[House Report 112-684]
[From the U.S. Government Publishing Office]
112th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 112-684
======================================================================
SILVICULTURE REGULATORY CONSISTENCY ACT
_______
September 20, 2012.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Mica, from the Committee on Transportation and Infrastructure,
submitted the following
R E P O R T
[To accompany H.R. 2541]
[Including cost estimate of the Congressional Budget Office]
The Committee on Transportation and Infrastructure, to whom
was referred the bill (H.R. 2541) to amend the Federal Water
Pollution Control Act to exempt the conduct of silvicultural
activities from national pollutant discharge elimination system
permitting requirements, having considered the same, report
favorably thereon with an amendment and recommend that the bill
as amended do pass.
CONTENTS
Page
Purpose of the Legislation....................................... 2
Background and Need for Legislation.............................. 2
Hearings......................................................... 6
Legislative History and Consideration............................ 6
Committee Votes.................................................. 6
Committee Oversight Findings..................................... 7
New Budget Authority and Tax Expenditures........................ 7
Congressional Budget Office Cost Estimate........................ 7
Performance Goals and Objectives................................. 8
Advisory of Earmarks............................................. 8
Federal Mandate Statement........................................ 8
Preemption Clarification......................................... 8
Advisory Committee Statement..................................... 8
Applicability to the Legislative Branch.......................... 8
Section-by-Section Analysis of Legislation....................... 8
Changes in Existing Law made by the Bill, as Reported............ 9
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Silviculture Regulatory Consistency
Act''.
SEC. 2. SILVICULTURAL ACTIVITIES.
Section 402(l) of the Federal Water Pollution Control Act (33 U.S.C.
1342(l)) is amended by adding at the end the following:
``(3) Silvicultural activities.--
``(A) NPDES permit requirements for silvicultural
activities.--The Administrator shall neither require a
permit under this section, nor directly or indirectly
require any State to require a permit under this
section, for a discharge resulting from the conduct of
the following silvicultural activities: nursery
operations, site preparation, reforestation and
subsequent cultural treatment, thinning, prescribed
burning, pest and fire control, harvesting operations,
surface drainage, or road use, construction, and
maintenance, from which there is runoff.
``(B) Permits for dredged or fill material.--Nothing
in this paragraph exempts the conduct of a
silvicultural activity resulting in the discharge of
dredged or fill material from any permitting
requirement under section 404.''.
Purpose of the Legislation
The purpose of H.R. 2541 is to exempt the conduct of
silvicultural activities from National Pollutant Discharge
Elimination System permitting requirements under the Federal
Water Pollution Control Act.
Background and Need for Legislation
The Clean Water Act
In 1972, Congress passed the Federal Water Pollution
Control Act Amendments of 1972 (commonly known as the Clean
Water Act or the CWA; 33 U.S.C. Sec. 1251 et seq.). The
objective of the CWA is to restore and maintain the chemical,
physical, and biological integrity of the nation's waters. The
primary mechanism for achieving this objective is the CWA's
prohibition on the discharge of any pollutant from a point
source to a jurisdictional waterbody without a National
Pollutant Discharge Elimination System (NPDES) permit. (See CWA
Sec. Sec. 301, 402.)
The CWA defines a ``point source'' 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. This term does not include
agricultural stormwater discharges and return flows from
irrigated agriculture.'' (See CWA Sec. 502(14).)
The Environmental Protection Agency (EPA) has the authority
to regulate the discharge of pollutants from point sources
either through general permits or through individual permits.
NPDES permits specify limits on what pollutants may be
discharged from point sources and in what amounts. Under the
CWA, 46 states currently have authorized programs and are
authorized to implement NPDES permits and enforce permits. The
EPA manages the CWA program in the remaining states and
territories.
NPDES permits are the basic regulatory tool of the CWA. The
EPA or an authorized state may issue compliance orders, or file
civil suits against those who violate the terms of a permit. In
addition, in the absence of Federal or state action,
individuals may bring a citizen suit in United States District
Court against those who violate the terms of an NPDES permit,
or against those who discharge without a valid permit.
Forest roads under the Clean Water Act
In 1976, the EPA adopted administrative regulations
governing the NPDES permit program, including the
``Silvicultural Rule,'' which defined forestry activities. (See
40 CFR Sec. 122.27 (Silvicultural activities).) In these
regulations, the EPA identified those forestry activities the
Agency considered to be ``silvicultural point sources'' subject
to NPDES permit program, and forestry activities the Agency
considered to be ``nonpoint sources,'' not subject to
regulation under the CWA. (Id.)
The EPA defined ``silvicultural point sources'' as ``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.'' (40 CFR Sec. 122.27(b)(1).) The rule
went on to specifically exclude ``nonpoint source silvicultural
activities, including harvesting, site-preparation, pest and
disease control, thinning, cultural treatment, prescribed
burning, reforestation, and road construction and maintenance
from which there is runoff from precipitation events.'' (Id.)
In the preamble, the EPA noted that these nonpoint source
silvicultural activities are effectively addressed under State
best management practice programs. (41 Fed. Reg. 24709, 24710
(June 18, 1976).) The EPA amended the final phrase of the
exclusion in 1980 to read ``from which there is natural
runoff,'' stating at the time that they intended no change in
meaning. (45 Fed. Reg. 33447 (1980).)
In 1987, Congress adopted a variety of amendments to the
CWA in the Water Quality Act of 1987. One of the more
significant amendments was establishment of a two-phase process
to regulate stormwater discharges under the NPDES program. (CWA
Sec. 402(p).) In these amendments, Congress intended to clarify
the EPA's existing responsibility to regulate point source
stormwater discharges of pollutants. In CWA section 402(p)(2),
Congress identified specific discharge categories requiring
NPDES permits in Phase 1. Among the activities subject to the
mandatory NPDES permit requirement are ``discharges associated
with industrial activities.'' (Id.)
The EPA developed regulations to implement new stormwater
NPDES permitting requirements under the NPDES program. The EPA
adopted Phase 1 regulations in 1990, including an extensive
definition of ``discharges associated with industrial
activity'' in 40 CFR Sec. 122.26(b)(14). (55 Fed. Reg. 47990,
48063 (November 16, 1990).) A commenter on the proposed
rulemaking for the Phase 1 rule pointed out that logging is
defined as a nonpoint source under the Silvicultural Rule.
In response, the EPA added to the Phase I rule an exception
from the definition of industrial activity for all activities
excluded from the NPDES permit requirement in 40 CFR Part 122.
(See 40 CFR Sec. 122.26(b)(14) (``The term does not include
discharges from facilities or activities excluded from the
NPDES program under this part 122.''.) In addition, the EPA
expressly stated in the preamble to its Phase 1 regulations
that the definition of ``storm water discharges associated with
industrial activity'' specifically excluded activities listed
in 40 CFR 122.27, namely, the Silvicultural Rule. (See 55 Fed.
Reg. at 48011.)
The EPA issued NPDES regulations for Phase 2 stormwater
discharges in 1999. (64 Fed. Reg. 68722 (December 8, 1999).) In
the Phase 2 stormwater regulations, the EPA rejected a comment
to include forest roads as a regulated discharge, based on the
Silvicultural Rule.
Since promulgating the Silvicultural Rule in 1976, the EPA
had never required an NPDES permit for nonpoint source
silvicultural activities. For the past 35 years, under the
Silvicultural Rule, the management of forest roads across 755
million acres of public, private, State, and tribal forests in
the United States has been guided by State laws using best
management practices and as nonpoint sources under the CWA.
This long-standing, flexible policy has worked because it
recognized that the responsible management of a working forest
varies widely depending on location and applies a variety of
best management practices to address stormwater runoff.
Litigation on the Silvicultural Rule and responses
During the 1990s, activist groups unsuccessfully argued
that forest roads and other forestry activities in National
forests are point sources requiring NPDES permits. For example,
in 1998, the U.S. Court of Appeals for the 8th Circuit found
that, under the Silvicultural Rule, NPDES permits are not
required for forest roads, and held that ``EPA regulations do
not include the logging and road building activities cited by
the Wildlife Association in the narrow list of silvicultural
activities that are point sources requiring NPDES permits.''
(Newton County Wildlife Association v. Rogers, 141 F.3d 803,
810 (8th Cir. 1998) (citing the Silvicultural Rule).)
In September 2006, the Northwest Environmental Defense
Center (NEDC) sued the Oregon State Forester, the Oregon Board
of Forestry, and four timber purchasers for failure to obtain
NPDES permits on logging roads in the Tillamook State Forest.
They alleged that roads used for timber harvest in the
Tillamook State Forest are ``point sources'' requiring NPDES
permits under the CWA. Industry groups intervened and the EPA
filed amicus briefs at the district court and at the circuit
court, defending its regulations. The U.S. District Court for
the District of Oregon dismissed the lawsuit on March 1, 2007.
(NEDC v. Brown, 476 F.Supp.2d 1188 (D.Or. 2007).) The Court
held that forest roads, with their ditches and culverts for
dispersal of stormwater, are within the meaning of the EPA
Silvicultural Rule defining ``road construction and maintenance
from which there is natural runoff'' as nonpoint sources. NEDC
appealed to the U.S. Court of Appeals for the 9th Circuit.
Breaking with 35 years of practice, the 9th Circuit, on
August 17, 2010, reversed the District Court and ruled that the
EPA lacks authority to designate forest roads as nonpoint
sources, and that forest roads using stormwater management
measures, such as ditches, are point sources requiring NPDES
permits. (NEDC v. Brown, 617 F.3d 1176 (9th Cir. 2010).) The
9th Circuit further ruled that logging is an ``industrial
activity'' under the EPA's stormwater regulations and therefore
``logging roads'' require NPDES permits. The EPA defended its
regulations in its amicus brief on the appeal to the 9th
Circuit, but the 9th Circuit ignored the EPA's explanation.
The 9th Circuit denied the defendants' request for
rehearing and reissued its decision with an additional holding
regarding jurisdiction on May 17, 2011. (NEDC v. Brown, 640
F.3d 1063 (9th Cir. 2011).) The 9th Circuit said the
Silvicultural Rule does not exempt logging roads with
stormwater management measures that convey the runoff and
discharge it into streams and rivers that are subject to CWA
jurisdiction. Following issuance of the revised decision, the
9th Circuit denied a motion to stay the decision while the
parties sought review by the U.S. Supreme Court. In September,
2011, the defendants filed petitions for certiorari with the
Supreme Court.
The 9th Circuit ruling upends 35 years of EPA policy
treating forestry activities and forest roads as ``nonpoint
sources,'' best regulated under State developed best management
practices, and exposes Federal, State, tribal, and private
forest owners and operators to significant economic harm,
private citizen lawsuits, and uncertainty.
In response to the 9th Circuit's decision, on July 14,
2011, Representative Herrera Beutler introduced H.R. 2541, the
Silviculture Regulatory Consistency Act, to affirm and preserve
the EPA's longstanding policy that forest roads should be
regulated as nonpoint sources using State developed best
management practices. Then in December, 2011, Congress and the
Administration enacted legislation, modeled after H.R. 2541, as
part of the Fiscal Year 2012 Consolidated Appropriations Act,
delaying the 9th Circuit's permit requirement from taking
effect until October 1, 2012.
On May 23, 2012, the EPA published in the Federal Register
a Notice of Intent announcing two related actions. First, the
Agency announced its intent to clarify in its stormwater
regulations that a mandatory permit is not required for forest
roads used for timber harvest. Second, the EPA announced a
separate study to evaluate stormwater discharges from forest
roads to determine whether any additional agency action is
necessary.
On May 24, 2012, the Solicitor General filed a brief with
the Supreme Court, arguing that the 9th Circuit decision was
wrong, because the court failed to defer to the EPA's
interpretation of its own regulations under the CWA. The
Solicitor also noted that Congress and the EPA are best able to
resolve the issue and the Supreme Court should not review the
9th Circuit's decision. The Solicitor General further observed
that any rules that the EPA would adopt would be subject to
judicial review and delay, which raises the point that this
leaves legislative action by Congress as the only way to
provide finality and certainty on this issue without continued
litigation.
On June 25, 2012, the Supreme Court announced that it will
review the 9th Circuit's decision in NEDC v. Brown (now called
Decker v. Northwest Environmental Defense Center, No. 11-338,
and is consolidated with another petition filed in response to
the case, Georgia-Pacific West, Inc. v. Northwest Environmental
Defense Center, No. 11-347). The Court will likely render a
final decision in the spring of 2013. The outcome is uncertain.
The State of Oregon and several forest products companies
(defendants in the case), twenty-six State Attorneys General,
counties and industry associations from across the Nation have
urged the Supreme Court to review the decision.
Meanwhile, on September 4, 2012, the EPA proposed revisions
to its Phase I stormwater regulations, in an attempt to clarify
that stormwater discharges from logging roads do not constitute
stormwater discharges associated with industrial activity and
that an NPDES permit is not required for these stormwater
discharges. (See 77 Fed. Reg. 53834 (September 4, 2012).) This
rule, when finalized, will be subject to judicial review and
could result in further delay in achieving finality and
certainty on this issue.
Although the Supreme Court has agreed to review the 9th
Circuit decision, and the EPA has proposed to address the issue
through a rulemaking, legal and economic uncertainty will
continue to surround this issue. Many believe a permanent
legislative fix is needed to end the uncertainty, and that
Congress is best positioned to address the 9th Circuit's
decision with legal certainty through permanent legislation.
Congressional action to enact such legislation will preserve
the EPA's long-standing policy that forest roads are nonpoint
sources best regulated under State developed best management
practices, and will resolve the legal and economic uncertainty
surrounding the 9th Circuit's decision once and for all.
Legislation will also help ensure that forests continue to
provide important public benefits, like good paying jobs,
renewable consumer products, water quality, outdoor
recreational opportunities, and habitat for fish and wildlife.
Hearings
No hearings were held on H.R. 2541.
Legislative History and Consideration
On July 14, 2011, Representative Jaime Herrera Beutler of
Washington introduced H.R. 2541, the Silviculture Regulatory
Consistency Act, a bill to exempt the conduct of silvicultural
activities from National Pollutant Discharge Elimination System
permitting requirements under the Federal Water Pollution
Control Act. On August 1, 2012, the Committee on Transportation
and Infrastructure met in open session to consider H.R. 2541,
and ordered the bill reported favorably to the House by voice
vote with a quorum present.
An amendment was offered in Committee by Representative
Larsen of Washington, which was adopted by voice vote. The
amendment clarified that the activities exempt from permitting
are limited to the silvicultural activities specified in the
bill.
Committee Votes
Clause 3(b) of rule XIII of the House of Representatives
requires each committee report to include the total number of
votes cast for and against on each record vote on a motion to
report and on any amendment offered to the measure or matter,
and the names of those members voting for and against. There
were no record votes taken in connection with consideration of
H.R. 2541, or ordering the bill reported. A motion to order
H.R. 2541 reported favorably to the House was agreed to by
voice vote with a quorum present.
Committee Oversight Findings
With respect to the requirements of clause 3(c)(1) of rule
XIII of the Rules of the House of Representatives, the
Committee's oversight findings and recommendations are
reflected in this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives does not apply where a cost estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974 has been timely submitted prior to the filing of the
report and is included in the report. Such a cost estimate is
included in this report.
Congressional Budget Office Cost Estimate
With respect to the requirement of clause 3(c)(3) of rule
XIII of the Rules of the House of Representatives and section
402 of the Congressional Budget Act of 1974, the Committee has
received the enclosed cost estimate for H.R. 2541 from the
Director of the Congressional Budget Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, August 9, 2012.
Hon. John L. Mica,
Chairman, Committee on Transportation and Infrastructure,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 2541, the
Silviculture Regulatory Consistency Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Susanne S.
Mehlman.
Sincerely,
Robert A. Sunshine
(For Douglas W. Elmendorf, Director).
Enclosure.
H.R. 2541--Silviculture Regulatory Consistency Act
H.R. 2541 would prohibit the Environmental Protection
Agency (EPA) from requiring a point source discharge permit (a
type of permit issued under the National Pollutant Discharge
Elimination System) for water discharges from the following
silvicultural activities: nursery operations; site preparation;
reforestation; timber thinning; prescribed burning; pest and
fire control; harvesting operations; surface drainage; or road
use, construction, and maintenance.
CBO estimates that enacting this legislation would result
in no significant impact on the federal budget because EPA is
expected to make this change through regulation within the next
12 months. Pay-as-you-go procedures do not apply to H.R. 2541
because enacting the bill would not affect direct spending or
revenues.
H.R. 2541 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would impose no costs on state, local, or tribal governments.
The CBO staff contact for this estimate is Susanne S.
Mehlman. This estimate was approved by Theresa Gullo, Deputy
Assistant Director for Budget Analysis.
Performance Goals and Objectives
With respect to the requirement of clause 3(c)(4) of rule
XIII of the Rules of the House of Representatives, the
performance goal and objective of this legislation is to exempt
the conduct of silvicultural activities from National Pollutant
Discharge Elimination System permitting requirements.
Advisory of Earmarks
Pursuant to clause 9 of rule XXI of the Rules of the House
of Representatives, the Committee is required to include a list
of congressional earmarks, limited tax benefits, or limited
tariff benefits as defined in clause 9(e), 9(f), and 9(g) of
rule XXI of the Rules of the House of Representatives. No
provision in the bill includes an earmark, limited tax benefit,
or limited tariff benefit under clause 9(e), 9(f), or 9(g) of
rule XXI.
Federal Mandate Statement
The Committee adopts as its own the estimate of Federal
mandates prepared by the Director of the Congressional Budget
Office pursuant to section 423 of the ``Unfunded Mandates
Reform Act'' (P.L. 104-4).
Preemption Clarification
Section 423 of the Congressional Budget Act of 1974
requires the report of any Committee on a bill or joint
resolution to include a statement on the extent to which the
bill or joint resolution is intended to preempt state, local,
or tribal law. The Committee states that H.R. 2541 does not
preempt any state, local, or tribal law.
Advisory Committee Statement
No advisory committees within the meaning of section 5(b)
of the Federal Advisory Committee Act are created by this
legislation.
Applicability of Legislative Branch
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act (P.L. 104-1).
Section-by-Section Analysis of Legislation
Section 1. Short title
Section 1 of H.R. 2541 states that the Act may be cited as
the ``Silviculture Regulatory Consistency Act.''
Section 2. Silvicultural activities
H.R. 2541 amends Section 402(l) of the Clean Water Act,
which provides limitations on the requirement to obtain an
NPDES permit for certain types of discharges. Section 2 of the
bill adds an additional limitation on the requirement to obtain
an NPDES permit, by adding a new Paragraph (3) at the end of
Section 402(l).
New Paragraph (3)(A) provides that the EPA Administrator
shall neither require an NPDES permit, nor directly or
indirectly require any State to require an NPDES permit, for a
discharge resulting from the conduct of the following
silvicultural activities: nursery operations, site preparation,
reforestation and subsequent cultural treatment, thinning,
prescribed burning, pest and fire control, harvesting
operations, surface drainage, or road use, construction, and
maintenance, from which there is runoff. The Committee adopted
an amendment in a Committee meeting held on August 1, 2012,
which clarified that the silvicultural activities exempt from
permitting are limited to those activities specified in
Paragraph (3)(A).
Amended Paragraph (3)(B) specifies that the NPDES
permitting limitation added by the bill does not exempt the
conduct of a silvicultural activity resulting in the discharge
of dredged or fill material from any applicable permitting
requirement under section 404 of the CWA (pertaining to permits
for the discharge of dredged or fill material into
jurisdictional waters).
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italic and existing law in which no change is
proposed is shown in roman):
FEDERAL WATER POLLUTION CONTROL ACT
* * * * * * *
TITLE IV--PERMITS AND LICENSES
* * * * * * *
NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM
Sec. 402. (a) * * *
* * * * * * *
(l) Limitation on Permit Requirement.--
(1) * * *
* * * * * * *
(3) Silvicultural activities.--
(A) NPDES permit requirements for
silvicultural activities.--The Administrator
shall neither require a permit under this
section, nor directly or indirectly require any
State to require a permit under this section,
for a discharge resulting from the conduct of
the following silvicultural activities: nursery
operations, site preparation, reforestation and
subsequent cultural treatment, thinning,
prescribed burning, pest and fire control,
harvesting operations, surface drainage, or
road use, construction, and maintenance, from
which there is runoff.
(B) Permits for dredged or fill material.--
Nothing in this paragraph exempts the conduct
of a silvicultural activity resulting in the
discharge of dredged or fill material from any
permitting requirement under section 404.
* * * * * * *