Notice of Opportunity To Provide Information on Existing Programs That Protect Water Quality From Forest Road Discharges, 69653-69660 [2015-28649]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 80, Number 217 (Tuesday, November 10, 2015)]
[Notices]
[Pages 69653-69660]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-28649]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OW-2015-0668; FRL-9936-78-OW]


Notice of Opportunity To Provide Information on Existing Programs 
That Protect Water Quality From Forest Road Discharges

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA) solicits public 
input and information on existing public and private sector programs 
that address stormwater discharges from forest roads. This information 
will assist EPA in responding to the remand in Environmental Defense 
Center, Inc. v. U.S. EPA, 344 F.2d 832 (9th Cir. 2003) that requires 
EPA to consider whether the Clean Water Act requires the Agency to 
regulate forest roads. This notice does not imply that EPA has made any 
decision to do so. EPA is considering the implementation, 
effectiveness, and scope of existing programs in addressing water 
quality impacts attributable to stormwater discharges from forest roads 
prior to making any decision. The Agency plans to assess a variety of 
existing programs, including federal, state, local, tribal, third party 
certifications, and combinations of these approaches, as well as 
voluntary best management practices (BMP)-based approaches. In 
preparing its response to the remand, EPA is coordinating with other 
federal agencies, and will assess whether any additional stormwater 
controls are called for, consistent with federal law, including the 
recent 2014 amendments to the Clean Water Act.

DATES: Comments must be received on or before January 11, 2016.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-
2015-0668, to the Federal eRulemaking Portal: https://www.regulations.gov. Follow the online instructions for submitting 
comments. Once submitted, comments cannot be edited or removed from 
Regulations.gov. EPA may publish any comment received to its public 
docket. Do not submit electronically any information you consider to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Multimedia submissions (audio, 
video, etc.) must be accompanied by a written comment. The written 
comment is considered the official comment and should include 
discussion of all points you wish to make. EPA will generally

[[Page 69654]]

not consider comments or comment contents located outside of the 
primary submission (i.e., on the web, cloud, or other file sharing 
system). For additional submission methods, the full EPA public comment 
policy, information about CBI or multimedia submissions, and general 
guidance on making effective comments, please visit https://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Prasad Chumble, EPA Headquarters, 
Office of Water, Office of Wastewater Management via email at 
chumble.prasad@epa.gov or telephone at 202-564-0021.

SUPPLEMENTARY INFORMATION: 

I. General Information

Applicability

    This notice does not impose requirements on any entity.

II. Background

A. Purpose

    EPA is gathering information on existing programs addressing 
stormwater discharges from forest roads to determine what additional 
measures, if any, are necessary to protect water quality. As described 
below, section 402(p)(6) of the Clean Water Act (CWA) allows EPA to 
consider a range of regulatory and non-regulatory approaches, and 
determine which stormwater discharges (if any) need controls under 
402(p)(6). Since EPA's last public notice on May 23, 2012 (77 FR 
30473), in which the Agency also solicited comments on approaches for 
addressing water quality impacts associated with forest roads, a number 
of developments have occurred, including statutory and regulatory 
changes, collection of additional water quality data, results from new 
research, new information pertaining to effectiveness of BMPs, and 
updates to federal, state, local, tribal, and other programs. 
Therefore, the Agency seeks to obtain public input and updated 
information on the implementation, effectiveness, and scope of 
approaches and programs that are currently in place for addressing 
stormwater discharges from forest roads.

B. Legal Background

    The objective of the CWA is to restore and maintain the chemical, 
physical, and biological integrity of the nation's waters. 33 U.S.C. 
1251(a). To that end, the CWA provides that the discharge of any 
pollutant by any person shall be unlawful, except in compliance with 
other provisions of the statute. The CWA provides for a permit program, 
in general, for the discharge of a pollutant from a ``point source,'' 
which is defined in section 502 of the CWA 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 animal feeding operation, or 
vessel or other floating craft, from which pollutants are or may be 
discharged.'' 33 U.S.C. 1362(14). In 1987 Congress added section 402(p) 
to the CWA, which required National Pollutant Discharge Elimination 
System (NPDES) permits for certain specified stormwater discharges and 
provided EPA with discretion to determine whether and how discharges 
from other stormwater sources should be addressed ``to protect water 
quality.''
    For the initial phase of stormwater regulation, section 402(p)(1) 
created a temporary moratorium on NPDES permits for point sources 
except for those listed in section 402(p)(2), which includes discharges 
already required to have a permit; discharges from municipal separate 
storm sewer systems serving population of 100,000 or more; and 
stormwater discharges ``associated with industrial activity.'' Congress 
did not define discharges associated with industrial activity, allowing 
EPA to define the term. For other stormwater discharges, section 
402(p)(5) directs EPA to conduct studies, in consultation with the 
states, for ``identifying those stormwater discharges or classes of 
stormwater discharges for which permits are not required''; 
``determining to the maximum extent practicable, the nature and extent 
of pollutants in such discharges''; and ``establishing procedures and 
methods to control stormwater discharges to the extent necessary to 
mitigate impacts on water quality.'' Section 402(p)(6) directs the 
Agency to issue regulations, in consultation with state and local 
officials, based on such studies. The section allows EPA flexibility in 
issuing regulations to address designated stormwater discharges and 
does not require the use of NPDES permits. Specifically, the section 
states that the regulations ``shall establish priorities, establish 
requirements for state stormwater management programs, and establish 
expeditious deadlines'' and may include ``performance standards, 
guidelines, guidance, and management practices and treatment 
requirements, as appropriate.'' 33 U.S.C. 1342(p)(6). This flexibility 
is unique to stormwater discharges regulated under section 402(p)(6) 
and differs from the requirement for NPDES permits for stormwater 
discharges listed in section 402(p)(2) of the Act.
    Prior to the 1987 Amendments, there were numerous questions 
regarding the appropriate means of regulating stormwater discharges 
through the NPDES program. These questions stemmed from serious water 
quality impacts of stormwater, the variable nature of stormwater, the 
large number of stormwater discharges, and the limited resources of 
permitting agencies. EPA undertook several regulatory actions, which 
resulted in extensive litigation, in an attempt to address these unique 
discharges.
    EPA's Silvicultural Rule (40 CFR 122.27) predates the 1987 
amendments to the CWA that added section 402(p) for stormwater 
controls. The Agency defined silvicultural point source as part of the 
Silvicultural Rule to specify which silvicultural discharges were to be 
included in the NPDES program. The rule defines silvicultural point 
source to mean any ``discernible, confined and discrete conveyance 
related to rock crushing, gravel washing, log sorting, or log storage 
facilities which are operated in connection with silvicultural 
activities and from which pollutants are discharged into waters of the 
United States,'' and further explains that ``the term does not include 
non-point source silvicultural activities such as nursery operations, 
site preparation, reforestation and subsequent cultural treatment, 
thinning, prescribed burning, pest and fire control, harvesting 
operations, surface drainage, or road construction and maintenance from 
which there is natural runoff.''
    In 1990, EPA promulgated the Phase I stormwater regulations (55 FR 
47990) (``Phase I Rule''), following the 1987 amendments which directed 
the Agency to develop regulations requiring permits for large and 
medium municipal separate storm sewer systems and stormwater 
``discharges associated with industrial activity.'' In the Phase I 
regulations EPA defined the term ``storm water discharge associated 
with industrial activity,'' which is not defined by the Act but was 
discussed in the legislative history to the 1987 amendments. In 
describing the scope of the term ``associated with industrial 
activity,'' several members of Congress explained in the legislative 
history that the term would apply if a discharge was ``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)). The Phase I Rule provided the regulatory definition of 
``associated with industrial

[[Page 69655]]

activity'' by adopting the language used in the legislative history and 
supplementing it with a description of various types of areas (for 
example, material handling sites, sites used for the storage and 
maintenance of material handling equipment, etc.) that are directly 
related to an industrial process and to industrial facilities 
identified by EPA. The Phase I regulations define the term ``storm 
water discharge associated with industrial activity'' to include 
stormwater discharges from facilities identified in the rule by 
Standard Industrial Classifications (SIC) codes. 40 CFR 122.26(b)(14). 
The Phase I Rule does not include discharges from facilities or 
activities excluded from the NPDES program under other parts of EPA's 
regulations, including the Silvicultural regulations. Id. As discussed 
above, EPA had previously specified under the Silvicultural regulations 
which silvicultural discharges were to be included in the NPDES 
program. 40 CFR 122.27. 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, consistent with the requirements of section 
122.27.
    In developing the second phase of stormwater regulations, EPA 
submitted to Congress in March 1995 a report that evaluated the nature 
of stormwater discharges from municipal and industrial facilities that 
were not already regulated under the Phase I regulations (U.S. 
Environmental Protection Agency, Office of Water. Storm Water 
Discharges Potentially Addressed by Phase II of the National Pollutant 
Discharge Elimination System Storm Water Program: Report to Congress. 
Washington, DC EPA, 1995. (833-K-94-002)). On December 8, 1999, EPA 
promulgated the Phase II stormwater regulations to address stormwater 
discharges from small municipal separate storm sewer systems and 
construction sites that disturb one to five acres. 64 FR 68722. Under 
CWA sections 402(p)(2)(E) and 402(p)(6), EPA retains the authority to 
designate additional stormwater discharges for regulation.
    The Phase II stormwater regulations were challenged in 
Environmental Defense Center v. US EPA, 344 F.3d 832 (9th Cir. 2003) 
(EDC v. EPA). In that case, petitioners contended that EPA arbitrarily 
failed to regulate discharges from forest roads under the Phase II 
rule. The court held that EPA failed to consider the petitioners' 
comments and remanded the issue to EPA ``so that it may consider in an 
appropriate proceeding Petitioner's contention that section 402(p)(6) 
requires the EPA to regulate forest roads. The EPA may then either 
accept Petitioners' arguments in whole or in part, or reject them on 
the basis of valid reasons that are adequately set forth to permit 
judicial review.'' Id. at 863.
    During several years following the decision in EDC v. EPA, EPA 
undertook research to improve the Agency's knowledge of forest road 
stormwater discharge impacts on water quality and what programs exist, 
whether voluntary or mandatory, to reduce those impacts. During the 
same period, the Northwest Environmental Defense Center initiated 
litigation concerning logging road stormwater discharges.
    In 2011, the U.S. Court of Appeals for the Ninth Circuit issued a 
decision in Northwest Environmental Defense Center v. Brown, 640 F.3d 
1063 (9th Cir. 2011) (``NEDC''), a citizen suit alleging violations of 
the CWA for unpermitted discharges of stormwater from ditches alongside 
two logging roads in state forests. The court held that because the 
stormwater runoff from the two roads in question is collected by a 
system of ditches, culverts and channels and then discharged into 
waters of the United States, there was a point source discharge of 
stormwater associated with industrial activity for which an NPDES 
permit is required.
    On May 23, 2012, EPA published a Notice in the Federal Register 
summarizing known water quality impacts related to forest roads and 
discussing existing state, tribal, and voluntary programs designed to 
address those impacts. (77 FR 30473). The Notice expressed EPA's intent 
to specify that only stormwater discharges associated with rock 
crushing, gravel washing, log sorting, and log storage are considered 
discharges associated with industrial activities, and that those would 
be the only discharges associated with silvicultural activity that 
would be subject to permitting under the stormwater regulations 
pertaining to industrial activity. The Notice also discussed the 
Agency's consideration of non-permitting approaches to address other 
stormwater discharges from forest roads.
    On December 7, 2012, EPA promulgated a final rule (77 FR 72970) to 
specify that for the purposes of assessing whether stormwater 
discharges are ``associated with industrial activity,'' the only 
facilities under the SIC code 2411 that are ``industrial'' are: Rock 
crushing, gravel washing, log sorting, and log storage. This rulemaking 
clarified that, contrary to the Ninth Circuit's decision in NEDC, 
discharges of stormwater from silviculture activities other than the 
four specifically named activities identified above do not require an 
NPDES permit. On March 20, 2013, the U.S. Supreme Court reversed the 
Ninth Circuit's ruling in NEDC, holding that discharges of stormwater 
that ran off logging roads into ditches, culverts and channels did not 
require an NPDES permit. Decker, Oregon State Forester, et al. v. 
Northwest Environmental Defense Center, 133 S.Ct 1326 (2013).
    In 2014, Congress amended section 402(l) of the Federal Water 
Pollution Control Act to effectively prohibit the use of NPDES permits 
for the discharge of runoff ``resulting from the conduct of the 
following silviculture activities conducted in accordance with standard 
industry practice: nursery operations, site preparation, reforestation 
and subsequent cultural treatment, thinning, prescribed burning, pest 
and fire control, harvesting operations, surface drainage, or road 
construction and maintenance.'' 33 U.S.C. 1342(l). In addition, the 
amendment prohibits third party lawsuits authorized by section 505(a) 
for any non-permitting program established under 402(p)(6), or for any 
other limitations applied to silviculture activities.
    In December 2014, EDC and the Natural Resources Defense Council 
filed a petition with the Ninth Circuit to compel EPA to respond, 
within six months, to the question remanded in the 2003 EDC v. EPA 
decision of whether section 402(p)(6) requires regulation of stormwater 
discharges from forest roads. Following execution of a settlement 
agreement that was filed with the court on August 26, 2015, the court 
entered an order establishing a schedule requiring EPA to issue a final 
determination by May 26, 2016.

III. Water Quality Impacts From Stormwater Discharges From Forest Roads

    The Agency's May 23, 2012 Notice summarized the research EPA had 
collected to date on the water quality impacts resulting from 
stormwater discharges from forest roads. Much of this research was 
compiled in the 2008 report ``National Level Assessment of Water 
Quality Impairments Related to Forest Roads and Their Prevention by 
Best Management Practices'' prepared by the Great Lakes Environmental 
Center, Inc. (GLEC). This document is available in the docket for 
today's notice and provides an extensive discussion on water quality 
impacts from forest road stormwater discharges, which are primarily 
erosion and sedimentation,

[[Page 69656]]

but can also include changes in stream morphology, introduction of 
chemicals and other pollutants, and degradation of aquatic habitat.
    EPA's research indicates that improperly designed, constructed, 
maintained, or decommissioned forest roads, as well as abandoned 
``legacy roads,'' \1\ can lead to a number of impacts. These impacts 
can include increased sediment load and changes in stream network 
hydrology, subsequently causing physical, biological, and ecological 
impacts to water quality. EPA also recognizes that not all forest roads 
cause water quality impacts and that within a basin the majority of the 
water quality impacts caused by discharges from forest roads may be 
attributed to a relatively small subset of forest roads (see, for 
example, Nelson et al., 2011; Fly et al., 2010; Luce and Black, 2001; 
Luce and Black, 1999).
---------------------------------------------------------------------------

    \1\ Abandoned or ``legacy roads'' refers to forest roads built 
prior to the establishment of current design standards, which are 
not being used but may still be sources of sediment.
---------------------------------------------------------------------------

    The focus of this notice is to solicit input on the implementation 
and effectiveness of existing public and private programs, whether 
voluntary or legally binding and enforceable, in mitigating water 
quality impacts from stormwater discharges from forest roads, rather 
than to receive additional comments or materials on water quality 
impacts of these discharges. Specifically, EPA seeks input on the 
implementation, effectiveness, and scope of existing federal, state, 
local, tribal and private sector programs. The Agency also seeks input 
on additional approaches and regulations, if necessary, to mitigate 
negative impacts on water quality from forest road stormwater 
discharges.

IV. EPA's May 23, 2012 Federal Register Notice

    On May 23, 2012, EPA published a Notice that sought comment on 
potential approaches for addressing water quality impacts resulting 
from stormwater discharges from forest roads. In response to that 
Notice, EPA received over 100 comment letters. Some comments pointed to 
existing programs suggesting that a national regulation addressing 
discharges from forest roads is unnecessary because existing state and 
tribal programs are sufficient. Others asserted that existing federal, 
state, and tribal programs are insufficient to protect water quality.
    As discussed above, EPA is prohibited from requiring NPDES permits 
for stormwater discharges from forest roads associated with defined 
``silvicultural activities'' as a result of the 2014 amendment to 
section 402(l) of the CWA. However, authority to regulate these 
discharges in other ways and using other methods remains, including 
under section 402(p)(6). As noted, section 402(p)(6) of the CWA allows 
EPA flexibility in issuing regulations to address designated stormwater 
discharges and does not require the use of NPDES permits. Specifically, 
the section states that the regulations shall establish priorities, 
establish requirements for state stormwater management programs, and 
establish expeditious deadlines and may include ``performance 
standards, guidelines, guidance, and management practices and treatment 
requirements, as appropriate.'' 33 U.S.C. 1342(p)(6).
    In assessing whether regulation is required under section 402(p)(6) 
of the CWA, EPA is considering the effectiveness of existing programs 
in addressing water quality impacts attributable to stormwater 
discharges from forest roads, including federal, state, local, tribal, 
third-party certifications, and combinations of these approaches, as 
well as voluntary BMP-based approaches. In this notice, EPA requests 
information on these and other means currently in place for addressing 
the water quality impacts of stormwater discharges from forest roads or 
certain portions of forest roads. EPA also requests information on 
implementation and lessons learned from experience with existing 
programs.

V. Key Considerations

    In assessing how best to manage stormwater discharges from forest 
roads, EPA recognizes that any effective program should be informed by 
several considerations. It is EPA's view that there are four key 
considerations for managing stormwater discharges as described later in 
this notice: (1) The advantage of leveraging existing strategies that 
work, including existing effective federal, state, local, tribal, 
private, and voluntary BMP-based programs; (2) the utility of 
addressing site-specific factors; (3) the need to prioritize actions; 
and (4) the benefits of accountability measures.
    Forest road stormwater management programs vary across the country 
in response to state or regional factors. EPA is working with federal 
agencies, states, and tribes as well as the private sector to 
understand their programs for managing stormwater discharges from 
forest roads. The Agency is interested in engaging other interested 
stakeholders in the process as well. EPA provided an overview of 
existing public and private programs to manage stormwater discharges 
from forest roads in its May 23, 2012 Federal Register Notice, but 
understands that there may have been improvements and additions since 
that time. With this Notice, EPA seeks updated information on existing 
programs.
    A range of guidelines are available to assist forest owners, 
managers, and operators in designing and maintaining forest roads and 
selecting the appropriate BMPs to control stormwater discharges. For 
example, EPA has issued national guidance to assist forest owners and 
operators to protect lakes and streams from polluted runoff that can 
result from forestry activity and, in particular, from improperly built 
or maintained forest roads (USEPA, 2005). Other federal agencies as 
well as states have also developed guidance documents to protect water 
quality from forest road discharges (For example USFS (2012) and 
Georgia Forestry Commission (2009)). In addition, industry has 
developed standards for voluntary certification programs (For example, 
NCASI (2012) and SFI (2015)). BMP-based approaches allow forest road 
owners and operators to tailor management practices to site-specific 
factors such as topography, road design, soils, geologic factors, road 
use, and climate. The diversity of the forest road networks, the 
different classes of roads, the different local physical conditions, 
and the broad range of road conditions and uses indicate the importance 
of site-specific BMP selection and implementation to protect water 
quality.
    EPA also intends to consider the complexity and vastness of the 
Nation's forest road network and diversity of the forested landscape. 
EPA seeks additional information that would assist the Agency in 
evaluating various approaches, including, for example: Differences 
among forest uses; particularly vulnerable features of the road network 
(for example, stream crossings); critical phases (for example, road 
closure or decommissioning); ownerships of different forest tracts; 
types of ownership, including public, private, and tribal-owned lands; 
and forest road conditions, type, and usage. The selection of 
appropriate management strategies and BMPs can vary based on site-
specific factors, including topography, road design, soils, geologic 
factors, road use, road maintenance schedule, and climate. EPA also 
would like information on the effectiveness of properly implemented 
BMPs in protecting water quality from forest road stormwater 
discharges. EPA solicits information on what approaches have been or 
could be applied nationally regardless of forest road type

[[Page 69657]]

and ownership, as well as which approaches might be best targeted to 
specific locations. For instance, performance-based management 
strategies may be more effective and less burdensome than approaches 
that rely upon prescriptive solutions.
    EPA recognizes the importance of prioritization in allocating 
resources. For example, protecting beneficial uses such as fish 
spawning or public water supply may be a high priority in some areas 
while reducing impacts to waters listed as impaired or included in an 
existing Total Maximum Daily Load (TMDL) might be a high priority in 
other areas. EPA requests information on how existing programs identify 
and determine where to allocate resources to prioritize high quality, 
or pristine, waters or alternatively, impaired waters, or how to 
prioritize focus on certain forest roads that may be more problematic 
than others.
    Finally, accountability is a key element of a successful approach 
ensuring stormwater discharges from forest roads are properly 
implemented and managed across the country and that reasonable progress 
is made in addressing inadequately managed stormwater discharges from 
forest roads. EPA seeks information regarding existing programs, such 
as adaptive management approaches, that include accountability measures 
such as monitoring, reporting, necessary updates, and consequences for 
failure to adhere to the objectives of the management program.

VI. Approaches for Managing Stormwater Discharges From Forest Roads

    As described in further detail below, many owners and operators of 
forest lands are employing a variety of effective approaches to manage, 
operate, comply with and maintain forest roads to control stormwater 
discharges. Depending on the jurisdiction, owners or operators use 
federal requirements, BMP state program requirements, as well as tribal 
requirements, or follow the standards of voluntary programs, including 
forest stewardship and sustainability initiatives. Some of these 
approaches are used in combinations that may provide a more holistic 
approach, which may be more protective and effective.

A. Examples of Existing State and Tribal Programs

    Many states and some tribes have programs in place that function to 
prevent or minimize forest road stormwater discharge impacts on water 
quality. These programs generally establish standards for the design of 
forest roads and BMPs. State and tribal programs vary in their 
substantive level of protection, specificity and enforceability, and 
generally fall into three categories: regulatory, non-regulatory, and 
combination programs. Information available to EPA indicates that 15 
states have established mandatory BMPs for forest roads and the 
remaining 35 states allow for voluntary implementation of BMPs to 
control stormwater discharges from forest roads (GLEC, 2008). In some 
cases the failure to implement voluntary measures can result in 
enforcement where noncompliance leads to a significant risk to water 
quality. For example, the California program resembles a permit program 
and is mandatory, whereas Florida relies primarily on voluntary 
compliance with state-approved road BMPs. The discussion below 
describes two existing state programs and briefly describes several 
existing tribal programs to illustrate the different approaches used to 
address forest road impacts.
    Maine provides an example of a state that employs a non-regulatory 
forest management program. In a voluntary program, the state typically 
develops state-wide forestry BMPs (including measures for forest roads) 
and recommends that the forest owners implement the BMPs. Generally, 
there are no permit mechanisms or enforcement actions, but many states 
with voluntary programs use a hands-on approach that emphasizes 
education, outreach, and training for forest owners, loggers, and 
others (Maine DEC, 2012).
    Maine's forestry BMP program is administered through the Maine 
Forest Service (MFS). Broadly, the program consists of voluntary BMPs 
implemented by the landowner, monitoring of the BMPs by MFS, and, if 
needed, a regulatory ``safety net.'' The primary focus of the MFS 
program is training and outreach. MFS works to develop and revise BMPs, 
the most recent set being published in 2004. MFS then offers frequent 
training courses across the state and online to promote understanding 
of the principles and techniques in selecting and installing 
appropriate BMPs. Deficiencies in the implementation of BMPs (as 
identified by follow-up monitoring or other mechanisms) may lead to 
specialized training sessions (Maine DEC, 2012).
    The MFS also conducts field monitoring of forestry BMPs. In 
collaboration with other stakeholders, a state-wide monitoring protocol 
was developed and has been implemented annually at selected sites since 
2006. As noted in GLEC (2008), surveys have shown that BMPs are, for 
the most part, being consistently implemented and installation rates 
have improved substantially over time. When the need for improvements 
in BMP application are identified, MFS works cooperatively with the 
landowner to address the issue (Maine DEC, 2012).
    Maine has a number of state laws that address sediment discharges 
to surface waters, including discharges due to timber operations. As 
needed, MFS works with other state agencies to identify problems and 
address them in a regulatory manner. Most issues are resolved 
cooperatively before a regulatory solution is needed (Maine DEC, 2012).
    North Carolina has a combination approach for its forest management 
program, as it employs elements of both regulatory and non-regulatory 
programs. In 1990, the state developed administrative rules (Forest 
Practice Guidelines Related to Water Quality (FPGs)). Additionally, 
other state laws or interagency agreements can apply to forestry 
activities, including the location, construction, and maintenance of 
forest roads in wetlands (North Carolina FS, 2012).
    The North Carolina Forest Service (NCFS) conducts thousands of 
forestry compliance inspections each year and has found high FPG 
compliance rates on a statewide basis. More focused implementation-
specific monitoring has been conducted several times since 2000 by the 
NCFS and has also shown high implementation rates for forest road BMPs, 
despite their voluntary nature. State staff also provide technical 
assistance in designing and implementing BMPs and in assessing water 
quality. North Carolina revised its BMP manual in 2006 and included 
detailed discussions about all aspects of managing forest roads. The 
state has implemented a number of training and education programs in 
concert with demonstration projects to promote proper BMP usage. North 
Carolina agencies also coordinate to ensure that forestry operations 
are compliant with state requirements, that inspections are properly 
conducted, and that enforcement protocols are appropriately established 
(North Carolina FS, 2012).
    Across the country, over 300 tribal reservations are significantly 
forested, and tribal lands include 17.9 million acres of forest land, 
including 7.7 million acres of productive timberland (ITC 2007). Tribal 
governments in partnership with the U.S. government dedicate 
substantial resources to improving tribal forest management. Much of 
the responsibility for managing forests on tribal lands across the 
country

[[Page 69658]]

is carried out by the Bureau of Indian Affairs (BIA) with the 
involvement of tribal governments. The National Indian Forest Resources 
Management Act (NIFRMA), Title III, Public Law 101- 630, directs the 
Secretary of the Interior, in consultation with the affected tribes, to 
obtain an independent assessment of the status of forest resources on 
tribal lands and their management.
    NIFRMA requires the development of forestry management plans under 
which the forests are managed in accordance with BMPs, as approved 
through an interdisciplinary team consisting of forestry experts from 
academia, the private sector, forest-managing tribes and the U.S. 
Department of Agriculture Forest Service. The Tribal Forest Protection 
Act (Pub. L. 108-278) authorizes the Secretary of Agriculture and the 
Secretary of the Interior to enter into an agreement or contract with 
tribes to carry out projects to protect forests on tribal lands. 
Protection of such land is particularly important for tribes because 
they pass their land on from generation to generation. This helps to 
ensure future availability of natural resources, including healthy 
forests and clean water.
    Many tribes have taken on significant roles in sustainable forest 
management. For example, the Menominee Indian Tribe of Wisconsin 
manages the forested portions of the reservation for long-term 
sustainability through the Menominee Tribal Enterprises (MTE), which 
has received certifications for sustainable management from the Forest 
Stewardship Council (FSC)-approved programs conducted by the Scientific 
Certification and the Rainforest Alliance. According the MTE Millwork 
Web site,\2\ certification is awarded to forest operations that are 
well managed in accordance with environmentally and socially 
responsible guidelines. The Northern Cheyenne Tribe requires that all 
new roads be obliterated and seeded after forest harvesting activities. 
Similarly, the Blackfeet Nation has a no net new road miles policy, 
which requires the closure of an existing road before a new forest road 
may be constructed.
---------------------------------------------------------------------------

    \2\ https://www.mtemillwork.com/.
---------------------------------------------------------------------------

    EPA requests comments regarding the implementation, effectiveness 
and scope of state, local, and tribal programs, both mandatory and 
voluntary, in preventing or minimizing forest road environmental 
impacts on water quality. EPA also seeks feedback on which elements are 
regarded as necessary for an effective program (for example, an 
inventory of forest roads; logger training and outreach; technical 
assistance; requirements for best management practices for forest 
roads; guidelines for prioritizing and addressing water quality 
concerns related to stormwater discharges from existing forest roads; 
accountability measures; public involvement and the opportunity for 
public input into the development of the state program; a program for 
monitoring or auditing to assess program compliance; a program for 
monitoring the effectiveness of the roads program in minimizing water 
quality impacts; and an adaptive management process to revise BMPs 
based on effectiveness monitoring) and how much flexibility is 
appropriate for state and tribal programs.

B. Examples of Existing Federal Programs

    Federal agencies, such as the U.S. Department of Agriculture Forest 
Service (FS) and the Bureau of Land Management (BLM), have established 
programs for the management of stormwater discharges from forest roads 
on federal lands. These agencies manage large tracts of forested lands, 
including lands that are actively being disturbed by road building, 
road maintenance, logging operations, unauthorized public and 
recreational use or other tasks, and have generally demonstrated sound 
environmental stewardship in managing these lands.
    FS has developed a number of programs related to managing 
discharges from forest roads to improve water quality. For example, FS 
is revising its Forest Service Manual and Forest Service Handbook 
directives (FSM 2500 \3\ and FSH 2509-19 \4\) on BMPs for water quality 
protection on National Forest Service lands. These revisions would 
establish national BMPs and associated monitoring protocols on National 
Forest Service lands. 70 FR 25824. As part of this effort, FS has 
developed a National Core BMP Technical Guide \5\ intended to improve 
FS performance and accountability in managing water quality consistent 
with the CWA and State water quality programs. This Guide establishes 
national core BMPs that address 11 subject areas affecting water 
quality, including ``Road Management Activities.'' The Road Management 
Activities BMP provisions address: Travel Management Planning and 
Analysis; Road Location and Design; Road Construction and 
Reconstruction; Road Operations and Maintenance; Temporary Roads; Road 
Storage and Decommissioning; Stream Crossings; Snow Removal and 
Storage; Parking and Staging Areas; Equipment Refueling and Servicing; 
and Road Storm Damage Surveys. Each BMP draws on administrative 
directives that guide FS management of roads on NFS land. FS directives 
and BMP Guide allow for the use of state, tribal and local requirements 
and information to develop site-specific BMPs. They also provide 
monitoring of BMP implementation and effectiveness using national core 
BMP monitoring protocols and reporting systems. Based on monitoring 
results, these mechanisms provide for adaptive management in assessing 
implementation, effectiveness, and adjusting practices as needed to 
protect water quality. FS has enhanced its Road Preconstruction 
Handbook on Design (FSH 7709.59 Chapter 40) as well as the 
Transportation Structures Handbook on Hydraulics and Watershed 
Protection (FSH 7709.59b CH 60) to include design considerations for 
the construction and reconstruction of forest roads which minimize road 
and drainage impacts to the watershed. FS Technology and Development 
Centers have created a number of publications to assist designers when 
addressing road/water interactions https://www.fs.fed.us/eng/pubs/.
---------------------------------------------------------------------------

    \3\ Watershed and Air Management, Chapter 2530--Water Resource 
Management, 2532--Water Quality Management.
    \4\ National Best Management Practices, Chapter 10--National 
Core Best Management Practices.
    \5\ National Best Management Practices for Water Quality 
Management on National Forest System Lands, Volume 1: National Core 
BMP Technical Guide, United States Department of Agriculture, Forest 
Service, FS-990a, April 2012.
---------------------------------------------------------------------------

    FS has also created the Watershed Condition Framework, an approach 
to assessing watersheds in national forests and grasslands, 
implementing protective measures and providing for ongoing 
monitoring.\6\ FS has developed another program, known as the Legacy 
Roads and Trails Program, to identify legacy roads in national forests 
and grasslands, and to minimize the discharge of stormwater by 
decommissioning or upgrading them.\7\ FS also publishes documents for 
specific regions or types of forests that contain information on forest 
road construction and maintenance, as well as information on 
appropriate BMPs.\8\
---------------------------------------------------------------------------

    \6\ https://www.fs.fed.us/sites/default/files/Watershed_Condition_Framework.pdf.
    \7\ https://www.fs.fed.us/restoration/Legacy_Roads_and_Trails/.
    \8\ See, for example, https://www.fs.usda.gov/Internet/FSE_DOCUMENTS/stelprdb5362512.pdf and https://www.fs.usda.gov/Internet/FSE_DOCUMENTS/stelprdb5399662.pdf.
---------------------------------------------------------------------------

    FS has also developed a suite of tools for the identification and 
prioritization of road segments at risk for contributing

[[Page 69659]]

to water quality problems.\9\ These tools operate at scales of detail 
ranging from using corporate road databases and digital elevation data 
to using detailed GPS surveys. These tools have been applied in 
watershed sediment load reduction plans for waters listed as impaired 
under the CWA \10\ and in forest restoration projects under the 
Collaborative Forest Landscape Restoration Program in the states of 
Idaho, Montana,\11\ and California. FS maintains an applied science 
program on road-related sediment risks to support all of the above 
efforts (see, for example, Luce et al., 2001; Switalski et al., 2004).
---------------------------------------------------------------------------

    \9\ See, for example, https://www.fs.fed.us/GRAIP/.
    \10\ See, for example, https://water.epa.gov/polwaste/nps/success319/id_bear.cfm.
    \11\ See, for example, https://www.fs.fed.us/GRAIP/downloads/case_studies/WatershedStudies_LoloHelenaFlatheadNFs_SWCC_2014%20Final%20Report.pdf
.
---------------------------------------------------------------------------

    BLM is a significant owner and manager of forests and woodlands on 
federal lands as well, primarily in the western U.S. and Alaska. 
Similar to FS, a full suite of activities are authorized and managed on 
BLM forests and woodlands, including timber harvesting, hazardous fuel 
reduction treatments, recreation, fish and wildlife conservation, oil 
and gas activities, and grazing. Authorized uses in forests and 
woodlands, such as timber harvesting, often include road construction 
and maintenance, which are broadly governed by policies, standards, and 
right of way agreements that ensure proper design and upkeep.\12\ The 
BLM's Land Use Planning Handbook, which includes guidance for the 
development of BLM land use plans developed under section 202 of the 
Federal Land Policy and Management Act (FLPMA) and implementation of 
other BLM actions, provides broad agency direction for BLM to use BMPs 
to meet the standards and goals of the CWA, to address various 
protection measures to mitigate impacts to human health concerns, 
ecosystem health, riparian areas, and overall watershed conditions, and 
to meet state and local water quality requirements.\13\ One recent 
example on how BLM has incorporated this guidance into the planning 
process for management of lands that include forest roads can be found 
in Appendix I of the recently released western Oregon Draft Resource 
Management Plan/Environmental Impact Statement (Appendix I).\14\
---------------------------------------------------------------------------

    \12\ https://www.blm.gov/wo/st/en/prog/more/forests_and_woodland.html.
    \13\ https://www.blm.gov/style/medialib/blm/ak/aktest/planning/planning_general.Par.65225.File.dat/blm_lup_handbook.pdf.
    \14\ https://www.blm.gov/or/plans/rmpswesternoregon/deis.php.
---------------------------------------------------------------------------

    One example of multiple agencies coordinating to implement BMPs in 
a particular region of forests is the Northwest Forest Plan under the 
Aquatic Conservation Strategy. The recently released ``Northwest Forest 
Plan Interagency Regional Monitoring, 20-Year Report, Status and Trend 
of Watershed Condition'' summarizes the results of the 20-year 
interagency effort to implement an array of protective measures 
including BMPs to maintain watershed health in that region.\15\ 
Finally, BLM has partnered with the Society of America Foresters (SAF) 
to foster proper forest management techniques on BLM lands 
nationwide.\16\
---------------------------------------------------------------------------

    \15\ https://www.reo.gov/monitoring/reports/20yr-report.
    \16\ https://www.blm.gov/style/medialib/blm/wo/Planning_and_Renewable_Resources/0.Par.97719.File.dat/BLM_MOU_WO-200-2009-03.pdf.
---------------------------------------------------------------------------

    EPA welcomes comments on the implementation, effectiveness and 
scope of these federal programs and how they work in coordination with 
state and tribal programs to assist EPA in developing its response to 
the 2003 remand in EDC v. EPA, but emphasizes that this is not the 
forum for evaluating specific elements of FS or BLM programs.

C. Examples of Third-Party Certification Programs

    In recent years, forestry organizations, such as the Sustainable 
Forestry Initiative (SFI) and Forest Stewardship Council (FSC), have 
developed non-governmental third-party certification programs to 
address water quality impacts from forest roads. A wide variety of 
certification programs exist worldwide, but most have common elements 
such as standards for responsible forest management and harvesting, 
third-party audits, documentation, and publication. These certification 
programs address many aspects of forest management, but they 
specifically include management practices for mitigating water quality 
impacts resulting from stormwater discharges from forest roads. Also, 
these programs typically avoid developing a single set of standards and 
acknowledge necessary regional variation in BMPs.
    Certification programs are, at their core, market- or consumer-
driven. Certification is incorporated into a chain-of-custody process 
that permits a producer of consumer products (for example, paper, 
lumber, and furniture) to apply a ``green'' or ``eco-friendly'' label 
to those products as recognition of responsible sourcing and to 
ultimately influence consumer purchasing choices that translate into 
increased sales. Some producers of end products may only accept raw 
materials that meet certification program requirements; for example, a 
paper mill might not accept raw materials that do not have 
certification. The recent rise in prominence of certification programs 
coincides with other studies (for example, Ice et al., 2010) showing 
increases in the implementation rates of BMPs over the same period.
    SFI grew out of a program developed by the American Forest & Paper 
Association and relies on a system of principles and objectives. A set 
of BMP-related requirements must be met for forest owners, loggers, and 
others to attain SFI's certification for forest fiber sourcing. 
Performance measures focus on adherence to applicable water quality 
laws and installation of BMPs, with performance criteria that include 
developing an overall program for certification and compliance, 
monitoring of BMPs during all phases of forestry activities, mapping of 
water resources, and recordkeeping. Third-party audits (typically 
conducted annually) verify the certification process. This program is 
also already a central element in many of the states' forestry training 
programs and also includes outreach to landowners and support for 
various research efforts.
    FSC's program places an emphasis on conservation, as well as social 
and economic criteria. Similar to SFI, FSC's program relies on a series 
of overarching principles and more specific performance criteria. One 
such criterion specifies that forest owners must develop written plans 
to address erosion and other impacts associated with forest operations. 
Specific guidelines for forest roads include minimizing erosion, 
avoiding water crossings, and minimizing habitat fragmentation. FSC 
offers two types of certification: one for forest managers and another 
for entities involved in the intermediate and end uses of the wood 
products.
    Like the state and federal programs, these programs are revised 
over time. For example, in 2015, SFI revised the standards that guide 
their certification program; the new standards specifically mention 
managing water quality impacts resulting from the construction and use 
of forest roads. Data also suggest that BMP implementation rates are 
substantially higher in forests that participate in certification 
programs (Texas Forest Service, 2011).
    EPA requests comments on the implementation, effectiveness and 
scope

[[Page 69660]]

of the elements of these third-party certification programs that 
address runoff from forest roads. EPA also welcomes comments from the 
organizations administering these programs. In particular, EPA seeks 
comment on how programs such as these fit with or complement other 
programs; for example, whether and to what extent these industry or 
non-governmental programs fill gaps in state and tribal programs.

VII. Request for Comments and Data

    EPA encourages public comments to inform EPA's upcoming decision as 
to whether there is a need for additional regulation of stormwater 
discharges from forest roads. Requests for comment can be found 
throughout this notice in the sections where they are discussed. This 
section specifically requests comment on the issues below. To the 
extent possible, EPA requests that comments provide concrete examples 
or quantitative data.
    1. For purposes of the discussion in this notice, EPA uses the term 
``forest road'' to mean a road located on forested land, and the term 
``logging road'' to mean a forest road that is used to support logging 
activities. That is, as used in this notice, logging roads are a subset 
of forest roads. However, the Agency has not established regulatory 
definitions of ``forest road,'' ``logging road,'' or ``forested land'' 
and welcomes comment on whether and how EPA should define these terms. 
EPA is also interested in the way in which states, tribes, and other 
federal agencies currently define them. EPA recognizes that some forest 
roads are built initially to support logging activities but later serve 
other purposes that may or may not continue to include support for 
logging activities. EPA requests comment on the way in which states, 
tribes, and other federal agencies distinguish among such forest roads.
    2. EPA seeks comment on the implementation, effectiveness, and 
scope of existing federal, state, local, tribal, and other programs in 
addressing stormwater discharges from forest roads. EPA encourages 
submittal of specific information (for example, BMP implementation 
rates, effectiveness of implemented BMPs to protect water quality, 
pollutant reduction studies, audit results, and examples of adaptive 
management).
    3. EPA requests comments on what specific elements of a forest road 
program are most important to ensure it is effective and protective of 
water quality. For example, forest road programs may include an 
inventory of forest roads; a requirement for BMPs; a systematic 
planning process for prioritizing and addressing water quality concerns 
related to stormwater discharges from existing roads; an accountability 
measure; an opportunity for public involvement in the development and 
management of the program; water quality monitoring to assess 
effectiveness of the program; and/or an adaptive management process to 
revise BMPs based on effective monitoring.
    4. EPA also invites comments on what additional measures, 
consistent with federal law, could be implemented in existing programs 
to increase water quality protection from forest roads stormwater 
discharges where necessary.

IX. References

    A list of references cited in this notice is available at https://www.regulations.gov/ under Docket ID No. EPA-HQ-OW-2015-0668.

Fly, C., Grover-Wier, K., Thornton, J., Black, T., Luce, C. 2010 
Bear Valley Road Inventory (GRAIP) Report In Support of the Bear 
Valley Category 4b Demonstration. US Department of Agriculture, 
Forest Service, Boise National Forest. 54 pp.
Georgia Forestry Commission. 2009. Georgia's Best Management 
Practices for Forestry. May 2009.
Great Lakes Environmental Center (GLEC). 2008. National Level 
Assessment of Water Quality Impairments Related to Forest Roads and 
Their Prevention by Best Management Practices: Final Report. 
December 4, 2008. By Douglas Endicott.
Ice, G.G., E. Schilling, and J. Vowell. 2010. Trends for forestry 
best management practice implementation. Journal of Forestry 
108:267-273.
Intertribal Timber Council (ITC), 2007. National Overview of Tribal 
Forestry. Proceedings in Trust and Transition: Perspectives on 
Native American Forestry. April 30, 2007. University of Washington.
Luce, C.H. and T.A. Black. 1999. Sediment Production from Forest 
Roads in Western Oregon. Water Resources Research, Vo. 35, No. 8 p. 
2561-2570.
Luce, C.H. and T.A. Black. 2001. Effects of Traffic and Ditch 
Maintenance on Forest Road Sediment Production. V64-V74, Proceedings 
of the Seventh Federal Interagency Sedimentation Conference, 25-29 
March 2001, Reno, NV.
Luce, C. H., B. E. Rieman, J. B. Dunham, J. L. Clayton, J. G. King, 
and T. A. Black (2001), Incorporating Aquatic Ecology into Decisions 
on Prioritization of Road Decommissioning, Water Resources Impact, 
3(3), 8-14.
Maine Department of Conservation (DEC). Comment letter on EPA's May 
23, 2012 Notice of Intent. June 19, 2012. By Doug Denico. Document 
ID EPA-HQ-OW-2012-0195-0170.
National Council for Air and Stream Improvement (NCASI). 2012. 
Assessing the Effectiveness of Contemporary Forest Best Management 
Practices (BMPs): Focus on Roads. Special Report 12-01. January 
2012. By Dr. G.G Ice and Dr. E.B. Schilling.
Nelson, N., Cissel, R., Black, T., Luce, C. 2011. Monitoring Road 
Decommissioning in the Mann Creek Watershed: Post-storm Report 
Payette National Forest. US Department of Agriculture, Forest 
Service, Rocky Mountain Research Station. 33 pp.
North Carolina Forest Service (FS). 2012. Comment letter on EPA's 
May 23, 2012 Notice of Intent. June 21, 2012. By Wib Owen. Document 
ID EPA-HQ-OW-2012-0195-0100.
Sustainable Forestry Initiative (SFI). 2015. SFI 2015-2019 Standards 
and Rules: Standards, Rules for Label Use, Procedures and Guidance. 
January 2015.
Switalski, T. A., J. A. Bissonette, T. H. DeLuca, C. H. Luce, and M. 
A. Madej (2004), Benefits and impacts of road removal, Frontiers in 
Ecology and the Environment, 2(1), 21-28.
Texas Forest Service. 2011. Voluntary Implementation of Forestry 
Best Management Practices in East Texas: Results from Round 8 of BMP 
Implementation Monitoring. December 2011 By H. Simpson, C. Coup, and 
C. Duncan.
United States Environmental Protection Agency (USEPA). 2005. 
National Management Measures to Control Nonpoint Pollution from 
Forestry. EPA-841-B-05-001. Washington, DC: USEPA Office of Water. 
April 2005.
United States Forest Service (USFS). 2012. National Best Management 
Practices for Water Quality Management on National Forest System 
Lands, Volume 1: National Core BMP Technical Guide, United State 
Department of Agriculture, Forest Service, FS-990a, April 2012.

    Dated: October 31, 2015.
Kenneth J. Kopocis,
Deputy Assistant Administrator, Office of Water.
[FR Doc. 2015-28649 Filed 11-9-15; 8:45 am]
 BILLING CODE 6560-50-P