[House Report 113-607]
[From the U.S. Government Publishing Office]
113th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 113-607
======================================================================
SILVICULTURE REGULATORY CONSISTENCY ACT OF 2013
_______
November 12, 2014.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Shuster, from the Committee on Transportation and Infrastructure,
submitted the following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany H.R. 2026]
[Including cost estimate of the Congressional Budget Office]
The Committee on Transportation and Infrastructure, to whom
was referred the bill (H.R. 2026) to amend the Federal Water
Pollution Control Act to exempt certain silvicultural
activities from national pollutant discharge elimination system
permitting requirements, and for other purposes, having
considered the same, report favorably thereon without amendment
and recommend that the bill do pass.
CONTENTS
Page
Purpose of Legislation........................................... 2
Background and Need for Legislation.............................. 2
Hearings......................................................... 4
Legislative History and Consideration............................ 5
Committee Votes.................................................. 5
Committee Oversight Findings..................................... 5
New Budget Authority and Tax Expenditures........................ 5
Congressional Budget Office Cost Estimate........................ 5
Performance Goals and Objectives................................. 6
Advisory of Earmarks............................................. 6
Duplication of Federal Programs.................................. 6
Disclosure of Directed Rule Makings.............................. 7
Federal Mandate Statement........................................ 7
Preemption Clarification......................................... 7
Advisory Committee Statement..................................... 7
Applicability to Legislative Branch.............................. 7
Section-by-Section Analysis of Legislation....................... 7
Changes in Existing Law Made by the Bill, as Reported............ 8
Additional Views................................................. 10
Purpose of Legislation
The purpose of H.R. 2026 is to exempt certain 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 and enforce NPDES 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 section 122.26(b)(14) of title 40 of the Code of
Federal Regulations. (55 Fed. Reg. 47990, 48063 (November 16,
1990).)
In the 1990 regulation, 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 Part
122 of title 40 of the Code of Federal Regulations. (See 40
C.F.R. 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 section 122.27 of title 40 of the Code of Federal
Regulations, namely, the Silvicultural Rule. (See 55 Fed. Reg.
at 48011.) However, EPA also stated that it intended to examine
the scope of the Silvicultural Rule in a future study of
stormwater discharges. (Id.)
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 or logging 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, including forest or logging roads.
For the past 37 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.
Litigation on the Silvicultural Rule and Responses
Since the 1990s, the issue of whether discharges from
forest roads and other forestry activities should be covered by
the NPDES requirements of the Clean Water Act has been heavily
litigated. In several of these cases, the courts sided with the
Federal government's position that stormwater associated with
nonpoint source forestry activities designated in the
Silvicultural Rule were not covered by the NPDES requirements
of the Act.
However, in 2011, the Federal Court of Appeals for the
Ninth Circuit ruled (in Northwest Environmental Defense Center
v. Brown) that discharges of stormwater from ditches alongside
logging roads were ``associated with industrial activities,''
and therefore were required to have an NPDES permit.
The Federal government disagreed with the interpretation of
the Ninth Circuit, and maintained that those discharges from
logging roads (previously excluded from the CWA permitting
requirements under 40 C.F.R. Sec. 122.27) are not associated
with industrial activities, but are nonpoint source
silvicultural activities that do not require a permit. The
Supreme Court overturned the decision of the 9th Circuit by a
7-to-1 vote (in the now-renamed case Decker v. Northwest
Environmental Defense Center). In this case, the Supreme Court
ruled that EPA's interpretation that defined certain discharges
related to silvicultural operations as nonpoint sources, and
therefore, not subject to the CWA's permit requirements, was
permissible, and remanded the decision to the Ninth Circuit.
While the Supreme Court was deliberating Decker, EPA
proposed to clarify Federal regulations by specifying those
silvicultural-related activities that the agency considered
``associated with industrial activities'' that would require
NPDES permits for stormwater runoff. That rulemaking, finalized
on November 30, 2012 (77 Fed. Reg. 72970), reaffirmed those
specific activities related to silvicultural operations that
have long been subject to the permitting requirements of the
CWA (e.g., rock crushing, gravel washing, log sorting, or log
storage facilities.) At the same time, the agency clarified
that discharges of stormwater from silvicultural activities
other than the four activities specifically identified above do
not require a NPDES permit. A lawsuit challenging the December
2012 rulemaking was filed in January 2013 (Northwest
Environmental Defense Center v. Jackson, No. 13-70057, 9th
Cir.), and was withdrawn in November 2013.
In light of the litigation and regulatory actions, which
resulted in uncertainty in the regulatory status of forest
roads under CWA, the sponsors of H.R. 2026 introduced
legislation to statutorily (and permanently) exempt those
nonpoint source activities that were identified in the
Silvicultural Rule from the NPDES requirements of the CWA.
Hearings
No hearings were held on H.R. 2026.
Legislative History and Consideration
On May 16, 2013, Representative Jaime Herrera Beutler of
Washington introduced H.R. 2026, the Silviculture Regulatory
Consistency Act of 2013, a bill to amend the Federal Water
Pollution Control Act to exempt certain silvicultural
activities from National Pollutant Discharge Elimination System
permitting requirements.
On October 29, 2013, the Committee on Transportation and
Infrastructure met in open session to consider H.R. 2026, and
ordered the bill reported favorably to the House by voice vote
with a quorum present.
In the 112th Congress, the Committee on Transportation and
Infrastructure ordered a virtually identical bill (H.R. 2541)
reported favorably to the House by voice vote.
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. 2026, or ordering the bill reported. A motion to order
H.R. 2026 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. 2026 from the
Director of the Congressional Budget Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, November 5, 2013.
Hon. Bill Shuster, 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. 2026, the
Silviculture Regulatory Consistency Act of 2013.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Susanne S.
Mehlman.
Sincerely,
Douglas W. Elmendorf.
Enclosure.
H.R. 2026--Silviculture Regulatory Consistency Act of 2013
H.R. 2026 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.
According to EPA, notwithstanding ongoing litigation
regarding silvicultural activities, a December 2012 rule
regarding permitting for stormwater discharges from logging
roads largely addresses the changes to current law proposed
under this bill. Thus, CBO estimates that enacting this
legislation would result in no significant impact on the
federal budget. Pay-as-you-go procedures do not apply to H.R.
2026 because enacting the bill would not affect direct spending
or revenues.
H.R. 2026 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 certain 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.
Duplication of Federal Programs
Pursuant to section 3(j) of H. Res. 5, 113th Cong. (2013),
the Committee finds that no provision of H.R. 2026 establishes
or reauthorizes a program of the federal government known to be
duplicative of another federal program, a program that was
included in any report from the Government Accountability
Office to Congress pursuant to section 21 of Public Law 111-
139, or a program related to a program identified in the most
recent Catalog of Federal Domestic Assistance.
Disclosure of Directed Rule Makings
Pursuant to section 3(k) of H. Res. 5, 113th Cong. (2013),
the Committee estimates that enacting H.R. 2026 does not
specifically direct the completion of any specific rule makings
within the meaning of section 551 of title 5, United States
Code.
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. 2026 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. 2026 provides the short title of the
bill. The section states that the Act may be cited as the
``Silviculture Regulatory Consistency Act of 2013.''
Section 2. Silvicultural activities
The legislation intends to codify the EPA's Silvicultural
Rule by amending section 402 of the CWA to exclude specific
forest management activities and forest roads from permits and
other regulation under the point source stormwater program.
H.R. 2026 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), entitled
``Silvicultural Activities,'' at the end of section 402(l).
New paragraph (3)(A) provides that the EPA Administrator
shall neither require an NPDES permit or otherwise promulgate
regulations under this section, nor directly or indirectly
require any state to require an NPDES permit, for a discharge
of stormwater runoff 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, and road use, construction, and
maintenance, from which there is runoff. The legislation does
not affect the EPA's requirement for permits for silvicultural
point sources, namely discernible, confined, and discrete
conveyances related to rock crushing, gravel washing, log
sorting, and log storage facilities that are operated in
connection with silvicultural activities and from which
pollutants are discharged into jurisdictional waters, and does
not alter the current regulatory treatment of discharges that
have long been regulated under existing industrial stormwater
regulations, such as EPA's Multi-Sector General Permit for
Industrial Stormwater as it pertains to the timber products
sector. The legislation also does not alter existing
requirements related to construction activities for currently
regulated facilities.
New 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, 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 not require a permit or otherwise
promulgate regulations under this section or
directly or indirectly require any State to
require a permit under this section for a
discharge of stormwater runoff resulting from
the conduct of the following silviculture
activities: nursery operations, site
preparation, reforestation and subsequent
cultural treatment, thinning, prescribed
burning, pest and fire control, harvesting
operations, surface drainage, and road use,
construction, and maintenance.
(B) Permits for dredged or fill material.--
Nothing in this paragraph exempts a
silvicultural activity resulting in the
discharge of dredged or fill material from any
permitting requirement under section 404.
* * * * * * *
ADDITIONAL VIEWS
The stated intent of H.R. 2026 is to return Clean Water Act
permitting of silvicultural operations around forest roads to
the same standards that applied before recent court decisions
created uncertainty about which standards should be used.
Before court actions, a Clean Water Act permit was not required
for 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. Permits were
required for activities that involved rock crushing, gravel
washing, log sawing and log storage. That standard has worked
for many years, and, as a cosponsor of H.R. 2026, I support
continuing that standard.
However, the Environmental Protection Agency (EPA) has
informed the Committee that the language in H.R. 2026 could
create legal ambiguity on what should and should not be covered
with a Clean Water Act permit. EPA further indicates that
returning to the language contained in similar legislation
passed by the House in the 112th Congress, H.R. 2541, would
address this concern. Clarification that the intent of the bill
is simply to return to the old standards may need to be made
should this bill advance further in the legislative process.
The bill's sponsors have consistently indicated that the
intent of this bill is to return to the long-standing
silviculture rule used by the EPA. I support that effort and I
am hopeful that any ambiguity in the bill's drafting can be
addressed before it is signed into law.
Rick Larsen.