Statement: Silviculture in the Clean Water Act
Statement of David P. Tenny
President and CEO, National Alliance of Forest Owners
House Committee on Transportation and Infrastructure and Committee on Agriculture
To consider reducing the regulatory burdens posed by the case National Cotton Council v. EPA(6th Cir. 2009) and to review related draft legislation
February 16, 2011
I. Introduction
The National Alliance of Forest Owners (NAFO) is pleased to submit a statement to the House Committee on Transportation and Infrastructure and Committee on Agriculture on the proposed general NPDES permit issued by Environmental Protection Agency (EPA) that will affect private forestry and the numerous public benefits private forests provide.
NAFO is an organization of private forest owners committed to promoting Federal policies that protect the economic and environmental values of privately-owned forests at the national level. NAFO membership encompasses more than 79 million acres of private forestland in 47 states. NAFO was incorporated in March 2008 and has been working aggressively since to sustain the ecological, economic, and social values of forests and to assure an abundance of healthy and productive forest resources for present and future generations.
NAFO’s members are the nation’s leaders in sustainable forest stewardship and recognize the fundamental role they play in supplying the nation with forest products, clean air and water, open space, wildlife habitat, recreation, and more.
II. Private forests provide jobs for millions of Americans.
According to a 2009 study, private forests in the United States support over 2.4 million jobs, $87 billion in payroll, and $115 billion in contribution to the gross domestic product. Forests and the manufacturing they support are key employers in many states. For instance, they support 22,000 jobs in Oklahoma, 87,000 in Florida, 52,000 in Minnesota, and 25,000 in West Virginia.
II. Private forests and the jobs they provide are most effectively conserved by ensuring that forestry remains an economically viable land use.
Private working forests and the jobs they support depend upon reliable markets and a reasonable and predictable regulatory environment for continued viability. The U.S. has experienced sustained growth in its forest resources in concert with an ever-increasing demand for renewable forest products. This is attributable at its core to the fact that viable markets for forest products keep forestland economic compared to other uses, spurring investment in forest management and limiting forest conversion to other land uses that realize a greater economic return.[i] When existing markets for their products are strong, or when new markets like energy emerge, forest owners are able to invest in tree planting and forest health treatments which help maintain the private forest land base, keep private forests economically competitive with other land uses, and maintain family-waged jobs in the forestry sector
In addition to markets, economic viability depends on a regulatory environment that ensures sustainability within a cost structure that encourages forests as a land use. In the U.S., private forestry operations are governed by a carefully tailored set of laws, regulations, and non-regulatory policies at the federal, state and local level in addition to voluntary, third-party certifications. The resulting framework has developed over many years and is now mature and adapted to resources conditions and needs of individual jurisdictions.[ii] The effectiveness of this framework has made the United States a world leader in sustainable forest practices.
The Federal government should take actions to encourage viable markets for forest products and maintain a regulatory framework that encourages forestry as a viable land use that will continue to provide good paying jobs in rural communities and provide multiple public benefits for all Americans.
III. Silviculture’s long standing treatment under the Clean Water Act as a non-point source helps protect water quality while ensuring that forestry is an economically viable land use.
As noted previously, private forestry operations are governed by a carefully tailored set of laws, regulations, and non-regulatory policies at the federal, state and local level. One of those laws is the Clean Water Act (CWA).
Section 301(a) of the CWA prohibits the “discharge of any pollutant by any person” into waters of the United States unless the discharge is authorized by an NPDES permit issued under CWA § 402. See 33 U.S.C. §§ 1311(a) and 1342. The CWA defines “discharge of a pollutant” as “any addition of any pollutant to navigable waters from any point source.” Id. § 1362(12) (emphasis added). Thus, in the absence of a point source, no NPDES permit is required, even where such nonpoint source activities result in the introduction of pollutants into waters of the United States. See Nat’l Wildlife Fed’n v. Gorsuch, 693 F.2d 156, 165 (D.C. Cir. 1982); Nat’l Wildlife Fed’n v Consumer Power Co., 862 F.2d 580, 587 (6th Cir. 1988).
For over thirty years, EPA has considered forest pesticide use to be nonpoint source activity not subject to NPDES permitting. See, e.g., 40 C.F.R. §§ 122.3(e), 122.27(b)(1); 41 Fed. Reg. 24,709, 24,710 (June 18, 1976). In fact, EPA promulgated a specific definition for “silvicultural point source” in its NPDES regulations to include only four silvicultural activities. That definition specifically excludes silvicultural “pest control” from the definition of point source:
Silvicultural point source means 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. The term does not include nonpoint source silvicultural activities such as nursery operations, site preparations, reforestation and subsequent cultural treatment thinning, prescribed burning, pest and fire control, harvesting operations, surface drainage, or road construction and maintenance from which there is natural runoff. 40 C.F.R. § 122.27(b)(1) (underlined emphasis added).
In the 1976 preamble to its silvicultural rule, EPA explained that “only discharges from four activities related to silviculture enterprises, rock crushing, gravel washing, log sorting and log storage facilities, are considered point sources and thus subject to the NPDES permit program.” 41 Fed. Reg. 24,709, 24,710 (June 18, 1976). This definition was further codified by EPA in 40 C.F.R. § 122.3(e) (“The following discharges do not require NPDES permits: . . . Any introduction of pollutants from non point-source agricultural and silvicultural activities . . . but not discharges from . . . silvicultural point sources as defined in § 122.27.”).
After the Department of Justice defended the regulation throughout the 1990’s from attacks on its applicability to forest roads and other silvicultural activities, EPA affirmed its regulatory definition in 2003, explaining that its silvicultural rule is “clear on its face” in that it identifies an exclusive list of the four silvicultural activities that are considered “point sources.” EPA General Counsel Memorandum, Interpretive Statement and Guidance Addressing the Effect of Ninth Circuit Decision in League of Wilderness Defenders v. Forsgren on Application of Pesticides and Fire Retardants, Robert E. Fabricant, General Counsel, at 3 (Sept. 3, 2003) (“2003 Interpretive Statement”) (listing rock crushing, gravel washing, log sorting, and log storage facilities which are operated in connection with silvicultural activities). The 2003 Interpretative Statement explained “that where a definition declares what it means, it excludes any meaning not stated.” Id. (internal quotations omitted). In addition to § 122.27, the 2003 Interpretative Statement explained that 40 C.F.R. § 122.3(e) “makes it clear that discharges from forest lands do not require NPDES permits except ‘silvicultural point sources’ as defined by 40 C.F.R. § 122.27.” Id. The Statement also noted that “Congress expressly delegated to EPA the power to define ‘nonpoint source’ in the context of silviculture in order to address the appropriate pollutant controls for silvicultural activities.” Id. at 4. In sum, the 2003 Interpretive Statement concluded that “EPA intends to continue to follow its long-standing interpretation of 40 C.F.R. § 122.27 as excluding silvicultural pest and fire control activities from the definition of point source under the Act. Therefore, such activities will not require a NPDES permit.” Id. A copy of the 2003 Interpretative Statement is enclosed for your convenience.
Best Management Practices (BMPs) have a proven track record of achieving desired results.[iii] The EPA should strive to support the existing system to avoid unnecessary regulatory costs with no corresponding marginal environmental benefit. Such additional costs discourage re-investment in forest management, reduce the overall health of the forests, and, in many cases, the ability of forests to compete favorably with other non-forest land uses. EPA policy should demonstrate a cognizance that maintaining forests as forests is one of the best defenses for water quality.
A. Application of forest pest control within EPA labeling guidelines should not need an additional permit.
America’s private forest owners engage in a variety of pest control activities to manage and protect their forest lands. Most pest control involves herbicides, which in general are less toxic than insecticides and other pesticides. Much of silvicultural pest control is terrestrial and targeted toward competing vegetation. Vegetation management, particularly in immature tree stands, is a vital silvicultural tool, both to control non-native and invasive species and to reduce vegetative competition. Tree growth lost to competition early in the life of a forest stand persists throughout the timber rotation, the economic and environmental effect of which lasts decades.
Silvicultural pest control adheres to both the EPA-approved label requirements and to State-specific BMPs designed to prevent the unintended application of pesticides to waters. In addition, many forest landowners participate in third-party certification programs, such as the Sustainable Forestry Initiative and the Forest Stewardship Council, which include pest control requirements that are subject to third party audits. Moreover, it has been EPA interpretation since 1972 that NPDES permits are not required for any pesticide application that is consistent with a product label approved by EPA under the Federal Insecticide, Fungicide, and Rodenticide Act of 1972 (FIFRA). (Note, 1972 is also the year that Congress enacted the Clean Water Act.) In 2006, EPA adopted regulations memorializing this interpretation after the U.S. Court of Appeals for the Ninth Circuit disagreed and ruled that Congress mandated redundant regulation. See EPA, Application of Pesticides to Waters of the Untied States in Compliance With FIFRA, 71 Fed. Reg. 68,483 (Nov. 27, 2006).
However, those 2006 regulations were also challenged in several cases that ended up before the U.S. Court of Appeals for the Sixth Circuit. That court, in National Cotton Council v. EPA, 553 F.3d 927 (6th Cir. 2009), adopted the Ninth Circuit’s view of congressional direction for redundant regulation of pesticides, but did not address or modify the silvicultural rule nor direct EPA to modify its long-standing regulation or the 2003 Interpretative Statement. Unfortunately, it appears that there is some lingering confusion regarding the affect of that decision. While the National Cotton Council decision requires NPDES permits for point source discharges of pesticides, the Sixth Circuit did not hold, or in any way indicate, that EPA’s long-standing interpretation of forest pest control as a non-point source activity is invalid, or otherwise require EPA to change its interpretation.
In National Cotton Council, the Sixth Circuit held that biological pesticides and chemical pesticide residuals are “pollutants” within the CWA’s definition of that term (found at 33 U.S.C. § 1362(6)), and that point source discharges of such pollutants would be subject to NPDES permit requirements. The 2006 rule before the Sixth Circuit hinged on EPA’s interpretation of the statutory definition of “pollutant” and did not implicate the issues underlying 40 C.F.R. § 122.27 and EPA’s long-standing interpretations of that rule, i.e. that nonpoint source discharges like forest pest control are exempt from NPDES permitting. In fact, the preamble to the 2006 rule expressly recognized EPA’s definition of silvicultural point source and made clear that the issues raised in the 2003 Interpretive Statement regarding silvicultural pest control were “different” from those issues addressed by the 2006 rule and later analyzed by the Sixth Circuit. See 71 Fed. Reg. at 68,489 and n.3. Nothing in the 2006 rule suggested EPA was in any way abandoning its prior interpretation of the silvicultural rule. In summary, the issues related to 40 C.F.R. §§ 122.27 and 122.3(e) and the 2003 Interpretive Statement were simply not before the Sixth Circuit. Accordingly, there is no mandate in National Cotton Council for EPA or the states to now redefine forest pest control as a “point source” activity.
For over thirty years, EPA has considered forest pest control to be non-point source activity not subject to National Pollution Discharge Elimination System (NPDES) permitting. In response to the deadline of April 9, 2011, mandated by the Sixth Circuit for permitting of pesticide discharges to water of the United States, the EPA’s draft permit appears to cast doubt on this longstanding EPA interpretation by either ignoring or glossing over its key legal foundations. NAFO filed extensive comments on the draft permit, available online at http://nafoalliance.org/wp-content/uploads/NAFO-comments-on-NPDES-pesticide-permit.pdf. NAFO suggested to EPA that they refine the draft permit to explicitly affirm that forest pest control is a non-point source activity that does not require NPDES permit coverage.
B. Forest roads are necessary to keep working forests as forests, and existing laws and regulations protect water quality.
Forest roads are one of the forest management activities specifically described by EPA in its 1976 regulations as a “non-point source” that do not require NPDES permits under the CWA. Water quality is effectively protected during forest management through the use of BMPs. Recent studies show that throughout the country these BMPs are both effective and followed even in states where they are not mandatory. Several courts have affirmed EPA’s regulation that forest roads are non-point sources that do not require NPDES permits. Sierra Club v. Martin, 141 F.3d 803 (8th Cir. 1998); Newton County Wildlife Association v. Rogers, 71 F. Supp 2d. 1268, 1303 (N.D. Ga.1999).
The Northwest Environmental Defense Center (NEDC) sued the Oregon State Forester, the Oregon Board of Forestry, and four timber purchasers alleging that roads in the Tillamook State Forest are “point sources” requiring NPDES permits. NEDC v. Brown. After the U.S. District Court for the District of Oregon upheld the regulation, the U.S. Court of Appeals for the Ninth Circuit determined that forest roads and their stormwater controls that channel stormwater with pollutants through conveyances into waters of the United States are point sources subject to the NPDES permit requirement. NEDC v. Brown, 617 F.3d 1176 (9th Cir. 2010). The court ruled that the ditches and culverts used by the road system to manage stormwater runoff is within the definition of point source in the CWA, and, therefore, EPA lacked authority to designate them a non-point source in 1976.
The Ninth Circuit further ruled that EPA included logging and associated roads within its definition of “industrial activities” subject to Phase I of the stormwater NPDES permit program which require NPDES permits. The court refused to consider EPA’s explanation of its 1990 Phase I regulations and ruled that logging and associated roads must be considered an industrial activity.
The defendants and the intervener industry organizations immediately asked the Ninth Circuit to reconsider its decision. While the EPA is not a party to this case, they supported the defendants in district court and on the appeal. However, the U.S. Department of Justice (DOJ) recently filed a brief taking the somewhat disingenuous position that the rule is “ambiguous” whether collecting stormwater runoff from forest roads is a “nonpoint source,” notwithstanding the fact that this has been the issue in every lawsuit against forest roads filed over the past 20 years. Regardless of this historical re-interpretation by the DOJ, EPA should take appropriate steps to support its regulations, such as formally disagreeing with the Ninth Circuit and re-affirming its long-standing interpretation, ably set out in the 2003 statement by the EPA General Counsel. In addition, there is no need for the EPA to make permit coverage available throughout the country while rehearing is pending since the decision is not in effect and, if affirmed, its scope is limited to the specific parties, which do not include EPA.
IV. What Should Congress Do?
Simply put, Congress should correct these misinterpretations of congressional intent by the federal courts. Despite losing in the 8th Circuit and the Georgia federal court, opponents of working forests have forum-shopped throughout the country until they achieved the result they sought. It is time for Congress to re-affirm once and for all its 1972 intent that forest management is a non-point source and that pesticides are to be regulated under the rigorous procedures of the Federal Insecticide, Fungicide, and Rodenticide Act of 1972.
V. Conclusion
Private forests in the U.S. support millions of family-waged jobs, provide forest products used by all Americans every day, create opportunities for recreation and the enjoyment of open space. They also provide clean air and water, remove carbon from the atmosphere, supply wildlife habitat, and a variety of other environmental benefits. Forest acreage and overall forest carbon stocks are increasing because forests are an economically viable land use. Conserving these forests as forests by avoiding costly and unnecessary regulations that defeat overall water quality objectives should be a cornerstone environmental policy of the EPA.
Unfortunately, recent events frustrate these objectives, create uncertainties in the marketplace that stifle investment in forest management and renewable energy infrastructure, and threaten critical existing and prospective jobs in rural America at a time when economic recovery in these sectors of the economy is vitally needed. We urge the Committee to work with the Administration to align its regulatory actions with its stated policy objectives and properly position our nation’s private forests as part of our solution rather than casting them as part of a problem that must be regulated. We stand ready with our full resources to help.
Respectfully Submitted,
David P. Tenny
President and CEO
National Alliance of Forest Owners
[i] Environmental Effects of Agricultural Land-Use Change: The Role of Economics and Policy, Ruben Lubowski, Shawn Bucholtz, Roger Claasen, Michael J. Roberts, Joseph C. Cooper, Anna Gueorguieva, and Robert Johansson, USDA Economic Research Service. Economic Research Service Report Number 25 (August 2006).
[ii] More information is available at http://nafoalliance.org/environmental-regulation-of-private-forests/.
[iii] Ice, G.G., Schilling, E., and Vowell, J. 2010. Trends for forestry best management practices implementation. Journal of Forestry 108(6):267-273; Olszewski, R. and Jackson, C.R. 2006. Best management practices and water quality. A primer on the top ten forest environmental and sustainability issues in the southern United States. NCASI Special Report No. 06-06. Research Triangle Park, NC: National Council for Air and Stream Improvement, Inc.
