June 22, 2012
Docket No. EPA–HQ–OW–2012–0195
U.S. Environmental Protection Agency
1200 Pennsylvania Avenue NW
Washington, DC 20460
Dear Sir or Madam:
Re: 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, 77 Fed. Reg. 30473 (May 23, 2012).
The Forest Landowners Association 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” (NOI) published by the Environmental protection Agency (EPA) at 77 Fed. Reg. 30473 (May 23, 2012).
The Forest Landowners Association (FLA), supports through advocacy, education and information, forest landowners' responsible management of private property. Through its work in Government Affairs, FLA seeks to drive public policies that grow and protect America’s private forestland. To effectively promote the rights and freedoms of the private forest landowner, FLA uses grassroots advocacy, educational programs, and campaign support to deliver an effective pro-forestry message to Congress and the Federal government, in order to educate them on their private forest landowner constituents and the impact they have on the economy.
We applaud EPA’s continued support in the NOI for its 1976 determination that water quality impacts from forest roads, and forestry generally, are best addressed through state-adopted best management practices (BMPs). 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 embarked on an uncertain administrative path. Nonetheless, given the agency’s decision, we offer the following comments to bring as much certainty as possible to the outcome.
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.
It should also be noted that upon passage of the CWA Amendments of 1987, the EPA issued guidance on the relationship of nonpoint source controls and water quality standards as part of the Water Quality Standards Handbook. The guidance states: "It is recognized that Best Management Practices, designed in accordance with a state approved process, are the primary mechanism to enable the achievement of water quality standards." It goes on to explain: "It is intended that proper installation of state approved BMPs will achieve water quality standards and will normally constitute compliance with the CWA.”
We have worked closely with state foresters over the years in developing an effective BMP programs for controlling water quality impacts from forest management activities in almost every state and private forest landowners have a track record of high compliance with these guidelines and thus the CWA. One example of the high level of compliance with state BMP’s can be found in the 2011 Silvicultural Best Management Practices Implementation and Compliance Survey recently released by the Georgia Forestry Commission (GFC). In this report the GFC randomly surveyed 187 forestry sites of which 110 were on private lands. 5711 individual BMP’s were measured with 95.3 percent being correctly implemented. This is proof positive of private forest landowner’s commitment to protecting and improving water quality from our forests and compliance with the CWA.
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 private forest landowners, please let us know. We encourage EPA to schedule a listening sessions around the country so they can hear and see firsthand the good work private forest landowners implement on their property.
Scott P. Jones
Forest Landowners Association