[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.

           *       *       *       *       *       *       *


                                  
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