that have not emerged from the interstitial spaces of spawning gravel areas can be smothered. And the abundance and qualit y of spawning substrate can be severely affected by sedimentation. (Cederholm et al. 1980, Eaglin and Hubert 1993, GLEC 2008).

• Roads can potentially increase the frequency of landslides - depositing large amounts of debris into streams. o As debris pours into the creek, it fills pools, aggrades the streambed, and covers spawning gravels suffocating fish (Tromb ulak and
Frissell 20 00).
o Roads built with side

- cast techniques and mid

- slope roads on steep ground (that used unstable fill) are usually the most prone to failure (USDA FS 2000a, Swanston 1991). o Large volumes of material from landslides can be deposited to streams and c an scour channels for some distance (Weaver and Hagans 1999, GLEC 2008).

• Roads can alter stream morphology - which can result in increased water temperature. o Roads can intercept subsurface flow and re

- route the water through ditches, crossdrains and stream crossings (USDA FS 2000a). During storms, this system operates like an extension of the stream network - increasing peak flows (Wemple et al. 1996). o Changing peak flows can alter the channel dimensions of the stream, often making them wider and/ or deeper, which can lead to increased water temperatures (USDA FS 2000a). o Roads in valley bottoms can restrict the area where the stream can move (meander). Stream velocities could increase which t hen leads to increased bank erosion (USDA FS 2003).

• Roads often contain undersized or poorly built culverts at stream crossings - resulting in blocked or restricted passage for aquatic organisms.
o Culverts - the most widely used crossing type - primarily prevent upstream migration, reducing spawning habi tat for aquatic organisms (including threatened and endangered fish). If the culvert has a poor outlet, fish can be injured/killed as they move downstr eam (Clancy and Reichmuth 1990, Cupp et al. 1999, Hendrickson et al. 2008).

As briefly outlined above, it is well

- established in the scientific literature that sedimentation from forest roads has a major impact on beneficial uses of our nation's rivers and streams. According to the 2008 National Level Assessment of Water Quality Impairme nts Related to Fores t Roads and Their Prevention by Best Management Practices Final Report, "Among all pollutants measured in streams, sediment has the largest effect on stream biota" (GLEC 2008). Sedimentation has major impacts on stream water quality and fis h habitat.
The h ealth of a stream depends greatly on the ability of fish and other organisms to survive. Therefore, sedimentation is a major concernChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 167 for the overall health of forest streams.

In EPA's latest water quality report to Congress, sediment continues to be iden tified as one of the top 10 causes of impairments in assessed rivers and streams (US EPA 2009). The ‘Wadeable Streams Assessment' included in that report concludes that excess streambed sediments (and nutrients) have the highest impact on biological condit ion (US EPA 2009). The U.S. Forest Service has also identified sediment (turbidity and bedload) to be one of the most significant water quality problems on national forests (USD A FS 2000b; see generally relevant materials sent to EPA by the Northwest Envir onmental Defense Center on April 25, 2012 and resubmitted with this letter).

In the Federal Register EPA has acknowledged the impact of forest roads on streams, stating: "[s]tormwater discharges from lo gging roads, especially improperly constructed or maintained roads, may introduce significant amounts of sediment and other polluta nts into surface waters and, consequently, cause a variety of water quality impacts." 77 Fed. Reg. at 30476. EPA acknowledges that pol lution from forestry and related activities is among the "top twelve probable sources of impairment for rivers, streams, a nd coastal shorelines." Id. Knowing these effects of forest roads, EPA would be remiss to not address the issue by instituting a Clean Water Act Phas e II regulatory program.

B. Non

- industrial and other forest roads should be regulated by EPA with a regul atory program under Section 402(p)(5) and (6) of the Clean Water Act; essential regulatory elements should be applied nationally, regardless of land ownership.

EPA's authority to develop Phase II programs derives from sections 402(p)(5) and (6) of the Clean Water Act, 33 U.S.C. §§ 1342(p)(5) & (6). Section 402(p)(6) requires EPA to issue regulations that "designate stormwater discharges, other than those discharges described in paragraph (2), to be regulated to protect water quality and [to] establish a comprehensive program to regulate such designated sources." 33 U.S.C. § 1342(p)(6); see also 402(p)(5)(C). Any Phase II program must meet certain requirements: "The program sh all, at a minimum, (A) establish priorities, (B) establish requirements for Stat e stormwater management programs, and (C) establish expeditious deadlines." Id. "The program may include performance standards, guidelines, guidance, and management practices and treatment requirements, as appropriate." Id.

While the National Pollution D ischarge Elimination System (NPDES) program has been remarkably successful in reducing surface water pollution from regulated point sources, nonpoint source programs under sections 208 and 319 of the Clean Water Act are widely acknowledged to be ineffectual. Andreen at 542

- 43 (praising effectiveness of NPDES program and ability of the program to achieve results "without causing any significant harm to the economy in terms of unemployment or growth or investment"); Glicksman at 71

- 73 (indicating "[n]onpoint sources are responsible for about sixty percent of state water quality standard violations"). Indeed, EPA acknowledges that the majority of the nation's remaining water quality impairment comes from nonpoint source pollution. Glick sman at 72; Andreen at 544 n.36, 42; GLEC at 3 (stating EPA reported that nonpoint source pollution was the dominant source of remaining surface water pollution). The failure of the nonpoint programs has been ascribed primarily to the lack of mandatory monitorin g requirements, the lack of agency and citizen enforcement actions, and the lack of penalties for noncompliance. Andreen at 548

- 92 (describing hallmarks of NPDES regulation that have made it a successful program); Glicksman at 63

- 64, 71

- 73, 77

- 78. Thus, these are
critical co mponents that must be included in an effective Phase II regulatory program.

As stated above, stormwater from forest roads has a profound effect on the water quality of forest streams. In order to prote ct beneficial uses, EPA needs to regulate non

- Phase I forest roads under a restrictive Phase II program. EPA's Phase II regulatory approach should, at the minimum, include the following essential elements to ensure that water quality protection will be achieved during a reaso nable compliance period: 1) an in ventory of all roads (i.e., including unauthorized, unused and temporary roads); 2) a plan for action; 3) aChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 168 schedule for completion; 4) performance measures that achieve water quality standards; 5) accountability measures through enf orcement (i.e., civil penalties); 6) a monitoring program; and 7) adaptive management.

1. Inventory of all roads.

All forest landowners should develop and maintain an inventory of all roads and submit that inventory to the regulatory agenc y. The inventory should include road s currently being used, roads no longer used, temporary roads, and unauthorized roads. In addition, the inventory should contain minimum information about the condition of the roads. Field verification may be warranted.

2. Plan for action.

Forest lando wners should submit a plan for action to the regulatory agency for approval. The plan should include the following: (a) a map of all roads, fish passage barriers and drainage problems; (b) a list of roads, prioritizing roads with passage barriers, drainage problems, and landslide risk and dealing with the worst first; (c) proposed treatments (i.e., decommissioning, maintenance, improvements); (d) work detail; (e) a schedule for implementation; and (f) a storm plan to handle emergency maintenance and r epairs

. The plan for action should prioritize disconnecting forest roads from the stream network, i.e., reducing hydrologic connectiv ity between forest roads and nearby rivers and streams. Any changes to the work plan should be approved by the regulatory agency. A good example of this is Washington State's regulatory program (See 77 Fed. Reg. 30477; see generally relevant materials sent to EPA by the Northwest Environmental Defense Center on April 25, 2012 and resubmitted with this letter).

3. Schedule for comp letion.

Forest landowners should submit for agency approval an overall schedule for addressing all impacts to streams from their road network. The schedule should include interim milestones and expected completion dates to bring roads up to standards. So me tasks, such as maintenance, will be ongoing to ensure impacts are eliminated or reduced, but should also be included in the schedule. The sc hedule helps secure a commitment from the landowner that water quality protection will occur within a reasonable timeframe.

4. Performance measures - Water quality standards.

EPA should establish clear and understandable performance measures. Performance measures are on

- the

- ground outcomes that may be met through a combination of different best management practices (BMPs). An example of a site

- specific performance measure from Washington State is: no visible plume of sediment. To meet this, a broad range of BMPs may be implemented such as sediment ba rriers, mulching, improving road surfaces, settling basins, etc. If a sediment plume is observed, then water quality standards are not being met and BMPs need to be evaluated and improved.

In some states that already mandate BMPs, additional BMPs can and should be developed where those BMPs are not adequate to me et th e performance measures. In states that have no mandatory BMPs, a full suite of BMPs will have to be developed to meet the performance measures. By establishing performance measures, EPA will allow for flexibility while still maintaining a consiste nt level of protection for the designated and existing uses adopted in each state's water quality standards.

For example, the program must ensure that the use of BMPs is verified to ensure that BMP implementation will achieve the resu lts expected, namely meeting the performance standards and protecting water quality. There is extensive scientific research that do cuments that BMPs are often ineffective at addressing impacts, and, in particular, cumulative impacts from roads often are not accoun ted for.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 169 <FN15> Because some, if not all, states operate under the principle that landowners' implementing recommended or required BMPs is the equivalent of meeting water quality standards, it is essential that any permit require a demonstration that BMPs meet the performance measures and other water quality goals.

Annual reports should be submitted summarizing (at minimum) the BMPs implemented and road maintenance completed that year. Landowners should also be required to submit, every 3

- 5 years, a supplemental report on whether performance measures are being met. This will ensure that road maintenance and implementation of BMPs are tracked by the regulatory agency, and that the implementation of those BMPs actually meets performance measures. Annual water quality monitoring should also be used to verify that BMPs an d performance measures are sufficient to achieve or maintain water quality. If water quality standards are still not being met for a water body, additional measures should then be required.

In developing these performance measures, EPA must be comprehensive in providing full protection of existing and designated beneficial uses. For example, when analyzing culverts, consideration of fish passage must include all life cycle stages of re levant fish. In areas of nonfish bearing streams, consideration for protection of amphibians must include addressing passage conce rns that are essential for purposes of allowing populations to recolonize. Likewise, culverts should be designed not only to accommodate 100

- year floods with debris passage but should also consider locally

- projected impacts of global climate change.

5. A ccountability - Enforcement - Civil Penalties.

EPA should ensure the regulatory program establishes accountability. Objectives must be understood from the beginning so it i s clear when a road is in compliance. Checks and balances are needed to ensure inventories are complete, BMPs are being implemented and built correctly, BMPs are effective as designed, water quality standards are being met, and schedules are being adhered to. E PA and state water quality protection agencies should retain authority to imp lement enforcement actions, such as stop work orders and imposition of civil penalties, if these elements are not adhered to. In addition, citizens should retain the right to file lawsuits if EPA is not enforcing the
Clean Water Act or landowners are not c omplying with it.

6. Monitoring.

EPA should include a monitoring component - beyond the annual reports described in #4. Monitoring should cover implementation to ensure actions are being taken as planned and to keep track of progress over time. Monitor ing should also assess effectiveness - whether the program, BMPs and/or other activities are indeed effective at reducing impacts to beneficial uses of the Nation's waters.

7. Adaptation.

Although landowners, agencies and the public appreciate predictability, there will be times when changes need to be made to meet the desired outcomes. As stated repeatedly in this letter, the goal is to ensure forest roads are compliant with the Clean Water Act. If measures and practices outlined in an EPA regulatory program are not meeting the goal, then the program needs to be reviewed and changed.

As is often stated by stakeholders, the development of the program, implementation, and results should all be transparent. In addition, it should be consistent enough to b e applicable from state to state, across landownerships and between EPA regions while also considering geographic and climatic differences. The program should be equitably administered and should achieve results in a timely fash ion.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 170 Forest roads are impacting water quality across the nation in violation of the Clean Water Act. We urge the EPA to step forward and address this issue, just as it has done with industry, municipalities, construction sites, dairy farmers, transportation infr astructure, and
othe r pollution sources. We would be willing to work with you as you move forward in developing an effective Phase II regulatory program for non

- Phase I forest roads.

<FN15> Espinosa et al. 1997 demonstrated that aquatic habitats were severely damaged by road s and logging in several watersheds despite BMP application. The authors further noted that the blind reliance on BMPs in lieu of limiting or avoiding activities that cause aquatic damages serves to increase aquatic damage. Even activities implemented with somewhat effective BMPs still often contribute negative cumulative effects (Ziemer et al. 1991, Rhodes et al. 1994).

Response Thank you for your comments. The EPA has reviewed all comment letters and responded to the comments received on the proposed rule. Please refer to Response 3, Response 4, Response 7, Response 8, Response 9, Response 10, Response 11, Response 12, Response 1 3, and the preamble to the final rule.



# Comment ID 0270

- A1.001.005

Author Name: Ostermayer G. Organization: University of Montana Issue Category: 15 Impacts of Logging Operations on Water Quality throughout the West

Assuming the Silviculture Rule is upheld by the Supreme Court, and logging is maintained as a non

- industrial activity and determined a

non

- industrial point source, the EPA will regain the flexibility to address the stormwater impacts of logging roads throu gh

non

- regulatory means and Best Management Practices (BMPs) provided by Section 402(p)(6) of the CWA. However, the question remains if forestry BMPs are effective at reducing stormwater runoff and if the implementation rates are sufficient to satisf actori ly mitigate stormwater impacts on water quality.

Throughout the West, logging operations have posed a significant threat to water quality, with runoff commonly containing sed iment, nutrients, and heavy metals (Cecchini

- Beaver 2012). To defend against ero sion, logging roads are often designed to collect stormwater in ditches, channels, and culverts, which can lead directly into nearby surface water (Winter 2010). The sediment in this run off can bind with heavy metals and pesticides, can increase water trea tment costs downstream (National Research Council 2008), and can negatively impact fish spawning and rearing habitat (Cecchini

- Beaver 2012). Other potential impacts of forestry activities include runoff of nutrients and organic and inorganic chemicals due to fertilizer and pesticide application, and increased water temperatures due to removal of riparian vegetation (USEPA 2005).

Persistent Impacts of Logging Operations

Documented impacts on water quality from silviculture

- related activities predate well

- established Best Management Practices, but also continue under contemporary forest practices controlled by state legislation such as Forest Practices Acts and Streamside Management Acts. In the state of California, according to California's State Water Resources Control Board (SWRBC), silviculture contrib utedChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 171 pollution to 17% of the state's polluted rivers and 21% of polluted lakes in 1996, several years after the state en acted Forest Practice Rules (SWRBC 2000).

In a recent analysis, the Montana Department of Environmental Quality (MTDEQ) determined that the state of Montana has "164 waterbodies (stream segments or lakes) identified as impaired form forestry

- related acti vities; forest roads and silviculture are the primary sources of impairment." Forest roads (construction and use) account for 17% of impaired waterbodies and 8% of total i mpaired stream miles throughout the state; and 48% of all forested watersheds contain at least one impaired waterbody (MTDEQ 2012, See Section 3.1.2). These impairments persist, even with Montana's Streamside Management Act, which requires BMPs within Streamsi de Management Zones, and promotes voluntary BMPs outside of those 50

- foot streams ide zones (Logan 2001). These impairments persist, even with voluntary BMP implementation rates hovering around 97 % for the last decade (Ziesak 2010).

In paired catchment studies in the western Cascade Mountains of southern Oregon, statistically significant increases in local and downstream streamflow and sediment yield were observed following contemporary methods of forest harvest promoted by Oregon Forest Practices Act. These particular sites involved aerial skyline logging for 65 percent clear

- cuts of the Fenton Creek watershed (Zegre 2008). Similar studies in Oregon have found significant, local effects on hydrology, sediment, temperature, nutrients, and aquatic invertebrates due to contemporary timber harvest practices (OFRI 2009).

Using Idaho as an example, the negative impact of sediment and silviculture activities can also be clearly seen, even after t he implementation of Idaho's Forest Practices Act in 1974. Sediment has been identified as the "biggest water quality problem in Id aho streams. For over 90% of the streams on the state's 1998 303(d) list, sediment was identified as a pollutant of concern" (Row e et al., 2003, p. 1). In 2010, sediment impacted 27% of Idaho's assessed streams and almost half of the impaired streams. Alth ough only 12% of those impaired streams were given a probable cause, 5% of those streams identified silviculture as the probable cause of impa irment (USEPA 2010). Salmonid fish have especially been impacted; five species of ESA

- listed salmonid fish are lis ted as endangered species due to sediment sources from logging operations and logging roads (Cecchini

- Beaver 2012).

Looking at a national scale, in 2000, according to the EPA, sediment associated with logging activities was the fifth leading source of

st ream and river impairment nationwide, with logging roads being a significant source of that sediment (Winter 2010). In that s ame data for 2012, silviculture was identified as the probable cause for only 3% of the nations' rivers and streams; however, 12% o f impaired waters listed their cause as "unknown" and 7% listed their cause as an "unspecified nonpoint source" (USEPA 2012). States suc h as Oregon, Washington, and California also failed to give detailed information about probable stream impairment causes in their most recent report to the EPA. Attributing the implementation of Forest Practices Acts and other statewide Best Management Practic es to an increase or decrease in silviculture

- related stream impairments at state levels, is therefore, still a matt er or speculation and generalization in some states, due to the lack of detailed reporting coming from those particular states. Whether or not forestry BMP's are effectively reducing water quality impacts on a nationwide scale is difficult to say, because state reporting on possible causes of impairment is not consistent. A state may list sediment as a cause of impairment, but will not go any further to identify the source of the sed iment. Because a large portion of streams remain un

- assessed, this confound s the issue even further.

Effectiveness and Implementation of Existing Best Management Practices: What do the Numbers Really Say?

Despite the lack of statewide and regional stream impairment data directly attributed to logging operations and logging ro ads, select studies have found significant impact to water quality related to contemporary harvesting practices (MTDEQ 2012; Zegre 2008;
Cecchini

- Beaver 2012). These impacts persist, even with current high rates of BMP implementation. The overall national implementation rate for forestry BMPs, for instance, is estimated at 89% (Ice, Schilling, and Vowell 2010). Implementation ra tes for theChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 172 western region of the U.S. (California, Idaho, Montana, New Mexico, Nevada, Oregon, and Washington) are estimated at 94 % (Ice et al. 2004), with Idaho at 96% implementation, Washington at 80% (Ice, Schilling, and Vowell 2010), and Montana at 97% implementati on (Ziesak 2010). Forestry certification programs, such as the Sustainable Forestry Initiative (SFI), have also led to increased BMP implementation rates (USEPA 2005).

In states with mandatory BMPs, correct implementation has been attributed to decreased turbidity and improved water quality i n numerous watershed studies throughout the country (Ice and Schilling 2012), implying that BMPs, when applied correctly, can reduce water quality impairments. However, the fact that impairments still persist calls into question the voluntary nature of these BMPs, the actual widespread compliance with both voluntary and mandatory BM Ps and SMZs, as well as the impact of legacy forest roads which may or may not fall within the scope of current Best Management Practices.

In Montana, for instance, significant forestry related impairments (MTDEQ 2012) still persist, despite recent BMP i mplementation rates of 97%. Montana's 2010 audit, in particular, found that voluntary forestry BMPs were correctly applied 97% of the time, Strea mside Management Zone (SMZ) requirements were met 97% of the time, and SMZ effectiveness rated at 98% (Logan 20 10). What needs to be noted about this audit is that it only represents logging operations who responded to grant access to the team of auditors. T his implementation study is therefore skewed towards higher compliance operations. Implementation rates in st ates with voluntary BMPs are essentially compliance rates based on a subset of logging operations that have agreed to be audited; they measure the cor rectness of implementation, not the overall rate of implementation. In terms of assessing actual implement ation rates, these studies fall significantly short and offer a skewed interpretation of BMP implementation. States with mandatory BMPs, such as those states with Forest P ractices Acts, may offer a more unbiased analysis of BMP implementation; however, cor relation with improved water quality at state levels is still lacking and the incorporation of legacy forest roads into Forest Practice Rules is still a significant issue.

Moving Forward

Impacts on water quality from silviculture

- related activities per sist in the West, even under contemporary forest practices controlled by state legislation such as Forest Practices Acts and Streamside Management Acts. This can be attributed to a lack of consisten t, mandatory BMPs and the need to address the stormwater impacts from legacy logging roads. The non

- regulatory nature of current forestry BMPs prevents these BMPs from realizing their full potential, especially in states without progressive and mandatory Forest Practi ce Rules.

Response Please refer to Response 12 and Response 13. Refer also to Response 5, Response 7, Response 8, Response 15, and the preamble to the
final rule.



# Comment ID 0273

- A1.001.003

Author Name: Snyder William Organization: State of California Natural Resources Agency Issue Category: 15 California has made and continues to make great gains in protecting water bodies from logging road related non

- point source water pollution under the Z'Berg

- Nejedly Forest Practice Act (FPA) and the California Forest Practice R ules (FPRs), as well as California's
Porter

- Cologne Water Quality Control Act (Porter

- Cologne) and the federal Clean Water Act (CWA). A clarification, such as the oneChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 173 proposed by EPA in response to the decision by the Ninth Circuit, is needed to avoid reg ulatory uncertainty that would put this and future progress at risk.

California's FPRs minimize road sediment delivery to watercourse channels. The FPRs and the current non

- point source (NPS) approach to forest roads in California require landowners to install a sufficient number of drainage structures per mile of road to prevent water quality problems. In the current NPS approach, forest land owners who conduct timber operations must provide properly functioning road drainage structures as necessary t o protect water quality and meet the conditions of both their permitted plan and their Regional Water Quality Control Board (RWQCB) NPS permit (Conditional Waiver or General Waster Discharge Requirements (WDR)). Monitoring results and research studies hav e demonstrated that the FPRs are highly effective in protecting water quality when properly implemented.

CAL FIRE emphasizes that with the proposed EPA clarification, the following will occur:

• Continued applicability and enforcement of road

- related FP Rs designed as best management practices (BMPs) to protect water quality during construction, maintenance and use. • Continued applicability and enforcement of project

- specific Timber Harvesting Plan (THP) water quality related road mitigations.
• Future applicability and enforcement of the currently pending package of improvements in the road

- related FPRs designed to protect water quality, including the requirement for hydrologic disconnection of logging roads from watercourses to the extent feasib le (pr eventing turbid water from a road or and inside ditch to reach a watercoruse). • Continued applicability and enforcement of road

- related measures and mitigations contained in Conditional Waivers (Waivers),
Watershed

- wide Water Discharge Requirements (WWDRs ), and BMP

- based Total Maximum Daily Load (TMDL) implementation

measures.

Response Please refer to Response 12. Refer also to Response 13 and Response 15.



# Comment ID 0274

- A1.001.003

Author Name: Graham Owen Organization: Alaska Forest Association (AFA) Issue Category: 15 These minor discharges are best managed through Best Management Practices. The State of Alaska Department of Environmental Conservation has regulations addressing the pollution control requirements within the State an d the State of Alaska also has a Forest Practices Act that includes BMPs for constructing and maintaining logging roads and other logging activities.

Response Please refer to Response 12. Refer also to Response 13 and Response 15.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 174 

# Comment ID 0276

- A1.001.003

Author Name: Paul DeLong Ken Johnson Organization: Wisconsin Department of Natural Resources (WDNR) Issue Category: 15 In Wisconsin, we have monitored nearly 600 timber sales since 1995 and found that Wisconsin's forestry best management practices (BMPs) are correctly used over 90% of the time across all forest landowners and that when BMPs are used, water quality impact s are not observed over 99% oftime. This demonstrates the success of Wisconsin's Forestry BMPs program in prot ecting water quality during forest management activities in our state.

Response Please refer to Response 12 and Response 15.Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads



# Issue Category 16: Regulating Stormwater Discharges From Forest Roads

Pages 2-17 5 to 2 -1 90

Response to Public Comments

Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads

November 30, 2012

Docket #: EPA

- HQ -OW- 2012

- 0195Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 175 

# 16

. REGULATING STORMWATER DISCHARGES FROM FOREST ROADS

Comment ID 0188

- A1.001.003

Author Name: Koehn Steven Organization: Maryland Department of Natural Resources (MD DNR) Issue Category: 16 Responding to the Ninth Circuit Court's decision in NEDC vs. Brown by requiring a NPDES permit for logging roads would have created an unnecessary cost burden for both landowners and government. Given that forestry best management practices are widely used, over 80% in Maryland, and that water quality from forested landscapes is already consistently higher than other land us es, these
additional costs are not defensible from any standpoint.

Response Please refer to Response 13. Refer also to the preamble to today's rule.



# Comment ID 0189

- A1.001.003

Author Name: Morgan Charlie Organization: Mississippi Forestry Commission (MS FC) Issue Category: 16 Responding to the Ninth Circuit Court's decision in NEDC vs. Brown by requiring a NPDES permit for logging roads would have created an unnecessary cost burden for both landowners and government. Given that forestry best management practices are wide ly used
and that wate r quality from forested landscapes is already consistently higher than other land

- uses these additional costs are not defensible from any standpoint.

Response Please refer to Response 13. Refer also to the preamble to today's rule.



# Comment ID 019 0

- A1.001.005

Author Name: Brian S. Keiling Howard M. Persinger, Jr. Organization: West Virginia Land and Mineral Owners Association (WVLMOA) Issue Category: 16 The cost of changing from BMPs to another regulatory approach to forest roads would be an unnecessary burden on the landowners attempting to maintain productive forestland. We urge the EPA not to pursue what is likely to be a premature, unnecessary, an d extremely costly change from its longstanding treatment of forest roads as non

- point sources

.

ResponseChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 176 Please refer to Response 13. Refer also to the preamble to today's rule.



# Comment ID 0191

- A1.001.003

Author Name: Garrison, III Carl Organization: Virginia Department of Forestry (VA DF) Issue Category: 16 Responding to the Ninth Circuit Court's decision in NEDC vs. Brown by requiring a NPDES permit for logging roads would have created an unnecessary cost burden for both landowners and government. Given that forestry best management practices are wide ly used and that water quality from forested landscapes is already consistently higher than other land uses these additional costs are not defensible from any standpoint.

Response Please refer to Response 13. Refer also to the preamble to today's rule.



# Comment ID 0192

- A1.001.00 3

Author Name: Casey Linda Organization: Alabama Forestry Commission (AL FC) Issue Category: 16 Responding to the Ninth Circuit Court's decision in NEDC vs. Brown by requiring a NPDES permit for logging roads would have created an unnecessary cost burd en for both landowners and government. Given that forestry best management practices are widely used and that water quality from forested landscapes is already consistently higher than other land uses fhese additional costs ar e not defensible from any stan dpoint.

Response Please refer to Response 13. Refer also to the preamble to today's rule.



# Comment ID 0196

- A1.001.003

Author Name: Dye Charles Organization: West Virginia Division of Forestry (WVDOF) Issue Category: 16 Responding to the Ninth Circuit Court's decision in NEDC vs. Brown by requiring a NPDES permit for logging roads would have created an unnecessary cost burden for both landowners and government. Given that forestry best management practices are wide ly used and that water quality from forested landscapes is already consistently higher than other land uses these additional costs are not defensible from any standpoint.

ResponseChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 177 Please refer to Response 13. Refer also to the preamble to today's rule.



# Comment ID 0199

- A1.001.004

Author Name: Owen Wib Organization: North Carolina Department of Agriculture and Consumer Services (NC DACS) Issue Category: 16 In that regard, we encourage the USEP A to pursue flexible management measures and other performance

- based, non

- regulatory approaches of implementing best management practices (BMPs) to manage stormwater runoff from forest roads and other landdisturbing practices that are directly associated with silvicultural activities.

Response Please refer to Response 13.



# Comment ID 0199

- A2.001.007

Author Name: Owen Wib Organization: North Carolina Department of Agriculture and Consumer Services (NC DACS) Issue Category: 16 Noteworthy in the Notice of Intent are detailed descriptions of how various federal land management agencies inventory, manage, and track the usage of roads on their lands. While we applaud those federal agencies for their work on this matter, there can be no expectation
that non

- federal forest owners undertake such a similar inventory of thei r roads. Such an impractical requirement to inventory and report on the extent of forest roads by each forest property owner in the United States would overwhelm the USEP A or its delegated state agency with data and information that frankly would be oflit tle value; while at the same time could be construed as de

- facto permitting or undue property encumbrance. In addition, the costs to our nation's forest owners for inventorying their roads would unquestio nably drive
more conversion of forest lands to other non

- forest land uses, as property owners would continue to be "penalized by policy" for their
intent to sustain the forests of the United States.

Response Please refer to Response 13.



# Comment ID 0203

- A1.001.006

Author Name: Partin Tom Organizati on: American Forest Resource Council (AFRC) Issue Category: 16 Focusing on an issue about which AFRC members have expressed concern, AFRC asks that EPA assure that the clarifications made in the rule are sufficiently broad to resolve the issues of regulation of silvicultural sources generally, not just forest roads or logging roads. For example, there is a distinct difference between log storage facilities and log storage on a harvest site. Specifically, w e suggest EPA reiterate the interpretations it set forth in issuing the 1995 Multi

- Sector General Permit for Stormw ater Discharges Associated withChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 178 Industrial Activity, in which it made clear that:

Discharges from nonpoint source silvicultural activities, including harvesting operations . . . are not required to be covered. It is EPA's determination [that] harvesting activities include: the felling, skidding, preparation (e.g. delimbing and trimming), loading and initial transport of forest products from an active harvest site. . . . EPA also interprets the definition of harvesting operations to include incidental stacking and temporary storage of harvested timber on the harvest site prior to its initial transport to either an intermediate storage area or other processing site. EPA considers this activity to be an inherent part of harvesting operations.

60 Fed. Reg. 50804, 50835 (1995).

This would promote regulatory clarity and avoid confusion. EPA should explicitly state that (i) all silvicultural nonpoint source activities listed in 40 C.F.R. § 122.27(b), including timber harvesting, are not industrial activities; and (ii) that incidental log stacking, sorting, and/or storage that may occur at an active timber harvesting site does not transform tha t timber harvesting into an industrial activity.

Response Please refer to Response 9 and Response 10. Refer also to Response 7, Response 8, Response 12, Response 13, and the preamble to today's rule.



# Comment ID 0208

- A1.001.006

Author Name: Robe rtson Alan Organization: Pfalzerwald Tree Farm Issue Category: 16 An additional regulation on family forest owners, such as the requirement of an NPDES permit for stormwater discharges from f orest roads would be costly for family forest owners, like myself, and it would probably mean lowering my standards for stormwater control and hurt attempts to control invasive species infestations. As a practicing professional civil engineer and facilities mana ger I have dealt repeatedly with the NPDES permitting system and it is not the appropriate system to use to regulate forestry practices, or road and trail systems in the United States. Carrying this bureaucracy over into the working forest would definitely result in major e conomic loss to landowners, the forest harvesting industry, and the wood products industry. In fact, this appears to be the reasoning behind the original lawsuit by the environmental group instigating the lawsuit.

Response Please refer to Response 13.



# Comment ID 0209

- A1.001.006

A uthor Name: Qualman Robert Organization: Qualman Tree Farm Issue Category: 16Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 179 An additional regulation on family forest owners, such as the requirement of an NPDES permit for stormwater discharges from f orest roads would be costly for family forest owners, like myself, and it would make it difficult for me to act quickly on my land to prevent things like fire and invasive species infestations. I work at a Civil Engineering firm and one of my jobs is to create Stormw ater Pollution Prevention Plans (SWPPP's) in order to obtain an NPDES General Permit for utility projects where the dist urbed area is over 1 acre. Our minimum fee is $5,000 to create this plan. As a Tree Farmer a cost of this amount would literally put most of us out of busin ess. Our current timber sale is for 132 acres. A SWPPP of that size would cost $10,000 or more for a Tree Farmer and require construction of numerous water holding structures at a large cost. SWPPP's can only be prepared by a licensed Professional Engineer or Landsc ape architect so landowner's would literally not be able to sell timber because the SWPPP cost would be too large.

Response Please refer to Response 13.



# Comment ID 0210

- A1.001.006

Author Name: Hulka Bryan Organization: Slade Creek LLC Issue Category: 16 An additional regulation on family forest owners, such as the requirement of an NPDES permit for stormwater discharges from f orest roads would be costly for family forest owners, like myself. The roads on our tree farm have been established for decades, are stabilized with vegetation, and pose no threat to water quality. To go back and permit these roads would be a bureaucratic e xercise that would add unnecessary cost in resources that would be better spent growing trees.

Response
Please refer to Response 13.



# Comment ID 0215

- A1.001.006

Author Name: ZumBahlen Bruce Organization: Z Acres Tree Farm Issue Category: 16 An additional regulation on family forest owners, such as the requirement of an NPDES permit for storm water discharges from forest roads would just cost more for certified family forest owners, like my self and it would make it difficult for me to justify continued ownership in the face of escalating property taxes.

Response Please refer to Response 13.



# Comment ID 0216.001.003Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 180 Author Name: Mundt L. Organization: Issue Category: 16 Additional permits requirements are unnecessary, redundant, and burdensome. Additional costs and regulations are unwelcome.

Response Please refer to Response 13.



# Comment ID 0217.001.002

Author Name: Doggett Coleman Organization: Doggett Tree Farms Issue Category: 16 I am very concerned that more expensive and time

- consuming Federal Permits will be required on our Family Tree Farms. I have seen several estimates of the substantial cost that such regulations would add to logging. Already, the business of Tree Farming i s becoming marginally profitable with falling product demand and stumpage prices. If such a permit system is added to our already burden some regulations (Pesticides, Rare and Endangered Spp, Property and Income Taxes., etc.) I think that our only option wil l be to sell our properties, some of which have been in our family for over 100 years, and move our funds into more profitable ventures. I hop e to never have to resort to such a course of action.

Response Please refer to Response 13.



# Comment ID 0219

- A2.001.003

Author Name: Covar Zak Organization: Texas Commission on Environmental Quality (TX CEQ) Issue Category: 16 The Notice of Proposed Revisions indicates that EPA did not intend logging roads to be regulated as industrial facilities and that the revised language is to clarify that intent. However, the notice also indicates that EPA believes stormwater discharges from f orest roads, including logging roads, should be evaluated under section 402(p)(6) of the Clean Water Act. EPA indicates th at this section allows for a broad range of flexible approaches that may be better suited to address the complexity of forest road ownership, management , and use. The TCEQ reiterates its comment made on EPA's Notice of Intent To Revise Stormwater Regulatio ns 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 which was published in the May 23, 2012 Federal Register. It appears that the broad category of forest roads would not include mechanisms for conveying stormwater to a point of discharge. Any impacts which may be attributed to forest roads are more appropriately addressed under the Clean Water Act Section 319, Nonpo int Source Management Programs. The TCEQ requests that EPA use non

- regulatory approaches to the maximum extent possible in addressing water quality impacts from forest roads.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 181 Response Please refer to Response 13.



# Comment ID 0219

- A2.001.005

Author Name: Covar Zak Organization: Texas Commission on Environmental Quality (TX CEQ) Issue Category: 16 EPA indicated in the previously published Notice of Intent To Revise Stormwater Regulations To Specify That an NPDES Permit I s Not Required for Stormwater Discharges From Logging Roads and To Seek Comment on Approaches for Addressing Water Quality Impacts From Forest Road Discharges (May 23, 2012) that it recognizes a "one

- size

- fitsall" approach may not be appropriate for addressing
forest roads a cross the numerous and different situations which exist in the various states. In comments on the Notice of Intent, the TCEQ noted that EPA's review of their ATTAINS database revealed that logging roads were identified as a specific impairment s ource in on ly 0.003 percent of impaired rivers and streams and 0.0005 percent of impaired lakes, reservoirs and ponds compared to silvic ulture activities which are among the top twelve probable sources of impairment for rivers, streams and coastal shorelines. The dis parity in the percent of impairments from logging, versus the identification of logging as a probable source appears to indicate that water quality impacts from these activities may be extremely localized. Further, it is stated in the Notice of Intent that "[T]here is evidence that the majority of the water quality impacts caused by discharges from forest roads can be attributed to a relatively small subset o f forest roads and often a small portion of those roads." The TCEQ continues to strongly encourage E PA to evaluate sufficient data to determine whether forest roads pose a threat to water quality prior to taking any action on this issue. If local impacts are identified , EPA is strongly encouraged to address these impacts with the applicable states rather than attempting to impose a nation

- wide approach.

Response Please refer to Response 12 and Response 13.



# Comment ID 0220

- A1.001.006

Author Name: Lange Walter Organization: Lange Tree Farm Issue Category: 16 An additional regulation on family forest owners, such as the requirement of an NPDES permit for storm water discharges from forest roads would be costly for family forest owners like me, and it would make it difficult for me to act quickly on my land to pr event things
like fire and invasiv e species infestations. The burden of losing all my Ash trees to the Emerald Ash Borer is enough. I do not need to deal with more regulations. I am sure you know about the Asian Long Horned Beetle.

Response Please refer to Response 13.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 182 

# Comment ID 0232

- A1.001.006

Author Name: Wright Vance Organization: Wright Forestry LLC Issue Category: 16 An additional regulation on family forest owners, such as the requirement of an NPDES permit for stormwater discharges from f orest roads would be costly for family forest owners, like myself, and it would make it difficult for me to act quickly on my land to prevent things like fire and invasive species infestations. My timber values would be greatly reduced because costs for permits are expensive making smaller timber tracts worthless, which would cause less diversity in forest management. Tract sizes would have to increase to justify management costs. This would cause land values to fall or land use to change.

Response Please refer to Response 13. Refer also to the preamble to today's rule.



# Comment ID 0234

- A1.001.006

Author Name: Martin Tom Organization: American Forest Foundation (AFF) Issue Category: 16 Threats to Water Quality Cannot Be Solved by Regulations

The decision by the Ninth Circuit Court to regulate forest roads as point sources of pollution sends the wrong message about the threats to water quality in our country. The real threats to clean water from family

‐ owned forests are not from owners who do not implement BMP's or from owners who produce runoff from logging roads. The real threats to water quality protection on family f orests are the pressures families face from phenomena outside their control

- the developer offering $20,000 an acre to convert their land to condos, the estate tax bill weighing on children that forces them to sell off their land, or the catastrophic wildfi re or hurricane that destroys their stream buffers. These threats can't be solved with additional clean water regulations. To best address the threats, we need t o give family forest owners the tools, policies, and strong markets that encourage them to keep their forests as forests.

Ultimately, additional regulations on family forest owners, such as the requirement of an NPDES permit for stormwater dischar ges from forest roads, could place an unnecessary burden on family forest owners with implications for forest health and economic viability. A lengthy, bureaucratic permit process could delay time

- sensitive forest management activities, such as invasive species removal or fire prevention. A permitting process could also add costs to the already strapped fa mily forest owner. Tree farming is already very

cost

- intensive, and families often generate income only once every few decades, if at all. A new permitting process would add cost s as landowners work to keep their forests healthy with little financial retur n. Tree Farmers struggle every day to keep their land healthy and keep it a forest. With an added permit burden, more owners will find it difficult to hold on to their forest, putting more fo rests - and therefore our clean water supply - at risk.

Response Please refer to Response 12 and Response 13.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 183 

# Comment ID 0239

- A2.001.002

Author Name: Douglas Denico Heather Parent Organization: Maine Department of Environmental Protection and Maine Forest Service (ME DEP and MFS) Issue Category: 16
Cha nging federal regulation to require a NPDES permit for logging roads would have created an unnecessary cost burden for both landowners and government with no discernible environmental benefit, given that forestry BMP's are widely used and that water qualit y in forested landscapes already is consistently higher than other land uses.

Response Please refer to Response 1 and Response 13. Refer also to the preamble to today's rule.



# Comment ID 0239

- A2.001.004

Author Name: Douglas Denico Heather Parent Organization: Maine Department of Environmental Protection and Maine Forest Service (ME DEP and MFS) Issue Category: 16 We believe that increasingly scarce resources (of both the public and private sectors) would be better used on training, tech nical

as sistance, implementation of BMP practices by landowners and regular monitoring of BMP implementation and effectiveness. These activities stand a better chance of maintaining the high water quality Maine's working forests already produce than an increa sed p ermit
burden would.

Response Please refer to Response 13. Refer also to Response 14.



# Comment ID 0240

- A1.001.006

Author Name: Baumhoff Oscar Organization: Baumhoff & Company, LLC Issue Category: 16 An additional regulation on family forest owners, such as the requirement of an NPDES permit for stormwater discharges from f orest roads would be costly for family forest owners, like myself, and it would make it difficult for me to act quickly on my land to prevent things like fire and invasive species infestations.

We need forest roads to manage our property and the adjoining State, Federal and other Private Lands need use of the roads th at cross our land. Many of these roads have been in existence for over 100 years, land owners, government agencies like wild land fire fighters and the public utilize these roads. Additional permitting on these roads and any new roads needed in the future will make it "Co st Prohibitive" to continue with the current pro cesses (as described above) we are doing to improve the property, control disease and improve the water quality, let alone maintain stream quality, and we also need to have the ability to make enough profit from our forest
lands to continue what we are cur rently doing. We manage a family owned property that has been in our family since 1935 and as theChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 184 costs to meet with all the regulations continue to increase it is becoming more difficult to manage the lands and more regula tion could prohibit more improve ment projects in the future.

Response Please refer to Response 13. Refer also to Response 12 and Response 15.



# Comment ID 0242

- A1.001.004

Author Name: Garber Richard Organization: Boise Inc. Issue Category: 16 Should the decision by the Ninth Circuit court of appeals in the case of NEDC vs. Brown (2011) stand (a decision that would overturn more than 35 years of national precedent with regard to logging and forest management practices), our company's access to sus tainably managed and economically priced fiber and fuel would be adversely impacted.

Response Please refer to Response 1 and Response 13. Refer also to the preamble to today's rule.



# Comment ID 0247

- A1.001.003

Author Name: Geissler George Organization: Oklahoma Department of Agriculture, Food, and Forestry (OK DAFF) Issue Category: 16 Requiring a NPDES permit for logging roads in response to the Ninth Circuit Court's decision in NEDC vs. Brown would have cre ated a large and unnecessary cost burden for both landowners and government agencies assigned with its enforcement. Given that forestry BMPs are widely accepted and used, and that water quality from forested landscapes is already consistently higher than other land uses,
these additional costs cannot be defended. Oklaho ma's forestry BMP compliance rate currently exceeds 92 percent, and very few water quality problems attributed to forestry activity, including roads, are found during our surveys. The administrative and regul atory demands of a permitting program will result in little or no additional benefits to water quality.

Response Please refer to Response Response 1, Response 12 and Response 13. Refer also to the preamble to today's rule.



# Comment ID 0248

- A1.001.004

Author Name: Poling Jan Organization: American Forest & Paper Association (AF&PA) Issue Category: 16 Second, if EPA continues with this rulemaking process, to avoid further confusion and regulatory uncertainty, AF&PA proposes thatChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 185 EPA also explicitly clarify in the preamble that logging/harv esting activities are not industrial activities. EPA should state explicitly that the silvicultural nonpoint source activities listed in 40 C.F.R. § 122.27(b), including timber harvesting operations, are not industrial activities, and that incidental log s tacking, sorting, and/or storage that may occur at an active timber harvesting site do not transform timber harvesting into an industrial activity. This would be consistent with and support the existing regulatory definition o f silviculture point source "l og sorting and log storage facilities", which is limited only to facilities whose discharges "result from the holding of unprocessed wood, for example, logs or roundwood with bark or after removal of bark held in self

- contained bodies of water (mill ponds or log ponds) or stored on land where water is applied intentionally on the logs (wet decking)" (40 CFR 122.27(b)(3)) (emphas is added). EPA also could reiterate the interpretations it set forth in issuing the 1995 Multi

- Sector General Permit for Stormwater Discharges Associated with Industrial Activity, in which it made clear that:

Discharges from nonpoint source silvicultural activities, including harvesting operations . . . are not required to be covere d. It is EPA's determination [that] harvesting activities include: the felling, skidding, preparation (e.g. delimbing and trimming), loading and initial transport of forest products from an active harvest site . . .EPA also interprets the definition of harvesting operations to include incidental stacking a nd temporary storage of harvested timber on the harvest site prior to its initial transport to either an intermediate storage area or other processing site. EPA considers this activity to be an inherent part of harvesting operations.

60 Fed. Reg. 50804, 50835 (1995). These clarifications would solidify the appropriate scope of Phase I regulations as applied to
silviculture.

Finally, the preamble to the Proposed Rule refers to "stormwater discharges" that could be subject to Phase II regulation. Gi ven the current dispute in the NEDC v. Brown on whether forest roads are point or nonpoint sources, and given recent Supreme Court pr ecedent interpreting the term "discharge," S. D. Warren Co. v. Maine Board of Environmental Protection, 547 U.S. 370 (2006), AF &PA recommends that EPA make clear that Phase II regulation under Section 402(p)(6) is limited to point source discharges of stor mwater.

Response Please refer to Response 7 and Response 8. Refer also to Response 6, Response 9, and the preamble to toda y's rule.



# Comment ID 0250

- A1.001.003

Author Name: Daugherty Peter Organization: Oregon Department of Forestry (OR DF) Issue Category: 16 The proposed revision removes some of the uncertainty created by the Ninth Circuit Court's May 2011 decision in NEDC vs. Decker. If "logging roads" require a permit, then Oregon and other similarly situated states must overlay their long

- standing programs for regulating forest road stormwater runoff with a permitting program - a program that the EPA is not required to establish, and has expressly chosen not to establish. This permit program would only apply to a subset of forest roads, those that directly acce ss a logging unit. This subset of roads would change every year, creating the administrative challenge of ma naging two overlapping regulatory frameworks. This approach would create an unnecessary cost burden for both landowners and government. Given that Oregon has established a comprehensive forestry BMP program and that forested landscapes have higher water quality than other land uses, these additional costs are not defensible from any standpoint.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 186 Response
Please refer to Response 1 and Response 5. Refer also to Response 12 and Response 13.



# Comment ID 0252

- A1.001.005

Author Name: Brandt Wayne Organization: Minnesota Forest Industries (MFI) Issue Category: 16 If EPA processds to act without awaiting the Supreme Court's opinion, MFI recommends that the EPA assure the clarifications m ade in the rule are sufficiently broad to resolve the issues o f regulation of silvicultural sources, not just forest roads or logging roads. For example, there is a distinct difference between log storage facilities and log storage on a harvest site. Specifically, we su ggest EPA reiterate the interpretations it set f orth in issuing the 1995 Multi

- Sector General Permit for Stormwater Discharges Associated with Industrial Activity, in which it made clear that:

Discharges from nonpoint source silvicultural activities, including harvesting operations . . . are not required to be covered. It is EPA's determination [that] harvesting activities include: the felling, skidding, preparation (e.g. delimbing and trimming), loading and initial transport of forest products from an active harvest site. . . . EPA also interprets t he definition of harvesting operations to include incidental stacking and temporary storage of harvested timber on the harvest site prior to its initial transport to either an intermediate storage area or other processing site. EPA considers this activity to be an inherent part of harvesting operations.

60 Fed. Reg. 50804, 50835 (1995).

This would promote regulatory clarity and avoid confusion. EPA should explicitly state that (i) all silvicultural nonpoint s ource activities listed in 40 C.F.R. § 122.27(b), including timber harvesting, are not industrial activities; and (ii) that incidental log stacking, sorting, and/or storage that may occur at an active timber harvesting site does not transform that timber harvesting into an industrial activity.

Response
Please refer to Response 1, Response 7, Response 8, and Response 11. Refer also to Response 6, Response 9, and the preamble to today's
rule.



# Comment ID 0255

- A1.001.006

Author Name: Moon C. Organization: Issue Category: 16
An additional regulation on private forest owners, such as the requirement of an NPDES permit for stormwater discharges from for est roads would be costly for private forest owners and make it difficult for me to help them act quickly to prevent things like fi re and invasive species infestations.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 187 Response Please refer to Response 13.



# Comment ID 0256

- A1.001.006

Author Name: Bain J.P. Organization: Issue Category: 16 An additional regulation on family forest owners, such as the requirement of an NPDES permit for stormwater discharges from f orest roads would be costly for family forest owners, like myself, and it would make it difficult for me to act quickly on my land to prevent things like fire and invasive species infestations. I have seen how additional expenses, such as this one, result in reduced financial returns for forest landowners and can force them to convert forest land to other uses, such as residential dev elopment. I hope that you will agree that runoff from residential housing creates as much, if not more, of a problem than forest road runoff.

Response Please refer to Response 13. Refer also to the preamble to the final rule.



# Comment ID 0257

- A1.001.006

Author Name: Saloom Salem Organization: Saloom Properties, LLC Issue Category: 16 An additional regulation on family forest owners, such as the requirement of an NPDES permit for storm water discharges from forest roads would be costly for family forest owners, like myself, and it would make it difficult for me to act quickly on my land to prevent things like fire and invasive species infestations. If a permitting is required, the burden will be on industry as well as pr ivate landowners. The burden would also be an insurmountable expense of time and money for the federal government and a gencies where those extra costs are unnecessary. That burden would hamper the entire forestry industry in Alabama making it a burden for those forest l andowners who may see that this is too much of a problem to adequately and effectively do good silvicultu ral management. This proposed permitting will do more harm than good. Let the states regulate forest roads through our own systems that have been effective for
decades.

Response
Please refer to Response 1 and Response 13. Refer also to the preamble to the final rule.



# Comment ID 0261

- A1.001.006

Author Name: Imbergamo Bill Organization: Federal Forest Resource Coalition (FFRC) Issue Category: 16 Focusing on an issue about which FFRC members have expressed concern, we ask that EPA assure that the clarifications made in theChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 188 rule are sufficiently broad to resolve the issues of regulation of silvicultural sources generally, not just forest roads or lo gging roads. For example, there is a distinct difference between log storage facilities and log storage on a harvest site. Specifically, we su ggest EPA reiterate the interpretations it set forth in issuing the 1995 Multi

- Sector General Permit for Stormwate r Discharges Associated with Industrial Activity, in which it made clear that:

Discharges from nonpoint source silvicultural activities, including harvesting operations . . . are not required to be covere d. It is EPA's determination [that] harvesting act ivities include: the felling, skidding, preparation (e.g. delimbing and trimming), loading and initial transport of forest products from an active harvest site. . . . EPA also interprets the definition of harvesting operations t o include incidental stacking and temporary storage of harvested timber on the harvest site prior to its initial transport to either an intermediate storage area or other processing site. EPA considers this activity to be an inherent part of harvesting operations.

60 Fed. Reg. 5080 4, 50835 (1995).

This would promote regulatory clarity and avoid confusion. EPA should explicitly state that (i) all silvicultural nonpoint so urce activities listed in 40 C.F.R. § 122.27(b), including timber harvesting, are not industrial activities; and (ii) that incidental log stacking, sorting, and/or storage that may occur at an active timber harvesting site does not transform that timber harvesting into an industria l activity.

Response Please refer to Response 7 and Response 8. Refer also to Res ponse 6, Response 9, Response 11, and the preamble to today's rule.



# Comment ID 0263

- A1.001.006

Author Name: Schmidt David Organization: Schmidt Family Forest LLC Issue Category: 16 The additional requirement of an NPDES permit for stormwater discharges from forest roads would be very costly in time and money for our timberland property. Our family is proud of the excellent job we are doing with stormwater management under our current Oregon Forest Practices Act, without the requirement of a N PDES permit.

Response Please refer to Response 13. Refer also to Response 15.



# Comment ID 0264

- A1.001.006

Author Name: Magruder John Organization: Magruder Family Tree Farm Issue Category: 16 Any additional regulations on family forest owners, such as the requirement of an NPDES permit for stormwater discharges from forest roads would be costly for family forest owners, like me, and it would make it difficult for me to act quickly on my land to p revent things like fire and invasive species infes tations.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 189 Furthermore, in this fast paced world, timber markets can be very difficult to time. If onerous permits were required then th ousands of dollars could be lost plus the added costs of getting the permit would lower the profits further from a timber sale. Add itional regulation costs will also make it harder and harder for me to keep the land as a Tree Farm. Local property taxes continue to increase a nd beginning January 1st, capital gains tax rates are also scheduled to go up. From a profitability stand point, increasing taxes and costly regulations only entice me to develop the land for higher and better uses such as residential property.

Response Please refer to Response 13. Refer also to the preamble to today's rule.



# Comment ID 0265

- A1.001.006

Author Name: Pierce Josiah Organization: The Pierce Place Issue Category: 16 An additional regulation on family forest owners, such as the requirement of an NPDES permit for stormwater discharges from f orest roads would be costly for family forest owne rs, like myself, and it would make it difficult for me to act quickly on my land to prevent things like fire and invasive species infestations. We also have blowdowns from time to time. When they occur in the warmer weather we have a short period of time to get white pine out before it blue stains and loses its economic value. We have to go in and get it. A permitting process would not only deprive us of our income it would leave our woods clogged with down trees. This presents a fire danger and is a safety issue as fire and rescue would not be able to get in if someone got lost or injured in the woods.

Response Please refer to Response 1 and Response 13. Refer also to the preamble to today's rule.



# Comment ID 0266

- A1.001.009

Author Name: Goergen Jr. Michael Organization: Society of American Foresters (SAF) Issue Category: 16 Actions that create management certainty and avoid undue economic burdens help keep managed forest competitive internationall y and
with alternative land

- use activities.

Response Please refer to Response 13. Refer also to Response 4, Response 5, and the preamble to the final rule.



# Comment ID 0273

- A1.001.005

Author Name: Snyder WilliamChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 190 Organization: State of California Natural Resources Agency Issue Category: 16 Further CAL FIRE believes given: (1) the number of miels of logging roads, (2) the number of these roads with multiple

- uses, (3) the potential number of discharge points to be regulated individually, and (4) the problem of determining which road drainage s tructures discharge into groundcover and which discharge into the waters of the United States, that a NPDES permit approach to regulati ng logging road runoff would be a costly approach that would undermine the existing effective and efficient approaches cu rrently in use that are regulating logging road runoff in California. For example, millions of dollars of public and private money are expended yearly on upgrading or decommissioning (i.e., closing or removing) problem logging roads and stream crossings. A new requirement for NPDES permits, requiring both a considerable amount of landowner funds and resource professional time, will serve as a disincentive to continuing this valuable work that is improving both water quality and habitats for native and ana dromous salmonids.

Response Please refer to Response 1 and Response 13.



# Comment ID 0277

- A1.001.003

Author Name: O'Neill William Organization: Michigan Department of Natural Resources (MDNR) Issue Category: 16 Changing federal regulation to require a NPDES permit for logging roads would have created an unnecessary cost burden for both landowners and government. Giveen that forestry best management practices are widely used and that water quality from foreste d landscapes is already consistentl y higher than other land uses, these additional costs are not defensible from any standpoint.

Response Please refer to Response 1 and Response 13. Refer also to Response 15 and to the preamble to the final rule.Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads



# Issue Category 17: Assertions that the EPA Should Provide Funding to States

Page 2-19 1

Response to Public Comments

Revisions to Stormwater Regulations to Clarif y that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads

November 30, 2012

Docket #: EPA

- HQ -OW- 2012

- 0195Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 191 

# 17

. ASSERTIONS THAT THE EPA SHOULD PROVIDE FUNDING TO STATES

Comment ID 0199

- A2.001.005

Author Name: Owen Wib Organization: North Carolina Department of Agriculture and Consumer Services (NC DACS) Issue Category: 17 The costs associated with the management of the overall water quality and BMP program within the N.C. Forest Service can be roughly
evaluated for the State Fiscal Year 2010

- 2011 by taking the number of hours dedicated to water quality and BMP program delivery (27 ,700 as noted earlier), and applying a conservative p ersonnel pay rate to those hours ($25/hour; not including operating costs or fringe benefits). The resulting cost of $692,500 does not account for individual 319

- Grants or other grants awarded to the N.C. Forest Service during that time which were specific ally used for water quality, BMP, and nonpoint source project implementation.

Given the flexibility that the USEPA has in administering stormwater discharges through the NPDES, we encourage a broader application of the USEP A's authorities described within Section 319 of the Clean Water Act to provide funding assistance to state for estry agencies in the ongoing development and monitoring of silvicultural and forest road BMPs.

Since 2004, the N.C. Forest Service has produced a "Year in Review" brochure which summarizes water quality and nonpoint sour ce program accomplishments and su ccess stories which have directly resulted from the availability of Section 319 grants (and other grants) to the N.C. Forest Service. Enhanced monitoring of forest roads, and other forestry

- related activities, could be possible through additional, recurrin g funding allocations to the N.C. Forest Service, either through the Section 319

- Grant Program or other funding

sources.

Response Please refer to Response 14. Refer also to Response 15.Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 

# Issue Category 18 : References, Descriptions, and Other Information Received

Pages 2 -191 to 2 -235

Response to Public Co mments

Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads

November 30, 2012

Docket #: EPA

- HQ -OW- 2012

- 0195Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 192 

# 18

. REFERENCES, DESCRIPTIONS, AND OTHER INFORMA TION RECEIVED

Comment ID 0185

- A1.001.001

Author Name: Dessecker Dan Organization: Ruffed Grouse Society Issue Category: 18 The Ruffed Grouse Society appreciates the opportunity to comment on the Environmental Protection Agency's (EPA) proposal to c larify that a National Pollutant Discharge Elimination System (NPDES) permit is not required for stormwater discharges from logging roads as outlined in the EPA's 4 September 2012 Federal Register release.

Response Please refer to Response 15. Refer also to Response 1.



# Comment ID 0185

- A1.001.003

Author Name: Dessecker Dan Organization: Ruffed Grouse Society Issue Category: 18 Wildlife dependent upon the young forest habitats created today only through active forest management are experiencing precip itous population declines throughout much of the eastern United States. Birds of shrub

- dominated or young forest habitats in the ea stern United States that are currently federally listed under the Endangered Species Act include the endangered Kirtland's warbler (Dendroica kirtlandii) and black

- capped vireo (Vireo atricapilla) and the threatened Florida scrub jay (Aphelocoma coerulesce ns).

The ruffed grouse (Bonasa umbellus), bobwhite quail (Colinus virginianus) and American woodcock (Scolopax minor) are importan t game birds throughout much of the eastern United States. These three species are experiencing population declines througho ut significant portions of this region (Dimmick et al. 2002, Dessecker and McAuley 2004, Cooper and Parker 2009).

Breeding Bird Survey data (1966 - 2010) document that 53% of the bird species characteristic of shrub

- dominated or young forest
habitats in the eastern United States are experiencing population declines, whereas only 29% are increasing. Conversely, within this same landscape and interval, 58% of the bird species characteristic of mature forest habitats are experiencing population inc reases, wh ereas only 29% are declining.

Approximately 70% of the forestland in the eastern United States is controlled by nonindustrial private forest landowners.

Response Please refer to Response 15. Refer also to Response 12.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 193 

# Comment ID 0186.001.001

Author Name: Anonymous Anonymous Organization: Issue Category: 18 The intent of the National Pollution Discharge Elimination System was to eliminate, to the extent practicably possible, disch arge of sediment and other pollutants into streams, rivers, and lakes. The Clean Water Act establishes specific guidelines that the EPA must follow in determining how best to implement the act, and uses specific language in order to specify what discharges must be i ncluded in the agency's regulatory schemes.

Res ponse Please refer to Response 15. Refer also to the preamble of today's rule.



# Comment ID 0187

- A1.001.002

Author Name: Tenny David Organization: National Alliance of Forest Owners (NAFO) Issue Category: 18 As set forth in the Notice, both EPA's proposed rulemaking and the pending U.S. Supreme Court cases spring from the Ninth Cir cuit's decision in NEDC v. Brown, 640 F.3d 1063 (9th Cir. 2011). The U.S. Supreme Court granted certiorari in response to two petit ions filed by the State of Oregon and forest products industry parties (U.S. Nos. 11

- 338 and 11

- 347). EPA is concurrently pursuing a regulatory response to the Ninth Circuit decision through the Notice. The Solicitor General filed an amicus brief to the Co urt in support of Petitioners on September 4, 2012. In that brief, the Solicitor General discusses the Notice, the legal issues implicated by b oth the Notice and the Ninth Circuit decision, as well as the effect on the litigation of any EPA final action on the Notice.

Response Please refer to Response 15. Refer also to Response 5.



# Comment ID 0188

- A1.001.001

Author Name: Koehn Steven Organization: Maryland Department of Natural Resources (MD DNR) Issue Category: 18 The Maryland DNR Forest Service is responsible for arranging forest harvest operator Best Management Practice (BMP) training required for Maryland's sediment and erosion control regulations. We provide voluntary technical assistance in implementing f orest harvesting BMPs and peri odically assess statewide BMP implementation rates and effectiveness of the State's forest harvesting practices.

Response Please refer to Response 15.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 194 

# Comment ID 0189

- A1.001.001

Author Name: Morgan Charlie Organization: Mississippi Forestry Commission (MS FC) Issue Category: 18 The Mississippi Forestry Commission is responsible for wildland fire protection on 19 8 million acres, providing management a ssistance
and forest information to non

- industrial landowners and managing 480,000 acres of 16th School Trust Lands.

Response Please refer to Response 15.



# Comment ID 0190

- A1.001.001

Author Name: Brian S. Keiling Howard M. Persinger, Jr. Organization: West Virginia Land and Mineral Owners Association (WVLMOA) Issue Category: 18 On behalf of the West Virginia Land and Mineral Owners Association (WVLMOA), please consider the following comments in response to the "Notice of Intent to Revise Stormwater Regulations to Specify that an NPDES Permit is not Required for Stormw ater
Dischar ges from Logging Roads and to Seek Comments on Approaches for Addressing Water Quality Impacts from Forest Road Discharges", published by the Environmental Protection Agency (EPA) at 77 Fed. Reg. 30473 (May 23, 2012).

The WVLMOA represents concerned West Virginians and is a collective voice to protect and advance the interests of the land and
mineral owners within our state.

Response Please refer to Response 15.



# Comment ID 0191

- A1.001.001

Author Name: Garrison, III Carl Organization: Virginia Department of Forestry (VA DF) Issue Category: 18 The Virginia Department of Forestry is responsible for oversight and enforcement of the silvicultural water quality program i n the Commonwealth of Virginia.

Response Please refer to Response 15.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 195 

# C omment ID 0192

- A1.001.001

Author Name: Casey Linda Organization: Alabama Forestry Commission (AL FC) Issue Category: 18 The Alabama Forestry Commission is committed to protecting and sustaining our forest resources using professionally applied stewardship principles and education. We will ensure Alabama's forests contribute to abundant timber and wildlife, clean air and water, and a healthy economy.

Response Please refer to Response 15.



# Comment ID 0193

- A1.001.001

Author Name: Partin Tom Organization: American Forest Resource Council (AFRC) Issue Category: 18 This is a request by the American Forest Resource Council and its members for a suspension of the public comment period on a proposed revision to 40 CFR 122.26(b)(14) published in the Federal Register September 4, 2012.

AFRC is a nonprofit organization organized under the laws of the State of Oregon. It represents over 50 forest products manuf acturers throughout the West, primarily in Washington, Oregon, California, Idaho and Mon tana. Its members depend upon timber harvested from public lands as a source of supply. Many are direct purchasers of federal timber and as such will be directly affected by any changes in how forest roads accessing that timber are regulated. Moreover, its employees live and work near federal forest lands and utilize forest
roads for recreation and to secure firewood.

Response Please refer to Response 2. Refer also to Response 15.



# Comment ID 0194

- A1.001.001

Author Name: O'Rourke, Sr. Thomas Organization: Yurok Tribe Issue Category: 18 The Yurok Tribe appreciates the opportunity to review and provide comments on the Notice of Proposed Revisions to Stormwater Regulations to Clarify that an NPDES Permit is Not Required for Stormwater Discharges from Logging Roads.

Response Please refer to Response 1 and Response 15.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 196 

# Comment ID 0194

- A1.001.005

Author Name: O'Rourke, Sr. Thomas Organization: Yurok Tribe Issue Category: 18 Thank you for the opportunity to provide comments on the proposed revisions clarifying NPDES permits are not required for log ging roads. We look forward to continuing to work with you and applicable staff in the future on this very important issue. If you have any questions or concerns please feel free to contact Ken Fetcho, Assistant Director, Yurok Tribe Environmental Program at 707

- 954

- 1523 or at kfetcho@yuroktribe.nsn.us.

Response Please refer to Response 1. Refer also to Response 13 and Response 1 5.



# Comment ID 0195

- A1.001.004

Author Name: Leonard Young Ted Sturdevant Organization: State of Washington Department of Natural Resources and State of Washington Department of Ecology (WA DNR and Ecology) Issue Category: 18 Thank you for the Seattle listening session that you convened to hear from stakeholders and also the states. The information that was shared at the meeting and the information that was forwarded to EPA by Ecology and DNR after the meeting should prove help ful in this

process.

Thank you for your time and consideration of these issues. We look forward to further discussion with EPA on the Phase II reg ulatory approach. Please contact Stephen Bernath from the Washington State Department of Ecology at (360)
40 7- 6459/stephen.bernath@ecy.wa.gov or Darin Cramer from the Washington State Department of Natural Resources at (360)
902

- 1088/ darin.cramer@dnr.wa.gov if you have any questions.

Response Please refer to Response 1. Refer also to Response 13 and Response 15.



# Comment ID 0196

- A1.001.001

Author Name: Dye Charles Organization: West Virginia Division of Forestry (WVDOF) Issue Category: 18 The West Virginia Division of Forestry (WVDOF) is responsible for implementing the requirements of West Virginia code §19

- 1B, "Sediment Control During Commercial Timber Harvesting Operations", also known by its short title, the Logging Sediment Contro l Act (LSCA). This state law which requires Silvicultural BMP's is one of the most stringent in the nation. I t gives the WVDOF the authorityChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 197 to be notified of timbering operations, inspect timbering operations, and take both civil and criminal action against violato rs.

Response Please refer to Response 15.



# Comment ID 0197

- A1.001.001

Author Name: Bonnet Michelle Organization: Alaska Department of Environmental Conservation (AK DEC) Issue Category: 18 The Alaska Department of Environmental Conservation (DEC) is providing the following comments in response to the September 4, 2012 Federal Register "Notic e of Proposed Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads."

Response Please refer to Response 15.



# Comment ID 0198

- A1.001.001

Author Name: Dructor Daniel Organization: American Loggers Council (ALC) Issue Category: 18 The American Loggers Council is pleased to offer the following comments to the above referenced Notice of Proposed Rulemaking ("Proposed Rule") published by the U.S. Environmental Protection Agency ("EPA") in response to the Ninth Circuit ruling in NEDC v. Brown, 1063 F.3d 1176 (9th Cir. 2011).

The American Loggers Council represents professional timber harvesters across the United States. Our mission includes promoti ng sustainable timber harvesting practices and working with private, federal and industrial timberland owners.

Response Please refer to Response 15.



# Comment ID 0199

- A1.001.001

Author Name: Owen Wib Organization: North Carolina Department of Agriculture and Consumer Services (NC DACS) Issue Category: 18 North Carolina's forest landowners, numbering in excess of 600,000 individuals, are responsible for the stewardship of nearly two

- thirds of the state's 18 million acres of forest land. These family

- owned forests can only be sustained when there is an unambiguous, effective,Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 198 reasonable, and affordable regulatory environment in which to manage, grow, harvest, and renew their forest lands.

Response Please refer to Response 15.



# Comment ID 0199

- A2.001.001

Author Name: Owen Wib Organization: North Carolina Department of Agriculture and Consumer Services (NC DACS) Issue Category: 18 In addition to supporting the enclosed comments of the Southern Group of State Foresters, the North Carolina Forest Service provides the following comments specific to how stormwater runofffrom forest roads and associated forestry BMPs are managed in North
Carolina.

Response Please refer to Response 15.



# Comment ID 0199

- A2.001.008

Author Name: Owen Wib Organization: No rth Carolina Department of Agriculture and Consumer Services (NC DACS) Issue Category: 18 To learn more about the potential financial hardship that NPDES permitting for forest roads would incur, we encourage the US EPA to evaluate a 20II report prepared by two professors from N.C. State University, entitled "Potential Administrative and Economic Impacts ofNPDES Permit Requirements for Forest Roads in the South," available at the following website: http://nafoalliance.org/wp

- content/uploads/Road

- Permit

- Cos ts

- in

- Southl.pdf

Response Please refer to Response 15. Refer also to Response 12 and Response 13.



# Comment ID 0200

- A1.001.001

Author Name: Crawford Cam Organization: South Carolina Forestry Association (SCFA) Issue Category: 18
The South Caroli na Forestry Association is pleased to offer the following comments to the above referenced Notice of Proposed Rulemaking ("Proposed Rule") published by the U.S. Environmental Protection Agency ("EPA") in response to the Ninth Circuit r uling
in NEDC v. Brow n, 1063 F.3d 1176 (91 h Cir. 2011).Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 199 The South Carolina Forestry Association (SCFA) represents the wood and paper products industry. Our mission is to maintain an d secure adoption of local, state, and federal policies that encourage management, utilization, and conservation of forest resources while maintaining or strengthening the pro

- business climate for the wood and paper products industry.

Response Please refer to Response 15.



# Comment ID 0201

- A1.001.001

Author Name: Vandersteen C.A. Organization: The Louisiana Forestry Association (LFA) Issue Category: 18 The Louisiana Forestry Association would appreciate your consideration of our comments to the above referenced Notice of Prop osed Rulemaking ("Proposed Rule") published by the U.S. Environmental Protection Agency ("EPA") in response to the Ninth Circuit ruling in NEDC v. Brown, 1063 F.3d 1176 (9th Cir. 2011)

The Louisiana Forestry Association (LFA) is a not

- for

- profit trade association representing forest landowners, loggers, and the forest industry in Louisiana. The purpose of LFA is to promote healthy, productive forests through the practice of sustainable fore stry. Our foresters and loggers receive training in Best Management Practices and are issues certificates for training and monitored for compliance. LFA supports the American Tree Farm System and Sustainable Forestry Initiative programs to certify that forestla nds are certified to the highest standards of forest sustainability.

Response Please refer to Response 15.



# Comment ID 0202

- A1.001.001

Author Name: Slocum, Jr. Robert Organization: NC Forestry Association (NCFA) Issue Category: 18 The NC Forestry Association is pleased to offer the following comments to the above referenced Notice of Proposed Rulemaki ng ("Proposed Rule") published by the U.S. Environmental Protection Agency ("EPA") in response to the Ninth Circuit ruling in NE DC v. Brown, 1063 F.3d 1176 (9th Cir. 2011).

The NC Forestry Association (NCFA) is a not

- for

- profit conservation organization that "actively promotes healthy, productive forests by supporting the efforts of landowners and forestry

- related businesses and organizations who responsibly manage or use forests. The NCFA seeks to serve its membership through four major programs - Legi slative Affairs, Training for Forestry Professionals, Education and Communications." This association has more than 3,800 members involved in the production of wood and paper products, woo d suppliers, and forest landowners involved in the management and h arvesting of wood. Our members have a vested interest in the outcome of the proposed EPA rule and its effect on landowners, timber harvesters and wood companies. The potential cost of t his ruleChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 200 is significant and will have a direct impact of timber harve sters and landowners.

Response Please refer to Response 15.



# Comment ID 0203

- A1.001.001

Author Name: Partin Tom Organization: American Forest Resource Council (AFRC) Issue Category: 18 The American Forest Resource Council (AFRC) offers the following comments on the above Notice of Proposed Rulemaking.

AFRC is a nonprofit organization organized under the laws of the State of Oregon. It represents over 50 forest products manu facturers throughout the West, primarily in Washington, Oregon, California, Idaho and Montana. Its members depend upon timber harveste d from public lands as a source of supply. Many are direct purchasers of federal timber and as such will be directly affected by a ny changes in how forest roads accessing that timber are regulated. Moreover, its employees live and work near federal forest l ands and
utilize forest roads for recreation and to secure firewood.

Response Please refer to Response 15.



# Comment ID 0203

- A1.001.005

Author Name: Partin Tom Organization: American Forest Resource Council (AFRC) Issue Category: 18 Should EPA decide to act without awaiting the Supreme Court's opinion, AFRC wishes to express its support for the detailed co mment letter submitted by the National Association of Forestland Owners.

Again, please consider AFRC’s comments to incorporate the detailed comments of the National Association of Forestland Owners.

Response Please refer to Response 15. Refer also to the preamble to today's rule.



# Comment ID 0204

- A1.001.001

Author Name: Harrelson, Sr. David Organization: St. Joe Timberland Company of Delaware, LLC Issue Category: 18Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 201 St. Joe Timberland Company is pleased to offer the following comments to the above referenced Notice of Proposed Rulemaking ("Proposed Rule") published by the U.S. Environmental Protection Agency ("EPA") in response to the Ninth Circuit ruling in NEDC v. Brown, 1063 F.3d 1176 (9th Cir. 2011).

St. Joe Timberland Company owns and manages over 500,000 acres of timberland complete with road system that is often intermin gled with county roads.

Response
Please refer to Response 15.



# Comment ID 0205

- A1.001.001

Author Name: Schuler Galen Organization: Green Diamond Resource Company Issue Category: 18 Green Diamond Resource Company ("Green Diamond") is pleased to offer the following comments to the above referenced Notice of Proposed Rulemaking ("Proposed Rule") published by the U.S. Environmental Protection Agency ("EPA") in response to the Ninth
Circu it ruling in NEDC v. Brown, 1063 F.3d 1176 (9th Cir. 2011).

Green Diamond is a family

- owned company established in Washington State 122 years ago. Consistent with its long

- term commitment to responsible forestry, Green Diamond owns and sustainably manage s over 750,000 acres of timberland in California and Washington. Green Diamond has a long history of protecting wildlife, water quality and aquatic resources on its forested lands.

Green Diamond is representative of a forest industry that provides extensive protection for water quality under self

- imposed standards for land stewardship as well as a variety of existing state and federal programs. In 2000, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (the "Services") approved a Gr een Diamond multi

- species habitat conservation plan (HCP) for Endangered Species Act

- listed and unlisted fish and wildlife species on nearly 300,000 acres of timberlands in Washington State. In 2007, the Services approved Green Diamond's Aquatic HCP and Ca ndidate Conservation Agreement with Assurances (the "AHCP") for conservation of listed and unlisted aquatic species on over 384,000 acres of timberland in northern California. Both of these HCPs protect water quality and the aquatic resources and beneficia l uses of waters flowing from Green Diamond timberlands.

In addition to the HCPs, Green Diamond timberlands are managed under comprehensive and demanding forest practices regulations and permitting processes in California and Washington. Furthermore, construction, reconstruction, and maintenance work on each stream crossing is thoroughly regulated in each state. And, in California, Green Diamond is also required to obtain a state water qu ality permit for timber harvests and other forest management activities affecting water quality. All of this has been accomplished without National Pollutant Discharge Elimination System ("NPDES") permitting for forest roads.

Response Please refer to Response 15. Refer also to Response 13.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 202 

# Comment ID 0206

- A1.001.0 01

Author Name: Beardsley Michael Organization: Professional Logging Contractors of Maine (PLCM) Issue Category: 18 The Professional Logging Contractors of Maine submits the following comments in response to the "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 Comments on Approaches for Addressing Water Quality Impacts From Forest Road Discharges" (N01) published by the Environmental protection Ag ency (EPA) at 77 Fed. Reg. 30473 (May 23, 2012). The Professional Logging Contractors of Maine is a

non

- profit 501 (c)(3) trade organization representing logging contractors in the State of Maine.

Response Please refer to Response 15.



# Comment ID 02 06

- A1.001.006

Author Name: Beardsley Michael Organization: Professional Logging Contractors of Maine (PLCM) Issue Category: 18 Thank you for the opportunity to submit initial comments on proposed process. We plan to stay engaged as you proceed with your evaluation and would appreciate inclusion on any stakeholder lists developed for purposes of the evaluation. If we can be of any assistance in answering any questions you may have about our state program, please let us know. Finally, we encourage EPA to schedule a listening session in Maine or in our region.

Response Please refer to Response 1 and Response 15.



# Comment ID 0207

- A1.001.001

Author Name: Hufford Ronald Organization: Texas Forestry Association (TFA) Issue Category: 18 The Texas Forestry Association (TFA) is pleased to offer the following comments to the above referenced Notice of Proposed Rulemaking ("Proposed Rule") published by the U.S. Environmental Protection Agency ("EPA") in response to the Ninth Circuit r uling
in NEDC v. Brown, 1063 F.3d 1176 (9th Cir. 2011).

TFA is a private non

- profit trade association representing 3,000 members who are private forest landowners, consulting foresters, professional loggers, processing mills, and businesses that are dependent upon the economic strength of our East Texas forest s

.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 203 Response Please refer to Response 15.



# Comment ID 0208

- A1.001.001

Author Name: Robertson Alan Organization: Pfalzerwald Tree Farm Issue Category: 18 I appreciate the opportunity to submit written comments in reference to the Notice of Proposed Rulemaking published by the U. S. Environmental Protection Agency (EPA) in response to the Ninth Circuit Court ruling in NEDC v. Brown, 1063 F.3d 1176 (9th Cir

. 2 011).

Response Please refer to Response 1 and Response 15.



# Comment ID 0209

- A1.001.001

Author Name: Qualman Robert Organization: Qualman Tree Farm Issue Category: 18 I appreciate the opportunity to submit written comments in reference to the Notice of Proposed Rulemaking published by the U.S. Environmental Protection Agency (EPA) in response to the Ninth Circuit Court ruling in NEDC v. Brown, 1063 F.3d 1176 (9th Cir

. 2011).

Response Please refer to Response 15.



# Comment ID 0210

- A1.001.001

Author Name: Hulka Bryan Organization: Slade Creek LLC Issue Category: 18 I appreciate the opportunity to submit written comments in reference to the Notice of Proposed Rulemaking published by the U. S. Environmental Protection Agency (EPA) in response to the Ninth Circuit Court ruling in NEDC v. Brown, 1063 F.3d 1176 (9th Cir

. 2 011).

Response Please refer to Response 15.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 204 

# Comment ID 0211

- A1.001.001

Author Name: Lyskava Paul Organization: Pennsylvania Forest Products Association (PFPA) Issue Category: 18 The Pennsylvania Forest Products Association (PFPA) offers the following comments to the above referenced Notice of Proposed Rulemaking ("Proposed Rule") published by the U.S. Environmental Protection Agency ("EPA") in response to the Ninth Circuit r uling in NEDC v. Brown, 1063 F.3d 1176 (9th Cir. 2011).

The Pennsylvania Forest Products Association is the leading trade group in the state representing the various sectors of the forest products industry. Pennsylvania leads the nation in the production of ha rdwood lumber. PFPA's membership accounts for approximately
three

- quarters of the state's hardwood lumber production and many of the leading pulp and fiber utilizing manufacturing facilities in the state. PFPA's members own or manage more than one million acres of private forest in Pennsylvania.

Response Please refer to Response 15.



# Comment ID 0212

- A1.001.001

Author Name: Hawkinson Deb Organization: Forest Resources Association Inc. (FRA) Issue Category: 18 The Forest Resources Association is pleased to offer the following comments to the above referenced Notice of Proposed Rulema king ("Proposed Rule") published by the U.S. Environmental Protection Agency ("EPA") in response to the Ninth Circuit ruling in NE D C v. Brown, 1063 F.3d 1176 (9th Cir. 2011).

The Forest Resources Association is a nonprofit trade association concerned with the safe, efficient, and sustainable harvest of forest products and their transport from woods to mill. FRA represents the businesses making up the U.S. wood supply chain

- the nation's forest land owners and managers, logging contractors and other wood supply businesses, consuming mill procurement organizations, and support businesses, such as providers of equipment, financial servic es, and information services.

Response Please refer to Response 15.



# Comment ID 0213

- A1.001.001

Author Name: Drechsel Russell Organization: Madison Paper Industries Issue Category: 18 Madison Paper Industries is pleased to offer the following comments to the above referenced Notice of Proposed RulemakingChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 205 ("Proposed Rule") published by the U.S. Environmental Protection Agency ("EPA") in response to the Ninth Circuit ruling in NE DC v.
Bro wn, 1063 F.3d 1176 (9th Cir. 2011).

Madison Paper Industries is located in Madison, Maine and produces publications papers utilizing locally sourced wood fiber f rom private landowners throughout the Northeast.

Response Please refer to Response 15.



# Comment ID 0214

- A1.001.001

Author Name: Bush J.R. Organization: Virginia Forest Products Association (VFPA) Issue Category: 18 The Virginia Forest Products Association (VFPA) is pleased to offer the following comments to the above referenced Notice of Proposed Rulemaking ("Proposed Rule") published by the U.S. Environmental Protection Agency ("EPA") in response to the Ninth
Circui t ruling in NEDC v. Brown, 1063 F.3d 1176 (9th Cir. 2011).

VFPA is a non

- profit association representing the forest products industry in the Commonwealth of Virginia. Our members represent many facets of the forest products production but our typical members would be classed as small businesses, with the majority family owned and operated. One of our organization's activities is providing input to government agencies that are involved in the p romulgation of regulations that impact our industry's collectiv e operations.

Response Please refer to Response 15.



# Comment ID 0215

- A1.001.001

Author Name: ZumBahlen Bruce Organization: Z Acres Tree Farm Issue Category: 18 I am taking this opportunity to comment in reference to the Notice of Proposed Rulemaking published by the U.S. Environmental Protection Agency (EPA) that is in response to the Ninth Circuit Court ruling in NEDC v. Brown, 1063 F.3d 1176 (9th Cir. 2011 ).

Response Please refer to Response 15.



# Comment ID 0217.001.001Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 206 Author Name: Doggett Coleman Organization: Doggett Tree Farms Issue Category: 18 I am a Family Tree Farmer with Tree Farms in North Carolina and Virginia. I would like to comment on the Notice of Proposed Revisions to Stormwater Regulations to Clarify That an NPDES Permit is Not Required for Stormwater Discharges from Logging
Roads.

Response Please refer to Response 15.



# Comment ID 0219

- A2.001.001

Author Name: Covar Zak Organization: Texas Commission on Environmental Quality (TX CEQ) Issue Category: 18 The Environmental Protection Agency (EPA) published for public comment the Notice of Proposed Revisions to Stormwater Regulations To Clarify That an NPDES Permit Is Not Required for Stormwater Discharges From Logging Roads in the September 4,
2012 Federal Register.

The EPA announced proposed revisions to its stormwater regulations to specify that a National Pollutant Discharge Elimination System (NPDES) permit is not required for stormwater discharges from logging roads. In the Notice of Proposal, 40 Code of Federal Regulations Section 122.26(b)(14)(ii) is revised to clarify that for the purposes of defining stormwater discharges associate d with industrial activity, the only activities under SIC code 2411 - Timber Operations, that are "industrial" are rock crushing, g ravel washing, log sorting, and log storage.

The Texas Commission on Environmental Quality (TCEQ) provides the following comments to EPA regarding the Notice of Proposed
Revisions.

Response Please refer to Response 15.



# Comment ID 0220

- A1.001.001

Author Name: Lange Walter Organization: Lange Tree Farm Issue Category: 18 I appreciate the opportunity to submit written comments in reference to the Notice of Proposed Rulemaking published by the U. S. Environmental Protection Agency (EPA) in response to the Ninth Circuit Court ruling in NEDC v. Brown, 1063 F.3d 1176 (9th Cir. 2011).Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 207 Response Please refer to Response 15.



# Comment ID 0221

- A1.001.001

Author Name: Stuber IV Daniel Organization: Forest2Market, Inc. Issue Category: 18 Forest2Market, Inc. is pleased to offer the following comments to the above referenced Notice of Proposed Rulemaking ("Propos ed Rule") published by the U.S. Environmental Protection Agency ("EPA") in response to the Ninth Circuit ruling in NEDC v. Brown , 1 063 F.3d 1176 (9th Cir. 2011).

Forest2Market, Inc. empowers participants in the forest and wood products and bioenergy industries to make exponentially
better

- informed decisions through the strategic application of industry expertise and unique price dat abases.

Response Please refer to Response 15.



# Comment ID 0222

- A1.001.001

Author Name: Ryder Allan Organization: Timber Resource Group, Inc. (TRG) Issue Category: 18 Timber Resource Group Inc is pleased to offer the following comments to the above referenced Notice of Proposed Rulemaking ("Proposed Rule") published by the U.S. Environmental Protection Agency ("EPA") in response to the Ninth Circuit ruling in NE DC v.
Br own, 1063 F.3d 1176 (9th Cir. 2011).

Timber Resource Group (TRG) is a wood procurement organization that is responsible for buying spruce/fir fogs for Stratton Lu mber Company, a sawmill located in northwestern Maine sawing 65 million board feet annually. Between the two companies (with the same ownership) we employee 60+ people located primarily in Maine, but also New Hampshire and Vermont. Stratton buys logs from sev eral hundred log suppliers including logging contractors, landowners and land management companies throughout the northeastern United
States.

Response Please refer to Response 15.



# Comment ID 0223

- A1.001.001

Author Name: Braswell MaxChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 208 Organization: Arkansas Forestry Association (AFA) Issue Category: 18 The Arkansas Forestry Association (AFA) is pleased to offer the following comments to the above referenced Notice of Proposed Rulemaking ("Proposed Rule") published by the U.S. Environmental Protection Agency ("EPA") in response to the Ninth Circuit r uling in NEDC v. Brown, 1063 F.3d 1176 (9th Cir. 2011).

AFA is the only private, nonprofit organization that represents the entire forestry community in Arkansas. With over 1,300 me mbers, AFA advocates for the sustainable use and sound stewardship of Arkansas's forests and related resources to benefit members of the state's forestry community and all Arkansans, today and in the future.

Response Please refer to Response 15.



# Comment ID 0224

- A1.001.001

Author Name: Karels James Organization: Southern Group of State Foresters (SGSF) Issue Category: 18 The Southern Group of State Foresters (SGSF) is comprised of the state forestry agency directors in the southern U.S. - namely, Texas, Oklahoma, Arkansas, Louisiana, Tennessee, Kentucky, Mississippi, Alabama, Georgia, Florida, South Carolina, North Carolina and Virginia, and Puerto Rico and the Virgin Islands. These states individually, and collectively as the SGSF, address a multitud e of forestry issues that affect the region's 208 million acres of forestland, including those related to forest water resources. We welcome the opportunity to provide comments in response to the "Notice Of Proposed Revisions to Stormwater Regulations to Clarify That an NPDES Permit is not Required for Stormwater Discharges from Logging Roads," published by the Environmental Protection Agency (EPA) at 77 Fed. Reg. 53834 (September 4, 2012).

Response Please refer to Response 15.



# Comment ID 0225

- A1.001.001

Author Name: Bryant John Organization: American Forest Management (AFM) Issue Category: 18 I offer the following comments to the above referenced Notice of Proposed.Rulemaking ("Proposed Rule") published by the U.S. Environmental Protection Agency ("EPA") in responSeto the Ninth Circuit ruling in, NEDC fr. Brown, 1063 F.3d 1176 (9th Cir. 2011). My name ls John Bryant and I am employed by American Forest Management (AFM) as Northeast US Region Manager. AFM is one of the largest forest consulting firms in the United States. AFM currently manages over 4,7 million acre s of privately owned timberland employing 250 employees operating from 44 offices located in 15 states, AFM'S team of forestry and support professionals are focused on meeting client needs by providing a complete range of forestry services. My responsibili ties include oversight of management of 1.1Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 209 million acres of timberland in Maine and New Hampshire, which includes, public use, timber harvesting and road work.

Response Please refer to Response 15.



# Comment ID 0226

- A1.001.001

Author Name: Bauer Robert Organization: Kentucky Forest Industries Association (KFIA) Issue Category: 18 The Kentucky Forest Industries Association is pleased to offer the following comments to the above referenced Notice of Propo sed Rulemaking ("Proposed Rule") published by the U.S. Environmental Protection Agency ("EPA") in response to the Ninth Circuit ruling in NEDC v. Brown, 1063 F.3d 1176 (9th Cir. 2011).

The Kentucky Forest Industries Association (KFIA) represents over 500 member companies throughout Kentucky that manufacture and process wood products. All of these companies are reliant on logging to supply their necessary raw material needs. The Asso ciation works with the entire wood industry and our mission is to help them maintain a viable business while follo wing environmentally sound practices.

Response Please refer to Response 15.



# Comment ID 0227

- A1.001.001

Author Name: Racliff Jr. J. Organization: Mississippi Forestry Association (MFA) Issue Category: 18 Mississippi Forestry Association ("MFA") is pleased to offer the following comments to the above referenced Notice of Propose d Rulemaking ("Proposed Rule") published by the U.S. Environmental Protection Agency ("EPA") in response to the Ninth Circuit r ulin g in NEDC v. Brown, 1063 F.3d 1176 (9th Cir. 2011).

MFA, organized in 1938, is a not

- for

- profit organization representing a broad range of members in Mississippi's forestry community such as timberland owners, professional foresters, logging contractors, forest products manufacturers, wood fiber suppliers, state and federal agencies, and suppliers of products and services.

Response Please refer to Response 15.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 210 

# Comment ID 0228

- A1.001.001

Author Name: Johnson Andrew Organization: Graphic Packaging International (GPI) Issue Category: 18 Graphic Packaging International (GPI) is pleased to offer the following comments to the above referenced Notice of Proposed Rulemaking ("Proposed Rule") published by the U.S. Environmental Protection Agency ("EPA") in response to the Ninth Circuit ruling in NEDC v. Brown, 1063 F.3d 1176 (9th Cir. 2011).

GPI is a leading provider of packaging solutions for a wide variety of products to food, beverage and other consumer products companies. We are one of the largest producers of folding cartons and hold a leading market position in coated

- unbleached kraft,
coated

- recycled boxboard, multi

- wall bag and specialty packaging. The Company's customers include some of the most widely recognized companies in the world. As a le ading forest products company GPI relies on a sustainable and cost effect forest process for the raw materials of our core packaging products.

Response Please refer to Response 15.



# Comment ID 0229

- A1.001.001

Author Name: C. Randy Dye Steven H. Gunderson Organization: Association of Clean Water Administrators (ACWA) and National Association of State Foresters (NASF) Issue Category: 18 The Association of Clean Water Administrators (ACWA) <FN1> and the National Association of State Foresters (NA SF) <FN2> appreciate the opportunity to comment on the U.S. Environmental Protection Agency`s (EPA's) notice of proposed rulemaking to revise stormwater regulations to specify that a Clean Water Act (CWA) National Pollutant Discharge Elimination System (NP DES) permit is not required for stormwater discharges from logging roads under Phase I of the stormwater program. <FN3>

<FN1> ACWA is the national, nonpartisan, professional organization of state, interstate, and territorial water quality
control official s responsible for the implementation of surface water protection programs throughout the nation. ACWA’s members are responsible as co

- regulators for on

- the

- ground implementation of the CWA and in 46 states administer the statute’s NPDES program to
control and limit discharges to waters of the United States. <FN2> NASF represents the heads of forestry agencies in all fifty states and the US territories. Our principle clientele are private forest landowners, though many states also manage significant holdings of publicly owned forests. For decades now, our agencies have worked in conjunction with our counterpart state environmental regulatory agencies to successfully administer EPA’s silvicultural ex emption from NPDES permitting. <FN3> 77 Fed. Reg. 53834 (Sept . 4, 2012).

Response Please refer to Response 15.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 211 

# Comment ID 0229

- A1.001.003

Author Name: C. Randy Dye Steven H. Gunderson Organization: Association of Clean Water Administrators (ACWA) and National Association of State Foresters (NASF) Issue Category: 18 We are pleased to provide further input to the Agency as it considers potential approaches for addressing water quality impac ts from forest road discharges in the future. We thank you for the opportunity to comment on the Agency's propo sal.

Response Please refer to Response 15.



# Comment ID 0230

- A1.001.001

Author Name: Godbout Kevin Organization: Weyerhaeuser Company Issue Category: 18 Weyerhaeuser Company submits the following comments on the proposed revisions to stormwater regulations clarifying that and NPDES permit is not required from stormwater discharges from logging roads. By our membership association, we support the

comments s ubmitted by the National Alliance of Forest Owners (NAFO). NAFO is a growing alliance of U.S. private forest owners, managers, and organizations dedicated to protecting and enhancing the environmental and economic values of privately owned fo rests.

In th is notice, EPA is proposing to:

- Revise stormwater regulation s to specify that discharges from logging roads are not industrial activity and, therefore, not subject to mandatory National Pollutant Discharge Elimination System (NPDES) permits. Weyerhaeu ser supports EPA's proposal to not require NPDES stormwater discharge permits from forest roads. However, we suggest that EPA need not finalize the proposed rule while review of the NEOC v. Brawn decision is pending resolution before the U.S. Supreme Court

.

- Second, the preamble to the Proposed Rule discusses the Phase II regulatory program under Section 402(06) in connection with EPA's actions in response to the partial remand in EDC v. EPA and EPA's recent Notice of Intent. The preamble refers to "sto rm water discharges" that could be subject to Phase II regulations. EPA should clarify that any future Phase II regulation under Secti on 402(0(6) is limited solely to point source discharges of storm water.

This is a critical issue for Weyerhaeuser Compa ny. Within the U.S., we own and manage the world's largest private inventory of high

- quality softwood timber comprising roughly 6 million acres located in the Southeast (4 million acres) and the Pacific Northwe st (2 million acres). This ownership pattern s pans diverse geographic and hydrological networks ranging from the Coastal Plain of Eastern North Carolina to the Cascade Mountains in Western Washington. The forest road system maintained on Weyerhaeuser lands compri se a "vast and varied network" traversing federal, state, county and local public land, tribal land, other private lands and a variety of combinations of these lands. Additionally this forest road network is used for purpose other than log hauling; activities lik e recreation, fire suppression a nd other traditional forestry uses.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 212 Response Please refer to Response 15.



# Comment ID 0231

- A1.001.001

Author Name: Schnoor Candace Organization: John Deere Construction & Forestry Division Issue Category: 18 On behalf of John Deere and our customers engaged in logging throughout the United States, we are pleased to offer comments to the above referenced Notice of Proposed Rulemaking ("Proposed Rule") published by the U.S. Environmental Protection Agency ("EPA" ) in response to the Ninth Circuit ruling in NEDC v. Brown, 1063 F.3d 1176 (9th Cir. 2011).

Deere & Company is a world leader in providing advanced products and services and is committed to the success of customers wh ose work is linked to the land - thos e who cultivate, harvest, transform, enrich and build upon the land to meet the world's dramatically increasing need for food, fiber and fuel. John Deere is dedicated to developing advanced equipment that helps forestry thrive , while logging efficiently an d responsibly. Healthy forests are a logger's livelihood, so it is in their best interest and our nation's to properly manage these vital natural resources.

Response Please refer to Response 15.



# Comment ID 0232

- A1.001.001

Author Name: Wright Vance Organization: Wright Forestry LLC Issue Category: 18 I appreciate the opportunity to submit written comments in reference to the Notice of Proposed Rulemaking published by the U. S. Environmental Protection Agency (EPA) in response to the Ninth Circuit Court ruling in NEDC v. Brown, 1063 F.3d 1176 (9th Cir. 2011).

Response Please refer to Response 15.



# Comment ID 0233

- A1.001.001

Author Name: Blosser Mike Organization: Louisiana Pacific Corporation (LP) Issue Category: 18 Louisiana Pacific Corporation is pleased to offer comments on the above referenced Notice of Proposed Rulemaking ("Proposed R ule")Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 213 published by the U.S. Environmental Protection Agency ("EPA") in response to the Ninth Circuit ruling in NEDC v. Brown, 1063 F.3d 1176 (9th Cir. 2011).

Louisiana Pacific Corporation (LP) is a multi

- national company with extensive building products manufacturing facilities in the United States. Our business centers on producing wood composite materials used in residential housi ng and light commercial building. With wood being the major raw material in our products, LP is heavily dependent on strong and sustainable forests in the localitie s in which we operate. We strongly support various wood certification programs to ensure the long

- term health of forest resources and invest in many programs to educate and facilitate stakeholders in productive use of those resources. Given LP's stake in sustainable fo restry we have strong concerns with potential rule

- making that will undermine the proven success in managing of our nation's forests.

Response Please refer to Response 15.



# Comment ID 0234

- A1.001.001

Author Name: Martin Tom Organization: American Forest Foundation (AFF) Issue Category: 18 I appreciate the opportunity to submit written comments on behalf of the American Forest Foundation (AFF) in reference to the Notice of Proposed Rulemaking published by the U.S. Environmental Protection Agency (EPA) in response to the Ninth Circuit Court rul ing in NEDC v. Brown, 1063 F.3d 1176 (9th Cir. 2011).

Response Please refer to Response 15.



# Comment ID 0234

- A1.001.008

Author Name: Martin Tom Organization: American Forest Foundation (AFF) Issue Category: 18 The nations over 10 million family forest owners own more forestland than the federal government or private industry, and the y work every day to conserve and manage their forests. Every American, whether we know it or not, relies on family forest owners, w ho own
more than one

- third of all U.S. forests, to provide clean water and air, wildlife habitat, forest products we use every day, and places to hike, hunt and fish. These forests also support almost one million family

- wage jobs.

Thank you for the opportunity to submit comments. We look forward to working with you to resolve this issue, and if we can be of any assistance in answering any questions you may have about ATFS and how we incorporate BMPs, please let us know.

ResponseChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 214 Please refer to Response 15.



# Comment ID 0235

- A2.001.001

Author Name: Krancer Michael Organization: Pennsylvania Department of Environmental Protection (PA DEP) Issue Category: 18 The Environmental Protection Agency (EPA) has provided Notice of Proposed Revisions to stormwater regulations to clarify that a National Pollutant Discharge Elimination System (NPDES) Permit is not required for stormwater discharges from logging roads (Federal Register / Vol. 77, No. 171 / Tuesday, September 4, 2012, 53834

- 53838).

Respon se Please refer to Response 15.



# Comment ID 0237

- A1.001.001

Author Name: Peter J. Heide Cindy Mitchell Organization: Washington Forest Protection Association (WFPA) Issue Category: 18 Washington Forest Protection Association (WFPA) is pleased to offer the following comments to the above referenced Notice of Proposed Rulemaking ("Proposed Rule") published by the U.S. Environmental Protection Agency ("EPA") in response to the Ninth
Circui t ruling in NEDC v. Brown, 1063 F.3d 1176 (9th Cir. 2011).

WFPA was founded in 1908 as the trade association for private forestry in Washington State. Our mission is to advance sustain able forestry by establishing forest policies that encourage investmen t in forestland, protection of fish, water and wildlife. WFPA members grow and harvest trees on about 4 million acres in Washington State. They are large and small companies, individuals and fami lies, many
of whom are multi

‐ generational businesses, founded before statehood. We also have members that are multi

‐ national timber investors that manage globally diversified timberland portfolios for public and corporate pension plans, foundations and endowments.

Working forests provide economic, environmental and aesthetic benefits for the public, and promotion of responsible forest management as a preferred land use is a benefit to all of society. Washington State is the second largest lumber producer in the nation, employing more than 50,000 people with a tot al employment impact over 118,000 in the State, primarily in rural, economically depressed communities. The Pacific Northwest is one of a handful of major timber

- growing regions in the world. Timberland owners
have investment choices at home and abroad and regulatory certainty is a key factor in evaluating their next investment decision. Regulatory uncertainty drives away investment, causes landowners to divest and consider other land use options, thereby jeopa rdizing jobs, rural economic stability and incr easing poverty and social problems. Regulations that cause uncertainty drive working forests off of the landscape.

Response Please refer to Response 15.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 215 

# Comment ID 0237

- A1.001.006

Author Name: Peter J. Heide Cindy Mitchell Organization: Washington Forest Protection Association (WFPA) Issue Category: 18 In closing, we wish to thank Connie Bosma and Jeremy Bauer of the Office of Water for helping to organize and for participati ng in the
June 2012 field tour of forest road BMPs in our stat e. An on

- site, visual impression of natural resource topics is critical to the formation of environmental policies and we appreciate EPA's effort to add that element to their knowledge of the forest road topic.

Response Please refer to Response 1 and Response 15.



# Comment ID 0238

- A1.001.002

Author Name: Portman Carl Organization: Resource Development Council for Alaska (RDC) Issue Category: 18 RDC is an Alaskan, non

- profit, membership

- funded organization founded in 1975. The RDC membership is comprised of individuals and companies from Alaska's oil and gas, mining, timber, tourism, and fisheries industries, as well as Alaska Native corporat ions, local communities, organized labor, and industry support firms. RDC's purpose is to link these diver se interests together to encourage a strong, diversified private sector in Alaska and expand the state's economic base through the responsible development of our natural resources.

Response Please refer to Response 15.



# Comment ID 0240

- A1.001.001

Author Name: Baumhoff Oscar Organization: Baumhoff & Company, LLC Issue Category: 18 I appreciate the opportunity to submit written comments in reference to the Notice of Proposed Rulemaking published by the U. S. Environmental Protection Agency (EPA) in response to the Ninth Circuit Court ruling in NEDC v. Brown, 1063 F.3d 1176 (9th Cir. 2011).

Response Please refer to Response 15.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 216 

# Comment ID 0241

- A1.001.001

Author Name: Lear Monica Organization: Northeastern Area Association of State Foresters (NAASF) Issue Category: 18 As the President of the Northeastern Area Association of State Foresters (NAASF), I submit the attached joint comments from t he National Association of State Foresters (NASF) and the Association of Clean Water Adminis trators (ACWA) regarding the U.S. Environmental Protection Agency's proposed revisions to its Phase I stormwater regulations to clarify that stormwater dischar ges from logging roads do not constitute stormwater discharges associated with industrial activity and that a National Pollutant Discharge Elimination System (NPDES) permit is not required for these stormwater discharges. <FN1> The NASF and ACWA joint comments embody the positions of forestry agencies from the twenty Northeast and Midwest states <FN2> and the District of Columbia which comprise NAASF.

State

- based BMPs have demonstrated to be the most effective approach for addressing water quality impacts from forestry activities. Thank you for the opportunity to comment on this issue. Please feel fr ee to contact me directly for any clarification or additional
information.

<FN1> As published in 77 Fed. Reg. 53834 on September 4, 2012 <FN2> Connecticut, Delaware, Illinois, Indiana, Iowa, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, O hio, Pennsylvania, New Hampshire, New Jersey, New York, Rhode Island, Vermont, West Virginia, Wisconsin

Response Please refer to Response 15. Refer also to Response 12 and Response 13.



# Comment ID 0241

- A1.001.002

Author Name: Lear Monica Organization: Northeastern Area Association of State Foresters (NAASF) Issue Category: 18 The Association of Clean Water Administrators (ACWA) <FN1> and the National Association of State Foresters (NASF) <FN2> appreciate the opportunity to comment on the U.S. Environmental Protection Agency`s (EPA's) notice of proposed rulemaking to revise stormwater regulations to specify that a Clean Water Act (CWA) National Pollutant Discharge Elimination System (NPDES) permit is not required for stormwater discharges from logging roads under Phase I of the stormwater program. <FN3>

<FN1> ACWA is the national, nonpartisan, professional organization of state, interstate, and territorial water quality control officials responsible for the implementation of surface wate r protection programs throughout the nation. ACWA's members are responsible as

co

- regulators for on

- the

- ground implementation of the CWA and in 46 states administer the statute's NPDES program to control and limit discharges to waters of the United States. <FN2> NASF represents the heads of forestry agencies in all fifty states and the US territories. Our principle clientele are private forest landowners, though many states also manage significant holdings of publicly owned forests. For decades now, our ag encies have worked in conjunction with our counterpart state environmental regulatory agencies to successfully administer EPA's silvicultural ex emption from NPDES permitting.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 217 <FN3> 77 Fed. Reg. 53834 (Sept. 4, 2012).

Response Please refer to Response 15.



# Comment ID 0242

- A1.001.001

Author Name: Garber Richard Organization: Boise Inc. Issue Category: 18 Boise Inc. (Boise) appreciates the opportunity to comment on EPA's proposed regulations providing confirmation and clarificat ion that silviculturel activities are exempt from NPDES stormwater discharge permit requirements.

Response Please refer to Response 15.



# Comment ID 0242

- A1.001.003

Author Name: Garber Richard Organization: Boise Inc. Issue Category: 18 We request that EPA carefully consider our comments and those submitted by the American Forest and Paper Association (AF&PA), of
which Boise is a member.

Boise is a leading manufacturer of packaging and paper products, employing approximately 5,400 people in the U.S. Boi se's range of packaging products includes linerboard and corrugating medium, corrugated containers and sheets, and protective packaging pro ducts. Boise's paper products include imaging papers for the office and home, printing and converting papers, and pap ers used in packaging, such as label and release and flexible packaging. As a packaging and paper company, with facilities in many states throughout all regions of the country, Boise relies on access to economically priced wood fiber for the manufacture of its products and also access to economically priced forest biomass residuals for fuel in the production of energy.

Response Please refer to Response 15.



# Comment ID 0243

- A1.001.001

Author Name: Tenny David Organization: National Alliance of Forest Owners (NAFO) Issue Category: 18Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 218 The National Alliance of Forest Owners is pleased to offer the following comments to the above referenced Notice of Proposed Rulemaking ("Proposed Rule") published by the U.S. Environmental Protection Agency ("EPA") in response to the Ninth Circuit r uling in NEDC v. Brown, 1063 F.3d 1176 (9th Cir. 2011).

NAFO represents owners and managers of approximately 80 million acres of private forests in 47 states. NAFO's mission is to p rotect and enhance the economic and environmental values of private forests through targeted policy advocacy at the national level. NAFO seeks common sense policy solutions to sustain the ecological, economic, and social values of forests and to assure an abundance of healthy and productive forest resources for present and future g enerations.

Response Please refer to Response 15.



# Comment ID 0244

- A1.001.001

Author Name: Carlson Eric Organization: Empire State Forest Products Association (ESFPA) Issue Category: 18 The Empire State Forest Products Association (ESFPA) is pleased to offer the following comments to the above referenced Notic e of Proposed Rulemaking ("Proposed Rule") published by the U.S. Environmental Protection Agency ("EPA") in response to the Ninth
C ircuit ruling in NEDC v. Brown, 1063 F.3d 1176 (9th Cir. 2011).

Our membership consists of over 400 businesses and individuals with a vested interest in the forest products industry in New York State; including forest landowners, timber harvesters, fur niture companies, lumber manufacturers, pulp and paper companies, and other wood product manufacturers from across New York State. Members own and manage 1.2 million acres of New York forests and employ ove r

one

- third of the 65,000 individuals employed in the forest products industry in New York State. We harvest nearly 4500 million board feet of timber and millions of tons of pulpwood annually. New York State is a very diverse region with many lakes and streams . To date, according to the 401 d listing by t he Environmental protection Agency there is not a single segment of any lake, river , or stream impaired by our industry, a living testament to the effectiveness of current regulations and enforcement by the state

- federal nexus created through the Clean wa ter Act.

Response Please refer to Response 15.



# Comment ID 0245

- A1.001.001

Author Name: Smalley Bryan Organization: Southeastern Lumber Manufacturers Assocation (SLMA) Issue Category: 18 The Southeastern Lumber Manufacturers Association (SLMA) appreciates the opportunity to comment on the above Notice of Proposed Rulemaking. SLMA represents more than 125 privately owned saw mills in 17 states and their suppliers. Our members depend upon aChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 219 steady supply of timber accessed by forest roads on their own land, land owned by others, and federal forestlands.

Response Please refer to Response 15.



# Comment ID 0245

- A1.001.006

Author Name: Smalley Bryan Organization: Southeastern Lumber Manufacturers Assocation (SLMA) Issue Category: 18
Should EPA decide to act without awaiting the Supreme Court's opinion, SLMA wishes to express its support for the detailed comment letter submitted by the National Association of Forestland Owners.

Response Please refer to Response 15. Refer also to Response 4.



# Comment ID 0246

- A1.001.001

Author Name: Gustafson Earl Organization: Wisconsin Paper Council (WPC) Issue Category: 18 The Wisconsin Paper Council (Paper Council, WPC) respectfully submits the following comments regarding the EPA's intent to revise stormwater regulations.

Response Please refer to Response 15.



# Comment ID 0246

- A1.001.003

Author Name: Gustafson Earl Organization: Wisconsin Paper Council (WPC) Issue Category: 18
The Wisconsin Paper Council is the trade association of the pulp, paper and allied industry in Wisconsin. It is an incorporated, non

- profit 501(c)(6) entity. Created in 1950, the association represents its members in government and public relations. The Paper Council is comprised of 20 companies which are manufacturers of pulp and paper products (Regular Members) and 75 companies which are suppliers of goods and services to the industry (Associate and Converter Members).

Wisconsin is the nation's leading pape r manufacturing state and among the leaders in the combined output of paper and paperboard products. The Wisconsin forest products industry employs 60,900 individuals with annual wages of $2.74 billion, including 32, 300 menChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 220 and women employed in paper manu facturing earning $1.79 billion annually. Annual shipments by Wisconsin's forest products industry are valued at $17.9 billion.

Wisconsin's forest resource covers 16.2 million acres or nearly 47 percent of the state's land area. Ownership of the forest i s 56 percent private, non

- industrial; 34 percent local, county, state, federal, tribal and other government units; and 10 percent corporate and other private.

Response Please refer to Response 15.



# Comment ID 0246

- A1.001.005

Author Name: Gustafson Earl Organization: Wisconsin Paper Council (WPC) Issue Category: 18 The Paper Council appreciates the EPA's initiative and believes BMP guidelines and third party certification programs are eff ective alternatives to the imposition of an NPDES permit pro gram to address stormwater runoff from forest roads.

Wisconsin Paper Council members are justifiably proud to be stewards of forest resources, including forest roads and their en vironment. While this stewardship is commendable, their actions are simply g ood business practices by an industry that is dependent on a healthy, sustainable forest environment for its present and future livelihood

Response Please refer to Response 15.



# Comment ID 0247

- A1.001.001

Author Name: Geissler George Organization: Oklahoma Department of Agriculture, Food, and Forestry (OK DAFF) Issue Category: 18 Oklahoma Forestry Services, a division of the Department of Agriculture, Food and Forestry, is responsible for managing and p rotecting the state's forest resources for present and future generations. By law, we are charged with developing and administering silvicultural best management practices (BMPs) in cooperation with landowners and land users to protect water quality, and have managed an effective water quality management program since 1976.

Response Please refer to Response 15.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 221 

# Comment ID 02 48

- A1.001.001

Author Name: Poling Jan Organization: American Forest & Paper Association (AF&PA) Issue Category: 18 The American Forest & Paper Association (AF& PA) appreciates the opportunity to submit the following comments in response to the Environmental Protection Agency's (EPA's) "Notice of Proposed Revisions to Clarify That an NPDES Permit Is Not Required for Stormwater Discharges From Logging Roads" (Propo sed Rule) ( 77 Fed. Reg. 53834, September 4, 2012).

AF& PA is the national trade association of the forest products industry, representing pulp, paper, packaging and wood products manufacturers, and forest landowners. Our companies make products essential for everyday life from renewable and recyclable

resource s that sustain the environment. The forest products industry accounts for approximately 5 percent of the total U.S. manufacturing GDP. Industry companies produce about $190 billion in products annually and employ nearly 900,000 men and women

, exceeding emp loyment levels in the automotive, chemicals and plastics industries. The industry meets a payroll of approximately $50 billion annually and is among the top 10 manufacturing sector employers in 47 states.

BACKGROUND

The EPA's proposed rule is in respon se to the Court of Appeals for the Ninth Circuit's decision in Northwest Environmental Defense Center (NEDC) v. Brown, 1063 F.3d 1176 (9th Cir. 2011), which held that culverts and drainage ditches along a county forest r oad used for timber harvest are "poi nt sources" requiring special industrial discharge permits. The ruling overturns 35 years of EPA treatment of forestry activities and forest roads as nonpoint sources best regulated under state

- developed Best Management Practices (BMPs). The
decision curre ntly is under review by the U.S. Supreme Court. If the decision stands, it will have significant implications for the forest products industry, which depends on a continued and reliable supply of fiber to make the forest products essential to everyda y life . The forest products industry relies on sustainably managed forests to help ensure this fiber supply. The Ninth Circuit's decision could jeopardize sustainable forest management activities by diverting limited funds from on

- the

- ground management to unnece ssary paperwork and monitoring. Moreover, it will expose those seeking access to fiber, forest owners and states to citizen lawsuit s under the Clean Water Act (CWA), resulting in a costly, ongoing cycle of litigation. These increased costs could result in the foregoing of management activities needed to provide healthy and sustainable forests, conversion of forest land to non

- forest uses, and reduced tree plantings.

Response Please refer to Response 15. Refer also to Response 1 and to the preamble to t oday's rule.



# Comment ID 0249

- A1.001.001

Author Name: Howe Paul Organization: Virginia Forestry Association (VFA) Issue Category: 18 The Virginia Forestry Association (VFA) is eager to provide our written comments for the above referenced Notice of Proposed Rulemaking published by the U.S. Environmental Protection Agency (EPA) in response to the Ninth Circuit Court ruling in NEDC v. Bro wn, 1063 F.3d 1176 (9th Cir. 2011).Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 222 VFA is an organization of 1200 forest landowners, forest product businesses, timber harvesters and professional foresters det ermined to foster sustainable forests and vibrant wood products markets and commerce in the Commonwealth of Virginia. Our 15 millio n acres of forestland in the state serve a vital economic and environmental function for all of Virginia's citizens.

Response Please refer to Response 15.



# Comment ID 0250

- A1.001.001

Author Name: Daugherty Peter Organization: Oregon Department o f Forestry (OR DF) Issue Category: 18 The Oregon Department of Forestry (ODF) oversees administration and enforcement of the Oregon Forests Practices Act (Oregon Revised Statute (ORS) 527.610 to 527.770, 527.990 (1) and 527.992). With this statute, the Oregon legislature directed the Or egon Bo ard of Forestry (Board), in consultation with the Oregon Environmental Quality Commission, to establish best management pract ices (BMPs) to protect Oregon's waters from pollution caused by forest operations (ORS 527.765). In accordance with those directiv e s and the overarching scheme of the Clean Water Act, the Board promulgated administrative rules establishing (BMPs) and other rules to insure that, to the maximum extent practicable, nonpoint source discharges of pollutants resulting from forest operations on forestlands do not impair the achievement and maintenance of water quality.

With respect to forest roads, the Board has adopted BMPs and rules to establish standards for locating, designing, constructi ng and maintaining efficient and beneficial forest roads that provide the maximum practical protection to maintain water quality (Oregon Administrative Rules (OAR) 629

- 625

- 0000 thru 629

- 625

- 0700). For example, the rules specify that drainage structures should be designed so that collected stormwater can be filtered before it enters any waterbodies (OAR 629

- 625

- 0330(4)). The rules also require that operators inspect and maintain road drainage systems before the rainy and runoff seasons (OAR 629

- 625

- 0600) and requires operators to cease operations during w et weather if there will be delivery sediment to waters of the state (OAR 629

- 625

- 0700). In addition to these rules, the Board has promulgated an enforcement strategy, requiring the State Forester to investigate and i nspect forest operators for compliance with the rules, and authorizing the Forester to initiate enforcement actions (OAR 629 Div. 670).

Response Please refer to Response 15.



# Comment ID 0251

- A1.001.001

Author Name: Keough Shawn Organization: Associated Logging Contractors of Idaho (ALC

- Idaho) Issue Category: 18 The Associated Logging Contractors of Idaho (ALC

- Idaho) is pleased to offer the following comments to the above referenced Notice of Proposed Rulemaking ("Proposed Rule") published by the U.S. Environmental Protection Agenc y ("EPA") in response to the NinthChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 223 Circuit ruling in NEDC v. Brown, 1063 F.3d 1176 (9th Cir. 2011).

The ALC

- Idaho is a non

- profit trade organization that was established in 1966 by and for logging and log trucking contractors in Idaho.
We have close to 4 00 businesses that are regular members across the state and an additional 100 businesses that are associate members. Our member businesses are typically small family owned and operated companies. NPDES permits for discharges from forest roads significantly impacts our business operations.

Response Please refer to Response 15.



# Comment ID 0252

- A1.001.001

Author Name: Brandt Wayne Organization: Minnesota Forest Industries (MFI) Issue Category: 18 Minnesota Forest Industries (MFI) offers the following comments on the above Notice of Proposed Rulemaking. Further, MFI expr esses it support for the detailed letter submitted by the National Alliance of Forest Landowners.

MFI is a trade association rep resenting the state's primary forest products companies. Our members rely on timber harvested from public as a source of timber. MFI members are part of a forest products industry that generates $9 billion in economic activity that directly employee more t han 30,000 individuals in the state. Based on employment the forest products industry in Minnesota is the 4th largest manufacturing industry in the state.

Response Please refer to Response 15.



# Comment ID 0253

- A1.001.001

Author Name: Gustafson Earl Organization: Wisconsin Paper Council (WPC) Issue Category: 18 The Wisconsin Paper Council (WPC) submits the following comments in regard to the above referenced Notice of Proposed Rulemaking (Proposed Rule) published by the U.S. Environmental Prot ection Agency (EPA) in response to a ruling by the U.S. Court of Appeals for the Ninth Circuit in Northwest Environmental Defense Center v. Brown 640 F.3d 1063 (9th Cir. 2011) (NEDC v. Brown ).

Introduction

The WPC is the trade association of the pulp, paper and allied industry in Wisconsin. It is an incorporated, non

- profit 501(c)(6) entity. Created in 1950, the association represents its members in governmental and public relations. The WPC is comprised of 19 comp anies which are manufacturers of pulp a nd paper products and approximately 75 companies which are suppliers of goods and services to theChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 224 industry. Wisconsin is the nation's leading paper manufacturing state and among the leaders in the combined output of paper a nd paperboard products. The indus try's basic raw material is wood fiber sourced from public and private forests. All WPC members utilizing pulpwood directly from forests are members of one or more independent, third party certification programs to assure that the forest environment, bioti c and abiotic, is protected and, among other results, that the transportation infrastructure within forests, necessary for management, harvesting and reforestation, is consistent with the industry's ethos of environmental protection a nd sustainability.

Response Please refer to Response 15.



# Comment ID 0254

- A1.001.001

Author Name: Lynch Robert Organization: Irrigation & Electrical Districts Association of Arizona (IEDAA) Issue Category: 18 We are responding to your request for comments on the above

- referenced proposed change to your NPDES permit rule regarding silviculture because it raises an issue of national concern related to when a court should defer to an agency's interpretatio n of its own rule.

As we understand the intent of this Federal Register notice, EPA is attempting to narrow its regulation to avoid further misi nterpretation of the intent of its silviculture rule. The problem has come up by virtue of the holding in the Ninth Circuit decision in Northwest Environmental Defense Center v. Brown, 640 F.3d 1063 (2011) that stormwater runoff from two forest roads was a point source discharge of industrial stormwater for which an NPDES permit was required.

Response
Please ref er to Response 15.



# Comment ID 0255

- A1.001.001

Author Name: Moon C. Organization: Issue Category: 18 I appreciate the opportunity to submit written comments in reference to the Notice of Proposed Rulemaking published by the U. S.
Environmental Protection Agency (EPA) in response to the Ninth Circuit Court ruling in NEDC v. Brown, 1063 F.3d 1176 (9th Cir. 2011).

Response Please refer to Response 15.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 225 

# Comment ID 0256

- A1.001.001

Author Name: Bain J.P. Organization: Issue Category: 18
I appreciate the opportunity to submit written comments in reference to the Notice of Proposed Rulemaking published by the U.S. Environmental Protection Agency (EPA) in response to the Ninth Circuit Court ruling in NEDC v. Brown, 1063 F.3d 1176 (9th Cir

. 20 11).

Response Please refer to Response 15.



# Comment ID 0257

- A1.001.001

Author Name: Saloom Salem Organization: Saloom Properties, LLC Issue Category: 18 It is greatly appreciated to have the opportunity to submit written comments in reference to the Notice of Proposed Rulemaking published by the U.S. Environmental Protection Agency (EPA) in response to the Ninth Circuit Court ruling in NEDC v. Brown, 1 063 F.3d 1176 (9th Cir. 2011).

Response Please refer to Response 15.



# Comment ID 0258

- A1.001.001

Author Name: McNitt Kristina Organization: Oregon Forest Industries Council (OFIC) Issue Category: 18 The Oregon Forest Industries Council ("OFIC") is pleased to offer the following comments to the above

- referenced Notice of Proposed Rulemaking ("Proposed Rule") published by the U.S. Environmental Protection Agency ("EPA") in response to the Ninth Circuit ruling in NEDC v. Brown, 1063 F.3d 1176 (9th Cir. 2011).

OFIC is a trade association representing 60 Oregon forestland owners and forest product related manufacturers. Its members ow n more than 90% of Oregon's private large

- owner forestland base. OFIC coordinates advocacy on behalf of its members to (i) maintain a positive, stable business operating environment for Oregon's forest products community and encourage long

- term investments in healthy forests, (ii) ensure a reliable timber supply from Oregon's forestlands, and (iii) promote stewardship and sustainable management to maintain productivity and protect environmental values on Oregon's forestlands.

ResponseChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 226 Please refer to Response 15.



# Comment ID 0258

- A1.001.004

Author Name: McNitt Kristina Organization: Oregon Forest Industries Council (OFIC) Issue Category: 18 OFIC would also echo the comments submitted on the Proposed Rule by the National Alliance of Forest Owners, particularly thos e with regard to clarification that the Phase I regulations apply only to specific point sources, and not silvicultural nonpoint source activities, such as those listed at 40 CFR § 122.27(b), including timber harvesting and activities incidental thereto. <Refer to comment 0243 for responses to issues ra ised by this comment.>

Response Please refer to Response 15. Refer also to Response 6, Response 7, and the preamble to the final rule.



# Comment ID 0259

- A1.001.001

Author Name: Crapser Bill Organization: Council of Western State Foresters (CWSF) Issue Category: 18 The Council of Western State Foresters (CWSF) respectfully submits the following comments in response to the U.S. Environment al Protection Agency's (EPA's) notice of proposed rulemaking to revise stormwater regulations to clarify that a Clean Water Act National Pollutant Discharge Elimination System (NPDES) permit is not required for stormwater discharges from logging roads. 77 FR No. 171
53834

- 53838 (Sept. 4, 2012). The CWSF membership includes the directors of state forestry agencies i n the seventeen western states and six Pacific Island Territories of the United States. The mission of the CWSF is to promote science

- based forest management that serves the values of society and ensures the health and sustainability of western forests. We appreciate the opportunity to provide comment on the proposed rulemaking.

Response Please refer to Response 15.



# Comment ID 0260

- A1.001.001

Author Name: Greig George Organization: Pennsylvania Department of Agriculture (PA DA) Issue Category: 18 The Pennsylvania Department of Agriculture and the Pennsylvania Hardwoods Development Council offer the following comments to the above referenced Notice of Proposed Rulemaking ("Proposed Rule") published by the U.S. Environmental Protection Agency ("EPA") in response to the Ninth Circuit ruling in NEDC v. Brown, 1063 F.3d 1176 (9th Cir. 2011).Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 227 Response Please refer to Response 15.



# Comment ID 0261

- A1.001.001

Author Name: Imbergamo Bill Organization: Federal Forest Resource Coalition (FFRC) Issue Category: 18 The Federal Forest Resource Coalition (FFRC) offers the following comments on the above Notice of Proposed Rulemaking.

FFRC is a nonprofit organization representing over 650 members, including manufacturers of solid wood products, pulp, paper, and biomass energy, as well as loggers and wood transportation companies. Our members depend upon timber harvested from public la nds as a source of timber and wood fiber supply. Our members purchase Forest Service and Bureau of Land Management t imber in over 26 States, and as such will be directly affected by any changes in how forest roads accessing that timber are regulated. Moreove r, our member company employees live and work near federal forest lands and utilize forest roads for recreation an d to secure firewood.

FFRC filed an amicus brief in support of Petitioners in Decker v. NEDC and Georgia

- Pacific

- West v. NEDC based upon our belief that the Ninth Circuit Court of Appeals erred in its ruling that forest roads require National Pollutant Discharge Elimination System (NPDES) permits under the Clean Water Act.

Response Please refer to Response 15.



# Comment ID 0261

- A1.001.005

Author Name: Imbergamo Bill Organization: Federal Forest Resource Coalition (FFRC) Issue Category: 18 Should EPA decide to act without awaiting the Supreme Court's opinion, FFRC wishes to express its support for the detailed co mment letter submitted by the National Association of Forestland Owners.

Again, please consider FFRC’s comments to incorporate the detailed comments of the National Association of Forestland Owners.

Response Please refer to Response 15.



# Comment ID 0262

- A1.001.001

Author Name: Miller J.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 228 Organization: Vermont Law School Issue Category: 18 I am writing in response to the notice published in the Federal Register proposing revisions to the regulation of stormwater discharge. The revision attempts to clarify existing regulatory language that proclaims roads such as those at issue in Northwest Enviro nmental
Defense Center v Br own, 640 F. 3d 1063 (9th Cir. 2011), are exempt from National Pollution Discharge Elimination System (NPDES) permits. Notice of Proposed Revisions to Stormwater Regulations To Clarify That an NPDES Permit Is Not Required for Stormwate r Discharges From Logg ing Roads, 77 Fed. Reg. 53834, 53835 (proposed August 24, 2012) (to be codified at 40 C.F.R. pt. 122).

Response Please refer to Response 15.



# Comment ID 0262

- A1.001.003

Author Name: Miller J. Organization: Vermont Law School Issue Category: 18 Congress declared in the CWA that municipal and industrial stormwater discharges shall not require a permit if they were enti rely composed of stormwater. 33 U.S.C. § 1342(p) (2006). However, under 33 U.S.C. §1342(p)(2), there are five specific exceptions a nd detailed instances where an NPDES permit would be required. Id. Discharges associated with industrial activity are among the five listed categories. Id. Congress left EPA with tremendous discretion to further define the applicable activities. Brief for the USA as Amicus Curiae, p. 31, cert. granted Decker v. Nw. Envtl. Def. Ctr., 11

- 338, 2012 WL 2368685 (U.S. June 25, 2012). EPA proceeded to promulgate a rule to identify which discharges were applicable to state NPDES programs and those that were not. 40 C.F.R. §122.26(b)(14) (2006). Runoff must be directly related to manufacturing, processing, or raw materials storage areas at an ind ustrial plant to classify as a discharge from industrial activity. Id. The only definition of industrial activity that is not a stationary site or facility is
"immediate access" roads. Id.

An argument might be made that the roads in question are an immediate access road to the logging operations in the area. Howe ver, it is evident the only silvicultural stormwater sources th at are subject to the EPA's stormwater regulations are the four defined in the silvicultural rule: rock crushing facilities, gravel washing facilities, log sorting facilities, and log storage facilities. 40 C.F.R. § 122.27 (2006). It would be contrary to t he clear intent of the EPA to say that these roads are immediate access roads and require a permit is. Brief for the USA as Amicus Curiae, p. 42, cert. granted Decker v. Nw. Envtl. Def. Ctr., 11

- 338, 2012 WL 2368685 (U.S. June 25, 2012). This
revision will quiet any argument that these forest and logging roads are considered immediate access roads and require a NPDES permit. Additionally, it essentially makes the NEDC's question presented in the current litigation moot. The clarification explicitly states i n footnote one that the point/nonpoint designation is of no consequence. Notice of Proposed Revisions to Stormwater Regulations To Clarify That an NPDES Permit Is Not Required for Stormwater Discharges From Logging Roads, 77 Fed. Reg. at 53835. The revisio n clearly states that these roads are not considered industrial activity and they are not required to obtain an NPDES permit be cause they are
not one of the four defined silvicultural activities. Id at 53837.

Although EPA retains the power to create suc h regulations, it does not go entirely unchecked. There are still boundaries provided by the Administrative Procedure Act that prohibits EPA from promulgating rules that might be "arbitrary and capricious, an abuse of discretion,
or otherwise not in accord ance with the law”. 5 U.S.C. § 706 (2006). However, if the regulations are a reasonable interpretation of theChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 229 law, Congress gives deference to the EPA’s discretionary decisions. Chevron U.S.A., Inc. v. EPA, 467 U.S. 837, 843 (1984).

Stormwater offers nume rous unique challenges to regulate due to the unpredictable characteristics of natural runoff from precipitation. The financial and physical constraints of these characteristics require special attention and expertise when determining the appropriate

struc ture for regulation. The EPA possesses the knowledge and resources to best determine when NPDES permits are necessary, as wel l as instances they are not.

Response Please refer to Response 13, Response 15. Refer also to Response 8.



# Comment ID 0263

- A1.001.001

Author Name: Schmidt David Organization: Schmidt Family Forest LLC Issue Category: 18 My family owns and manages 4 timberland properties totalling 560 acres in the coast range of NW Oregon and would like to subm it the
attached comments on the Notice of Proposed Revisions to Stormwater Regulations to Clarify That an NPDES Permit is Not Required for Stormwater Discharges From Logging Roads, 77 Fed. Reg. 53834.

I appreciate the opportunity to submit written comments about EPA's response t o the Ninth Circuit Court ruling in NEDC v. Brown.

Response Please refer to Response 15.



# Comment ID 0264

- A1.001.001

Author Name: Magruder John Organization: Magruder Family Tree Farm Issue Category: 18 I appreciate the opportunity to submit written comments in reference to the Notice of Proposed Rulemaking published by the U.S. Environmental Protection Agency (EPA) in response to the Ninth Circuit Court ruling in NEDC v. Brown, 1063 F.3d 1176 (9th Cir

. 2011).

Response
Please refer to Res ponse 15.



# Comment ID 0265

- A1.001.001Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 230 Author Name: Pierce Josiah Organization: The Pierce Place Issue Category: 18 Thank you for the opportunity to submit written comments in reference to the Notice of Proposed Rulemaking published by the U .S. Environmental Protection Agency (EPA) in response to the Ninth Circuit Court ruling in NEDC v. Brown, 1063 F.3d 1176 (9th Cir

. 2011).

Response Please refer to Response 15.



# Comment ID 0266

- A1.001.001

Author Name: Goergen Jr. Michael Organization: Society of American Foresters (SAF) Issue Category: 18 I respectfully submit the attached comments on the proposed revisions to stormwater regulations to clarify that an NPDES Permit is not required for stormwater discharges from logging roads. The attached comments are submitted on behalf of 12,000 Society of Ame rican Foresters (SAF) members from across the country. SAF encourages the EPA to continue to engage stakeholders in the process as the agency works to finalize the revisions to the stormwater regulations and our
members stand ready to assist the EPA by providing feedback, research, and technical assistance as the EPA moves forward in this rule making process.

On behalf of the Society of American Foresters (SAF), the national scientific and educational organization repre senting over 12,000 forestry professionals in the United States, please accept the following comments in response to the "Notice of Proposed Revi sions to Stormwater Regulations to Clarify That an NPDES Permit Is Not Required for Stormwater Discharges from Logging Roads," published by the Environmental Protection Agency (EPA) at 77 Fed. Reg. 53834 (September 4, 2012).

Response Please refer to Response 15.



# Comment ID 0266.001.001

Author Name: Goergen Jr. Michael Organization: Society of American For esters (SAF) Issue Category: 18 I respectfully submit the attached comments on the proposed revisions to stormwater regulations to clarify that an NPDES Perm it is not required for stormwater discharges from logging roads. The attached comments are submit ted on behalf of 12,000 Society of American Foresters (SAF) members from across the country. SAF encourages the EPA to continue to engage stakeholders in the process as the agency works to finalize the revisions to the stormwater regulations and our member s stand ready to assist the EPA by providing feedback, research, and technical assistance as the EPA moves forward in this rule making process.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 231 Response Please refer to Response 15.



# Comment ID 0267

- A2.001.001

Author Name: Chris Winter Paul A. Kampmeier Organization: Washington Forest Law Center and Crag Law Center (obo Northwest Environmental Defense Center et al.) Issue Category: 18 Thank you for the opportunity to comment on the U.S. Environmental Protection Agency's proposal to revise its stormwater regulations to specify that a National Pollutant Discharge Elimination System (NPDES) permit is not required for stormwater discharges fr om logging roads. These comments are submitted on behalf of the Northwest Environmental Defense Center, the Sierra Club, Environmental Protection Information Center, Rogue Riverkeeper, Clean Water Network, Friends of the Eel River, Friends of the Wild Swan, Wild Salmon Center, Center for Biological Diversity, Umpqua Watersheds, WildEarth Guardians, Oregon Wild, BARK, KS Wild, Friends of the Kalmiopsis, Atlantic States Legal Foundation, Wildlands CPR, Waterkeeper Alliance, Colorado Mountain Clu b, William Lider of Lider Engineering, PLLC, Public Employees for Environmental Responsibility, Oregon Coast Alliance, Gi fford Pinchot Task Force, Wyoming Outdoor Council, Swan View Coalition, Quiet Use Coalition, Alliance for the Wild Rockies, Puget Soundkeeper Alliance, Cascadia Wildlands, Wild Fish Conservancy, Klamath Riverkeeper, Humboldt Baykeeper, Spokane Riverkeeper, Big Blackfoot Riverkeeper, Russian Riverkeeper, Heartwood, Lake Pend Oreille Waterkeeper, Southeast Alaska Conservation Council, Columbia Riverkeeper, Olympic Forest Coalition, Pacific Rivers Council, Northwest Environmental Advocat es, Washington Environm ental Council, and Conservation Northwest ("the Conservation Groups") in response to the request for public comments published in the Federal Register. See 77 Fed. Reg. 30473 (May 23, 2012). Please include these comments in the
administrative record for th is matter. Please also inform the Washington Forest Law Center and the Conservation Groups in writing of any subsequent action you take related to the regulation of stormwater discharges from logging or other forest roads.

Response
Please refer to Response 15.



# Comment ID 0268

- A1.001.001

Author Name: Jane F. Severt Elroy Zemke Organization: Wisconsin County Forests Association (WCFA) Issue Category: 18 Please accept the following comments from Wisconsin County Forests Association (WCFA) regarding EPA's proposed rule for revisions to Phase I storm water regulations, clarifying a NPDES permit is not required for forest roads.

WCFA represents the 29 coun ties in Wisconsin with county forests established under state statutes §28.10 and 28.11. Collectively our 29 counties manage nearly 2.4 million acres of forests, the largest public land base in our state.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 232 Response Please refer to Response 15.



# Comment ID 0268

- A1.001.005

Author Name: Jane F. Severt Elroy Zemke Organization: Wisconsin County Forests Association (WCFA) Issue Category: 18 Even though language contained in the proposed rule affords a great deal of uncertainty, it does enable EPA to reinforce the policy of relying on state BMP's to address water quality for forestry roads. Sustainable forestry practices on Wisconsin forests allow us to maintain forest health and supply our $18 billion timber industry with necessary raw material.

Response Please refer to Response 5. Refer also to Response 15.



# Comment ID 0269

- A1.001.001

Author Name: Chris Winter Paul Kampmeier Organization: Washington Forest Law Center and Crag Law Center (obo Northwest Environmental Defense Center et al.) Issue Category: 18 Thank you for the opportunity to comment on the U.S. Environmental Protection Agency's proposal to revise its stormwater regu lation, 40 C.F.R. § 122.26, to specify that stormwater discharges from pipes, ditches and channels along active , industrial logging roads will no longer require a National Pollutant Discharge Elimination System (NPDES) permit. The Washington Forest Law Center and the Cra g Law Center represent the Northwest Environmental Defense Center in matters related to NPDES pe rmitting of stormwater discharges from industrial logging roads. These comments are submitted on behalf of the Northwest Environmental Defense Center, Sierra C lub, American Rivers, Atlantic States Legal Foundation, Wildlands CPR, Waterkeeper Alliance, Rive r Network, Wild Salmon Center, Environmental Protection Information Center, Center for Biological Diversity, Oregon Wild, Friends of the Kalmiopsis, Public Employees for Environmental Responsibility, Oregon Coast Alliance, Kentucky Resources Council, Giffo rd Pinchot Task Force, Swan View Coalition, Rogue Riverkeeper, Alliance for the Rockies, Heartwood, Lake Pend Oreille Waterkeeper, Southeast Alaska Conservation Council, Northwest Environmental Advocates, Friends of the Wild Swan, Olympic Forest Coalition, and Amigos Bravos ("the Conservation Groups") in response to the request for public comments published in the Federal Register on September 4, 2012. See 77 Fed. Reg. 53834 (Sept. 4, 2012).

In addition to this comment letter, by courier we are sending EP A a compact disc that contains journal articles, studies, reports and other information pertinent to EPA's proposal to amend the stormwater rule to exempt logging roads from NPDES permitting. We are al so resubmitting the comments we submitted to EPA on Jun e 22, 2012, in response to EPA's May 23, 2012 Federal Register notice. See 77 Fed. Reg. 30473 (May 23, 2012).

Response Please refer to Response 15.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 233 

# Comment ID 0269

- A1.001.009

Author Name: Chris Winter Paul Kampmeier Organization: Washington Forest Law Center and Crag Law Center (obo Northwest Environmental Defense Center et al.) Issue Category: 18 Thank you for considering and responding to these comments and the comments we submitted to EPA on June 22, 2012. Please also inform the Washington Forest Law Center, the Crag Law Center, and the Conservation Groups in writing of any subsequent action you take related to the regulation of stormwater discharges from industrial logging and other forest roads. In the meantime, plea se contact me if you have any questions about these comments or if you would like to discuss these issues further.

Response Please refer to Response 15.



# Comment ID 0270

- A1.001.001

Author Name: Ostermayer G. Organization: University of Montana Issue Category: 18 Please consider these comments in response to the Environmental Protection Agency's (EPA) "Notice of Proposed Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads" (77 FR N o. 171, 53834

- 53838; Docket ID: EPA

- HQ

- OW

- 2012

- 0195; September 4, 2012).

Response Please refer to Response 15.



# Comment ID 0271

- A1.001.001

Author Name: Edman George Organization: Edman Company Issue Category: 18 Edman Company is pleased to offer the following comments to the above referenced Notice of Proposed Rulemaking ("Proposed Rul e") published by the U.S. Environmental Protection Agency ("EPA") in response to the Ninth Circuit ruling in NEDC v. Brown, 1063 F. 3d 1176 (9th Cir. 2011 ).

Edman Company is a small log chipping business located in Tacoma, Washington. We purchase logs from entities that grow timber on a rotating crop basis in the Pacific Northwest.

ResponseChapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 2 34 Please refer to Response 15.



# Comment ID 0272

- A1.001.001

Author Name: Case Michael Organization: The Westervelt Company Issue Category: 18 The Westervelt Company is pleased to offer the following comments to the above referenced Notice of Proposed Rulemaking ("Proposed Rule") publi shed by the U.S. Environmental Protection Agency ("EPA") in response to the Ninth Circuit ruling in NDEC v. Brown, 1063 F 3d 1178 (9th Cir. 2011).

The Westervelt Company is a fourth generation family owned timber and forest products company with over 500 ,000 acres of timberland under management in the U.S. south. Our company motto is "Stewards of the Land" and we take those words to heart i n everything we do.

Response Please refer to Response 15.



# Comment ID 0273

- A1.001.001

Author Name: Snyder William Organization: State of California Natural Resources Agency Issue Category: 18 Thank you the opportunity to comment on the proposed revisions to Stormwater Regulations to clarify that a National Pollutant Discharge elimination System (NPDES) Perm it is not required for stormwater discharges from logging roads.

Response Please refer to Response 1 and Response 15.



# Comment ID 0274

- A1.001.001

Author Name: Graham Owen Organization: Alaska Forest Association (AFA) Issue Category: 18 The Alaska Forest Association (AFA) is a trade association that represents the timber industry in Alaska. AFA members include loggers, towing and barging companies, road builders, manufacturing facilities, timberland owners and many businesses that provide essential services for our timber industry. Our mission is to advance the restoration, promotion and maintenance of a healthy, viable f orest products industry which contributes to the economic and ecological health of Alaska's forests and communities.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 235 Response Please refer to Response 15.



# Comment ID 0274

- A1.001.004

Author Name: Graham Owen Organization: Alaska Forest Association (AFA) Issue Category: 18 AFA also agrees with the comments provided by the State of Alaska on June 22, 2012.

Response Please refer to Response 15.



# Comment ID 0275

- A1.001.001

Author Name: Olszewski Robert Organization: Plum Creek Issue Category: 18 Plum Creek is pleased to offer the following comments to the above referenced Notice of Proposed Rulemaking ("Proposed Rule") published by the U.S. Environmental Protection Agency ("EPA") in response to the Ninth Circuit ruling in NEDC v. Brown, 1063 F.3d 1176 (91 h Cir. 2011 ).

Plum Creek is the nation's largest timberland owner with nearly seven million acres of ownership including all regions of the country with significant forestry operations. We grow and sell timber to a wide variety of forest produc t manufacturers. As a large timberland owner, we have an extensive system of forest roads on our properties that we utilize and maintain, and also sometimes have th e need to construct new roads on our lands. These roads not only serve our forestry operatio ns, but may also be used to provide access for hunters and a variety of other recreational users.

Response Please refer to Response 15.



# Comment ID 0276

- A1.001.001

Author Name: Paul DeLong Ken Johnson Organization: Wisconsin Department of Natural Resources (WDNR) Issue Category: 18 The Wisconsin Department of Natural Resources (WDNR) is an integrated natural resources agency, with responsibilities includi ng protecting water quality, managing forest lands, and enhancing wildlife habitat. In Wisconsin, administration of the National Pollution Discharge Elimination System (NPDES) permit system has been delegated to the State, and the WDNR is the responsible agency, issuing Wisconsin Pollution Discharge Elimination System (WPDES) permits.Chapter 2: Individual Comments and Responses

Response t o Public Comments: Revisions to Stormwater Regulations to Clarify that an NPDES Permit is not Required for Stormwater Discharges from Logging Roads 2

- 236 Res ponse Please refer to Response 15.



# Comment ID 0277

- A1.001.001

Author Name: O'Neill William Organization: Michigan Department of Natural Resources (MDNR) Issue Category: 18 The Michigan Department of Natural Resources' (MDNR) Forest Resources Division is responsible for forest management activities on
state forest land.

Response Please refer to Response 15.