[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.