[Federal Register Volume 81, Number 128 (Tuesday, July 5, 2016)]
[Rules and Regulations]
[Pages 43492-43510]
[FR Doc No: 2016-15844]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Chapter I

[EPA-HQ-OW-2015-0668; FRL-9948-62-OW]

Decision Not To Regulate Forest Road Discharges Under the Clean
Water Act; Notice of Decision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Decision.

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SUMMARY: The Environmental Protection Agency (EPA) is providing notice
of the Agency's decision that no additional regulations are needed to
address stormwater discharges from forest roads under Section 402(p)(6)
of the Clean Water Act (CWA) at this time. This document responds to
the remand in Environmental Defense Center, Inc. v. U.S. EPA, 344 F.2d
832 (9th Cir. 2003) that requires EPA to consider whether the CWA
requires the Agency to regulate stormwater discharges from forest
roads.

DATES: This decision shall be considered issued for purposes of
judicial review at 1 p.m. Eastern time on July 11, 2016.

FOR FURTHER INFORMATION CONTACT: Prasad Chumble, EPA Headquarters,
Office of Water, Office of Wastewater Management via email at
<EMAIL_ADDRESS>or telephone at<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Applicability

    This document does not impose requirements on any entity.

B. Obtaining Copies of This Document and Related Information

1. Docket
    EPA has established a docket for this action under Docket ID No.
[EPA-HQ-OW-2015-0668; FRL-9948-62-OW]. Publicly available docket
materials are available either electronically through
www.regulations.gov or in hard copy at the EPA Docket Center, (EPA/DC)
EPA West, Room 3334, 1301 Constitution Ave. NW., Washington, DC. The
EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30
p.m.,

Monday through Friday, excluding legal holidays. The telephone number
for the Public Reading Room and the Docket Center is<PHONE_NUMBER>.
2. Electronic Access
    You may access this Federal Register document electronically from
the Government Printing Office under the ``Federal Register'' listings
at FDSys (http://www.gpo.gov/fdsys/browse/collection.action?collectionCode=FR).
3. Dates
    In accordance with 40 CFR part 23, this decision shall be
considered issued for purposes of judicial review at 1 p.m. Eastern
time on July 11, 2016. Under Section 509(b)(1) of the CWA, judicial
review of this decision can be had only by filing a petition for review
in the U.S. Court of Appeals within 120 days after the decision is
considered issued for purposes of judicial review.

II. Executive Summary

    EPA has determined not to designate stormwater discharges from
forest roads for regulation under Section 402(p)(6) of the Clean Water
Act (CWA) at this time. EPA's decision is based on several interrelated
factors. First, state, federal, regional, tribal government, and
private sector programs already exist nationwide to address water
quality problems caused by discharges from forest roads. Many of these
programs have been improved and updated in recent years. Program
implementation rates are generally high and have been shown to be
effective in protecting water quality when properly implemented. These
programs employ a variety of approaches, based in part on variations in
regional topography and climate. While EPA recognizes that existing
programs vary in their degree of rigor, the Agency has concluded that
efforts to help strengthen existing programs would be more effective in
further addressing forest road discharges than superimposing an
additional federal regulatory layer over them.
    Some commenters have asserted that federal regulatory requirements
could, in theory, promote national consistency and improvements in less
effective programs. In practice, however, federal forest roads
regulation presents a number of challenges that make achievement of
that result unlikely. Wide variations in topography, climate,
ownership, management, and use across the nation's network of forest
roads make the establishment of any nationwide regulatory program a
complex and difficult endeavor. Mechanisms for implementation and
enforcement of any federal regulatory requirements are limited, as
recent amendments to CWA Section 402(l) preclude both the use of
National Pollutant Discharge Elimination System (NPDES) permits to
regulate most discharges from forest roads and citizen suit enforcement
of any Section 402(p)(6) requirements. Some commenters discussed the
failings of existing best management practices (BMP) programs,
including insufficient compliance rates and compliance monitoring, but
a federal EPA-administered program would not necessarily be able to
address these challenges more effectively than entities with regional
expertise overseeing existing forestry management practice programs,
especially without the accountability mechanisms afforded by a
permitting program or third-party enforcement.
    For these reasons, elaborated upon below, EPA is exercising the
``broad discretion the CWA gives the EPA in the realm of stormwater
runoff,'' in deciding not to regulate stormwater discharges from forest
roads. See Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct 1326, 1338 (2013)
(affirming EPA's determination not to regulate stormwater discharges
from logging roads in its industrial stormwater rule). Instead, EPA
intends to work in consultation with state and local officials, as well
as other federal agencies and interested stakeholders, to help
strengthen their existing programs and improve awareness and
implementation of forestry best management practices. In reaching this
conclusion, the Agency is cognizant that the CWA reserves for states
``the primary responsibilities and rights . . . to prevent, reduce, and
eliminate pollution [and] to plan the development and use (including
restoration, preservation, and enhancement) of land and water resources
. . .'' 33. U.S.C. 1251(b).

III. Legal Background

    The objective of the CWA is to restore and maintain the chemical,
physical, and biological integrity of the nation's waters. 33 U.S.C.
1251(a). To that end, the CWA provides that the discharge of any
pollutant by any person shall be unlawful, except in compliance with
other provisions of the statute. The CWA provides for a permit program,
in general, for the discharge of a pollutant from a ``point source,''
which is defined in Section 502 of the CWA 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.'' 33 U.S.C. 1362(14). In 1987 Congress added Section 402(p)
to the CWA, which required NPDES permits for certain specified
stormwater discharges and provided EPA with discretion to determine
whether and how discharges from other stormwater sources should be
addressed ``to protect water quality.'' See Northwest Environmental
Advocates v. EPA, 640 F.3d 1063, 1083 (9th Cir. 2011) (``[i]t is within
the discretion of EPA to promulgate Phase II regulations requiring, or
not requiring, permits for such discharges'').
    For the initial phase of stormwater regulation, Section 402(p)(1)
created a temporary moratorium on NPDES permits for point sources
except for those listed in Section 402(p)(2). Section 402(p)(2)
includes discharges already required to have a permit; discharges from
municipal separate storm sewer systems serving a population of 100,000
or more; and stormwater discharges ``associated with industrial
activity.'' Congress did not define discharges associated with
industrial activity, allowing EPA to interpret the term. For other
stormwater discharges, Section 402(p)(5) directs EPA to conduct
studies, in consultation with the states, for ``identifying those
stormwater discharges or classes of stormwater discharges for which
permits are not required''; ``determining to the maximum extent
practicable, the nature and extent of pollutants in such discharges'';
and ``establishing procedures and methods to control stormwater
discharges to the extent necessary to mitigate impacts on water
quality.''
    Section 402(p)(6) authorizes the Administrator to issue
regulations, in consultation with state and local officials, based on
the studies prescribed by Section 402(p)(5). It provides EPA discretion
in selecting which discharge sources to regulate and how to regulate
them; it does not require the use of NPDES permits. Specifically, the
section states that the regulations ``shall establish priorities,
establish requirements for state stormwater management programs, and
establish expeditious deadlines'' and may include ``performance
standards, guidelines, guidance, and management practices and treatment
requirements, as appropriate.'' 33 U.S.C. 1342(p)(6). This flexibility
is unique to stormwater discharges regulated under Section 402(p)(6)
and differs from the requirement for NPDES permits for stormwater
discharges listed in Section 402(p)(2) of the Act.

    In 1990, EPA promulgated the Phase I stormwater regulations (55 FR
47990, November 16, 1990) (``Phase I Rule''), following the 1987 CWA
amendments which directed the Agency to develop regulations requiring
permits for large and medium municipal separate storm sewer systems and
stormwater ``discharges associated with industrial activity.'' In March
1995, EPA submitted to Congress a report on the results of the Section
402(p)(5) study that evaluated the nature of stormwater discharges from
municipal and industrial facilities not already regulated under the
Phase I regulations (EPA, 1995). On December 8, 1999, EPA promulgated
the Phase II stormwater regulations to address stormwater discharges
from small municipal separate storm sewer systems and construction
sites that disturb one to five acres. 64 FR 68722. Under CWA Sections
402(p)(2)(E) and 402(p)(6), EPA retains the discretionary authority to
designate additional stormwater discharges for regulation.
    The Phase II stormwater regulations were challenged in
Environmental Defense Center v. US EPA, 344 F.3d 832 (9th Cir. 2003)
(EDC v. EPA). In that case, petitioners contended that EPA arbitrarily
failed to regulate discharges from forest roads under the Phase II
rule. The court held that EPA failed to consider petitioners' comments
and remanded the issue to EPA ``so that it may consider in an
appropriate proceeding Petitioner's contention that Section 402(p)(6)
requires the EPA to regulate forest roads. The EPA may then either
accept Petitioners' arguments in whole or in part, or reject them on
the basis of valid reasons that are adequately set forth to permit
judicial review.'' Id. at 863.
    In the years following the decision in EDC v. EPA, EPA undertook
research to improve the Agency's knowledge of the water quality impacts
of forest road stormwater discharges and the programs that exist to
reduce those impacts. During that period, the Northwest Environmental
Defense Center initiated litigation concerning logging road stormwater
discharges. In 2011, the U.S. Court of Appeals for the Ninth Circuit
issued a decision in Northwest Environmental Defense Center v. Brown,
640 F.3d 1063 (9th Cir. 2011) (``NEDC''), a citizen suit alleging
violations of the CWA for unpermitted discharges of stormwater from
ditches alongside two logging roads in state forests. The court held
that because the stormwater runoff from the two roads in question is
collected by a system of ditches, culverts, and channels and then
discharged into waters of the U.S., there was a point source discharge
of stormwater associated with industrial activity for which an NPDES
permit is required.
    On May 23, 2012, EPA published a Notice in the Federal Register
summarizing known water quality impacts related to forest roads and
discussing existing state, tribal, and voluntary programs designed to
address those impacts. (77 FR 30473). The Notice expressed EPA's intent
to specify that only stormwater discharges associated with rock
crushing, gravel washing, log sorting, and log storage are discharges
associated with silvicultural activity that are subject to permitting
under the stormwater regulations pertaining to industrial activity. The
Notice also discussed the Agency's consideration of non-permitting
approaches to address other stormwater discharges from forest roads. On
December 7, 2012, EPA promulgated a rule (77 FR 72970) clarifying that
discharges of stormwater from silviculture activities other than rock
crushing, gravel washing, log sorting, and log storage do not require
an NPDES permit. On March 20, 2013, the Supreme Court reversed the
Ninth Circuit's ruling in NEDC, holding that discharges of stormwater
that ran off logging roads into ditches, culverts, and channels did not
require an NPDES permit as stormwater from industrial activity. See
Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct 1326 (2013).
    In January 2014, Congress amended CWA Section 402(l) to effectively
prohibit the requirement of NPDES permits for the discharge of runoff
``resulting from the conduct of the following silviculture activities
conducted in accordance with standard industry practice: nursery
operations, site preparation, reforestation and subsequent cultural
treatment, thinning, prescribed burning, pest and fire control,
harvesting operations, surface drainage, or road construction and
maintenance.'' 33 U.S.C. 1342(l). In addition, the amendment prohibits
third-party lawsuits (``citizen suits'') authorized by CWA Section
505(a) for any requirements established under Section 402(p)(6) for the
silviculture activities listed above.
    In December 2014, EDC and the Natural Resources Defense Council
filed a petition with the Ninth Circuit to compel EPA to respond,
within six months, to the question remanded in the 2003 EDC v. EPA
decision of whether Section 402(p)(6) requires federal regulation of
stormwater discharges from forest roads. Following execution of a
settlement agreement filed with the court on August 26, 2015, the court
entered an order establishing a schedule requiring EPA to issue a final
determination by May 26, 2016. The parties subsequently extended the
deadline by joint stipulation to June 27, 2016.

IV. Background on Forest Roads and Their Water Quality Impacts

    Forests cover about one-third of the continental U.S.
(approximately 816 million acres). Over half are privately owned (58%
or approximately 475 million acres) (USFS, 2016). Of private forest
land, 63% is owned by families and individuals and is commonly referred
to as ``family forests.'' Most of the family forest owners (around 62%)
own fewer than 10 acres of forest land. Owners of the remaining private
forest land include corporations, Real Estate Investment Trusts
(REITs), conservation organizations, clubs, and Native American tribes
(USFS, 2016). Over 300 Native American reservations are significantly
forested, and Native American tribal lands include 18.6 million acres
of forest land, including 1.5 million acres of productive timberland
(Bureau of Indian Affairs, 2009). Private forest land owners invest
considerable resources in forest road construction and maintenance, as
they are critical assets that enhance property values, maintain
economic viability, and facilitate sustainable forestry.
    Forty-two percent of forest land, or approximately 341 million
acres, is publicly-owned. The federal government administers an
estimated 74% of the public forest land. State forestry, park, and
wildlife agencies account for most of the 22% of state-owned public
forest land. The remaining 4% of public forest land is owned by local
governments, such as counties and towns (USFS, 2016). Within the U.S.,
the distribution of public versus private forests differs greatly among
the various regions of the country. For example, forest ownership in
the Northwest is dominated by public ownership, primarily by the U.S.
Forest Service (USFS) and the Bureau of Land Management (BLM). Private
ownership is more prevalent in the Southeast and Northeast (Id.).
    Forests are connected by a vast network of forest roads built over
the course of more than a century. Roads exist in forests for all land
ownership categories, enabling activities as varied as timber
operations, recreation, fire protection and general transportation.
Originally some were built to allow mining or agriculture. The network
of forest roads includes both active and inactive roads that vary in
age and condition, and which often serve multiple purposes by multiple
users at

the same time. Because of the nature of timber growing, timber roads
are often used just once every fifteen or twenty years. Endicott (2008)
noted that:

[e]ach forest road network commonly contains a collection of older
and newer roads, designed to different standards, for various
purposes, and crossing terrain of differing sensitivities. This
mosaic of road segments has implications for how the forest road
network will interact with the forest watershed, streams, and other
downstream aquatic resources.

    A single road may be subject to different owners and managers and
used for different activities at different points. Often the owner of
the road is not the owner of the forest land over which the road
travels. For example, a BLM-owned road may pass through private
property or a timber company-owned road may pass through a state-owned
public forest. The purpose of a road may also change at different
points; for example, most of a road may be used for recreation but a
small part of it may service a timber operation. Legacy roads pose
particular concerns for water quality. Built prior to the adoption of
modern BMPs, they may be poorly sited or designed and frequently no
owner or operator assumes responsibility for those roads.
    As previously discussed in 80 FR 69655-69656 (November 10, 2015)
and 77 FR 30476 (May 23, 2012), the Agency's research indicates that
improperly designed, constructed, maintained, or decommissioned forest
roads can impact water quality. These impacts are variable and may
include increased sediment load and changes in stream network
hydrology, which can cause physical, biological, and ecological impacts
to water quality and aquatic organisms.
    Erosion from many forest roads does not affect water quality.
First, roads that are not hydrologically connected to a stream do not
deliver sediment to water bodies. For example, Dube et al. (2010),
found that in an inventory of forest roads in 60 random four-square-
mile sections of forests in the Washington State, only 11% were
connected to streams; Skaugset and Allen (1998) surveyed 287 miles of
forest roads in 5 regions of Oregon and determined that 25% of forest
roads drained directly to streams while another 6% were rated
``possible'' for sediment delivery. Second, a variety of factors play a
role in how water quality is impacted by forest roads, including road
design, road surfaces, construction, maintenance, rate of use,
topography, soil characteristics, precipitation patterns, and proximity
of roads to surface water. The source of water quality impacts tends to
be localized.
    Available data suggest that the number of surface waters impacted
by silvicultural operations, including forest roads, is a small
percentage of Section 303(d) listed impaired waters. EPA's analysis of
the data shows that this trend has been consistent over time,
indicating that water quality impacts appear to have persisted over
time, but comprise only a small percentage of all sources of
impairment. Specifically, results of nationwide waterbody assessments
from the EPA's Assessment and Total Maximum Daily Loads (TMDL) Tracking
and Implementation System (ATTAINS),\1\ which contains the most
currently available data reported by states to the EPA under Sections
305(b) and 303(d) of the CWA, found silviculture, which includes a
broad spectrum of forestry activities including regulated
activities,\2\ contributed to impairment of 40,637 miles of rivers and
streams (7% of the total of 614,153 miles impaired) and 159,920 acres
of lakes, reservoirs and ponds (1% of the total of 13,009,273 acres of
impaired) (ATTAINS 2016). ``Forest roads (road construction and use)''
or ``logging roads'' are listed as the ``probable source'' of
impairment for 31,076 miles of rivers and streams (5% of total
impaired) and 7,627 acres of lakes, reservoirs and ponds (less than 1%
of total impaired).
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    \1\ https://iaspub.epa.gov/waters10/attains_index.home
    \2\ Non-point source silvicultural activities include nursery
operations, site preparation, reforestation and subsequent cultural
treatment, thinning, prescribed burning, pest and fire control,
harvesting operations, surface drainage in addition to road
construction and maintenance from which there is natural runoff at
issue here.
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    The extent of the impacts of silvicultural activities on water
quality varies by region. Impairment data from states that report
probable sources of impairments suggest that forest roads constitute a
relatively low percentage of impairments. Examples of states where
silviculture (a broader category that includes forest roads) is
identified as a probable source of impairment and that document a
percentage of the total river and stream miles impaired by `forest
roads' or `logging roads' include: Idaho (0.62%; forest roads);
Kentucky (0.04%; forest roads); Montana (5.71%); New Mexico (1.97%);
and Pennsylvania (0.01%) (ATTAINS 2016). Road-related pollutant loading
and impairments, however, may represent a higher percentage of
impairments within specific regions. For example, within federal lands
in the interior Columbia Basin, roads were identified as the largest
source of sediment from any land management activity.\3\
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    \3\ http://www.fs.fed.us/pnw/publications/icbemp.shtml
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    EPA recognizes that the national water quality data discussed above
have certain limitations. One limitation is that some states, when
compiling their Section 305(b) reports, may not report the probable
source of an impairment or may list probable impairment sources as
unspecified, unknown, or in some other category, which may lead to
underreporting of the source of the impairment. Additionally, some
states may not assess all of their waters or may use different
methodologies to collect or report water quality data, limiting the
ability of drawing national-scale conclusions.
    ATTAINS data indicating the effect of discharges from forest roads
on water quality impairments may therefore not be fully representative
due to reporting differences among states. For example, of the 40,637
miles of rivers and streams that ATTAINS indicates are impaired by
silviculture, the database shows that California accounts for 34,443,
or 85%, nationally (ATTAINS, 2016). Some regions in California use a
particular approach toward classifying impairments that increases the
reported percentage of impaired miles. Unlike other states, if a given
reach of river is identified as impaired for a particular pollutant,
some California regions categorize all of the river miles in the entire
watershed as impaired.
    It is also important to recognize that EPA's data collection
methods have changed over time. While ATTAINS compiles state-level
data, it relies on the states for this information. The National Water
Quality Initiative (NWQI), conducted by EPA, provides very specific
information on impairments and sources, but EPA no longer collects
these data. EPA currently uses probabilistic approaches (such as the
Wadeable Streams Assessment and the National Rivers and Streams
Assessment) to collect national-scale data on water quality. While
these assessment approaches are sound, they do not reveal specific
impairments and causes and therefore are less informative for purposes
of this analysis.
    Estimating sedimentation specifically related to forest road
discharges is also difficult as a practical matter. Unlike industrial
and wastewater facilities, which typically have water quality
monitoring to provide background data for assessing compliance with
water quality standards, there is little to no regular monitoring of
water quality in waters affected by forest road

discharges. Endicott (2008) noted that ``[e]ven a well-designed erosion
experiment frequently results in variations from the mean of up to
50%.'' Investigators may also be unable to differentiate among sediment
generated from forest roads and sediment generated from other
silvicultural activities, background erosion rates, or other sources.
Endicott (2008) further explains that: ``Numerous studies have
demonstrated that the biotic and chemical ``noise'' in larger streams
renders the water quality effects of forestry activities using BMPs
undetectable.'' Finally, Endicott (2008) recognizes that quantitative
data can be difficult to obtain because ``impairments can be difficult
to detect and/or measure'' and ``[e]rosion only usually occurs during
wet weather.''

V. Role and Effectiveness of Forestry Best Management Practices

    The U.S. Forest Service defines Best Management Practices (BMPs) as
the following:

    A practice or a combination of practices, that is determined by
a State (or designated area-wide planning agency) after problem
assessment, examination of alternative practices and appropriate
public participation to be the most effective, practical (including
technological, economic, and institutional considerations) means of
preventing or reducing the amount of pollution generated by nonpoint
sources to a level compatible with water quality goals (USFS, 1988).

    In the context of forest roads, BMPs focus on preventing and
mitigating water quality impacts that may stem from the construction,
maintenance and use of forest roads. Forest road BMPs are on the ground
activities and structures that, in most cases, aim to prevent
discharges of sediment from roads to streams. BMPs may also target
other suspended solids, spills and residues, changes in water
temperature, and alterations to flow regimes. In some cases they are
designed to protect stream geomorphology and habitat for certain
species.
    BMPs for forest roads generally fall into three categories: BMPs
addressing road planning and design, road construction and
reconstruction, and road management (e.g., Endicott 2008). Over the
past several decades BMPs have been developed, evaluated, and improved
based on ongoing research and technical innovation. BMPs are now widely
implemented as standard elements of most private, state, and federal
forestry programs (Ice et al., 2010). State-specific BMP programs and
guidelines are available in most states (NCASI, 2009). Although the
primary purpose of BMPs is to reduce environmental impacts, they must
also be feasible and practical (Ice, 2004).
    BMPs are generally selected based on site-specific needs and
conditions, which vary tremendously. Proximity of the road to the
stream, size of the road, local geology and climate all influence the
occurrence and magnitude of erosion and consequently the types of BMPs
that will be most effective. For example, use of gravel to cover a road
surface can be a highly effective erosion control BMP in steep terrain.
In flat terrain, that same BMP would be less effective and much more
expensive than a properly maintained continuous roadside berm
(Appelboom et al., 2002).
    While BMP design is site-specific, many documents describe the most
common BMPs (e.g., NCASI, 2001; EPA, 2005; NCASI, 2009; USFS, 2012;
NCASI, 2012). This document does not provide a detailed discussion of
the BMPs themselves; a number of comprehensive sources regarding
different types of BMPs are available and included in the record for
this decision (e.g., NCASI, 2009; Endicott, 2008; North Carolina
Forestry BMP Manual; Montana Forestry BMP Manual). Most BMPs are based
on relatively few guiding principles (Megahan and King, 2004; Olszewski
and Jackson, 2006). These include:
     Use existing roads when practicable;
     Inventory road and stream conditions;
     Identify and avoid high-erosion hazard areas;
     Minimize the total land area disturbed;
     Minimize road crossings and other incursions into
waterbodies;
     Engineer stable road surfaces, drainage features and
stream crossings to reduce erosion;
     Separate bare ground from surface waters and minimize
delivery of road-derived sediments to streams;
     Provide a forested buffer around streams;
     Design and install stream crossings to allow passage of
fish, other aquatic biota, and large wood;
     Anticipate and mitigate erosion from precipitation events,
including especially large ones;
     Regularly inspect all BMPs and erosion-prone areas,
including during and/or immediately following precipitation and
snowmelt events that may generate runoff; and
     Maintain forest roads and all BMPs.
    EPA notes that BMPs currently play and historically have played a
significant role in wet weather \4\ and non-point source control
programs. The scientific literature increasingly demonstrates the
effectiveness of BMPs in preventing, minimizing, and mitigating
discharges affecting water quality and aquatic habitats (Ice, 2004;
Anderson and Lockaby, 2011; NCASI, 2012; Cristan et al., 2016; Endicott
(2008)). Although existing research has significantly improved the
effectiveness of forest road BMPs, reducing water quality impacts from
road construction and other practices, many discharges still occur
(Anderson and Lockaby, 2011). Further research would help to optimize
operation and maintenance and provide guidelines for adapting BMP
implementation to site-specific needs.
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    \4\ 40 CFR 122.44(k).
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    Several commenters cited a report by Cristan et al. (2016) --
``Effectiveness of Forestry Best Management Practices in the United
States: Literature Review''--which summarized 81 BMP effectiveness
studies: 30 studies of southern states, 20 studies of northern states,
and 31 studies of western states.
    The review concluded generally that:
     Forestry BMPs minimize water quality effects of forest
operations when implemented as recommended by state forestry and water
quality agencies.
     Forest roads, skid trails, and stream crossings warrant
considerable attention because they have the greatest potential for
erosion and sediment delivery.
     Many studies across the U.S. have shown BMPs to be
effective and reduce sediment delivery to streams.
    Several of the studies in the review assessed BMP performance and
effectiveness in tandem and individually, including:
     Appelboom et al. (2002) sampled runoff from seven road
practices in North Carolina and found that roads with continuous berm
treatment had a 99% reduction in sediment loss compared to roads that
did not have a continuous berm.
     Aust et al. (2011) evaluated four types of operational
forest stream crossings at 23 crossings and approaches for total
dissolved solids, pH, conductivity, temperature, and sediment
concentration in the Piedmont region of Virginia during initial,
installation, harvest, and closure stages. The authors found that
bridge crossings had the least impact on water quality, that the
installation and harvest phases had the greatest impact on water
quality, and that BMPs should be followed during all phases.
     Wisconsin DNR (2006) published a BMP manual in 1995 and
assessed the first ten years of their water quality program. The
average BMP compliance rate was 83% and BMP effectiveness

was 99% when the appropriate BMPs were applied and maintained. When
BMPs were not applied, water quality was affected 71% of the time.
     Pannill et al. (2000) evaluated Maryland BMPs in a paired
watershed study and, based on TSS, stormflow, stream temperature, and
macroinvertebrate data, found no significant water quality differences
between pre-harvest and post-harvest, i.e., proper BMPs will help
protect water quality, biology, and habitat.
     Vowel (2001) conducted stream bioassessments using a
stream condition index (SCI) for sites before and after silvicultural
treatments incorporating Florida BMPs and found no significant
differences in the SCI. The study concluded that Florida BMPs were
effective in protecting water quality.
    Cristan et al. (2016) also indicated that, in certain conditions,
water quality effects can occur even when BMPs are used.
     Maryland DNR (2009) evaluated state BMPs from 2004-2005 on
75 forest harvested sites using a Maryland-specific BMP implementation
checklist. Maryland found that 81% of those sites were in compliance
with state BMPs standards. Maryland also found that BMPs were 77%
effective in protecting water quality; however, they found that 19% of
the sites evaluated delivered measurable sediment to waterways.
     Rice (1999) estimated the mean erosion rate from older
logging roads (installed in the 1950s, maintained to standards of the
1980s) in the Redwood Creek watershed (northern California) to be 177
m\3\ km\-1\ from 1980 to 1997, mainly from the road cut banks, but
noted that changes in forest practice rules (especially proper
placement of culverts and sizing of culverts) reduced erosion on
logging roads.
     Bilby et al. (1989) assessed road surface sediment
production from five roads in two southwestern Washington watersheds
including two heavily trafficked roads built in the 1950s and three
haul roads built between 1968 and 1974 and found that sediment entered
first and second order streams 34% of the time.
     Nolan et al. (2015) examined the effectiveness of BMPs at
a number of stream crossings in Virginia. The study conducted an audit
of BMP implementation rates, which it found can often function as
surrogates for BMP effectiveness. In general, the study found that the
majority of stream crossings were performing properly, but that
performance varied. The study also cited Edwards and Williard (2010),
which ``found only three studies that provided BMP efficiencies with
regard to sediment loading reductions and reported BMP efficiencies
ranging from 53%-94%.''
     The USFS evaluated its Pacific Southwest Region BMP
program from 2008-2010, conducting 2,237 BMP inspections, and found
that BMP implementation was 91% and effectiveness was 80%, with stream
water quality impacts at 12% of the sites (USFS, 2013). BMPs for timber
harvesting, fuels treatments, and vegetation management were effective;
BMPs for roads, range management, recreation, and mining were not as
effective, although effectiveness could be increased by imposing
erosion control plans and wet weather standards.
    EPA also considered other recently-published literature. Below are
some of the major findings:
     The literature review Assessing the Effectiveness of
Contemporary Forestry Best Management Practices (BMPs): Focus on Roads
(NCASI, 2012) reviewed hundreds of studies and found that
``implementing a suite of contemporary BMPs reduces sediment loads to
streams by 80% or more relative to uncontrolled forestry operations.''
The document further concluded that ``Specific BMPs for roads have been
tested in controlled studies and proven effective by road inventories
conducted by forestry agencies in several states. Those inventories
show that road BMPs are being implemented at high rates and are
effective in reducing risks to water quality; road drainage structures
are being disconnected from streams; poor road/stream crossings are
being identified and corrected; and landslides from forest roads are
being reduced.''
     The USFS (2012) National Best Management Practices for
Water Quality Management on National Forest System Lands (Volume 1:
National Core BMP Technical Guide), provides highly detailed guidance
on silvicultural BMPs, including those for forest roads. BMP
effectiveness ratings were 93% (Pacific Southwest Region) and 98%
(Montana), with North Carolina effectiveness rates showing an increase
from 73% to 93% between 1992 and 2010. Guidance to standardize BMP
monitoring protocols is under development.
     Ice et al. (2010) estimated national BMP implementation
rates at 89%.
     Sugden et al. (2012) found that BMP implementation rates
in Montana have increased over time, corresponding with a significant
drop in the number of observed water quality impacts.
    Below are findings from national-scale studies:
     Cristan et al. (2016) concluded that BMPs implementation
rates and quality are critical to BMP effectiveness for reduction of
erosion and sediment yield. Important BMP practices for forest roads
include proper drainage structures, surfacing, erosion control of cut
and fill slopes, traffic control, and closure. Sediment control
structures applied to stream crossing approaches can significantly
reduce runoff and sediment delivery.
     Ice et al. (2010) concluded that the combination of
effective BMPs and a high rate of BMP implementation helps protect the
water quality and beneficial uses of streams, lakes, and wetlands in
forested environments.

VI. Existing BMP-Based Programs and Other EPA Tools

    A broad array of BMP-based programs--including state and federal
programs and private third-party certification programs--has been
established to address forest roads in every state with significant
forestry operations in the country. The following sections outline the
nation's current landscape of state, federal, and third-party BMP based
programs designed to control discharges from forest roads, and discuss
the role of existing EPA tools in addressing stormwater discharges from
forest roads. As highlighted below, available information indicates
that these programs are tailored to address regional and local
differences, that implementation rates are generally high, and that
meaningful improvements have been and continue to be made in these
programs over time. EPA did not obtain significant data about tribal
programs addressing discharges from forest roads, so does not report on
tribal programs in this section. EPA will seek to learn more about
efforts to address stormwater discharges from forest roads on tribal
lands as part of its continuing efforts to gather best practices data
going forward.

A. State BMP-Based Programs

    Data EPA obtained during the comment period indicates that all
states with significant forestry operations have developed BMP manuals
and most states have established forest management programs tailored to
state-specific conditions (e.g., topography, climate, and industry
activity) that address runoff from forest roads. The data also
indicates that BMPs are being implemented at increasing rates across
the nation. A team of researchers from Virginia Polytechnic Institute
and State University (Virginia Tech), in consultation with the National
Association of State Foresters (NASF),

surveyed all 50 states in 2013 to identify silvicultural activities
addressed by BMPs, characterize the approaches to BMP implementation
adopted by each state, determine the extent to which states are
implementing BMP e[fflig]ectiveness monitoring, and summarize BMP
implementation rates (NASF, 2015). The survey showed that most states
have established forestry BMPs designed to protect water quality.
According to the survey, these programs are a mix of regulatory (11
states), quasi-regulatory (19 states), and non-regulatory (20 states)
programs. Those states with regulatory programs generally have some
form of forest practices law or silvicultural BMP legislation. In
states with quasi-regulatory programs, state law specifies desired
outcomes but does not require specific BMPs to achieve that outcome.\5\
---------------------------------------------------------------------------

    \5\ Such programs can include states where BMPs are not
mandatory but enforcement actions can be taken against polluters.
---------------------------------------------------------------------------

    Existing state programs vary because they are designed to address
state and site-specific factors. Prior assessments of state forestry
BMP programs have found similar, generally consistent information.\6\
\7\ The following number of states have established forest road
specific BMPs (Table 1).
---------------------------------------------------------------------------

    \6\ See 80 FR 69657-69658 (Nov. 10, 2015). Characterizations of
state forestry BMP programs differ in some ways because of the way
reviewers categorize the programs, aspects of the programs they
review, different interpretations of program elements, and the fact
that state forestry BMP programs have evolved and continue to evolve
over time.
    \7\ Endicott, 2008. See Section 4 and Tables 4-1 and 4-2.

 Table 1--States With Forest Road BMP Programs Based on Endicott (2008)
------------------------------------------------------------------------
                                                             Number of
               Category of forest road BMP                    states
------------------------------------------------------------------------
Construction............................................              44
Drainage................................................              41
Location/Spacing........................................              38
Maintenance.............................................              40
Road Closure............................................              24
Stabilization/Soils/Slope...............................              32
Stream Crossings........................................              40
SMZs/Bank Stabilization/Buffer Strips...................              36
Wet Weather Use.........................................              10
Winter Operations.......................................              10
Training/Technical Assistance...........................              23
Implementation/Effectiveness Monitoring.................              32
Compliance/Enforcement..................................              30
------------------------------------------------------------------------

1. Existing State Programs Are Tailored To Address State and Site-
Specific Factors
    One of the primary mechanisms for addressing water quality impacts
of forest roads is individual states' forest practices polices, which
generally establish standards for the design, operation and maintenance
of forest roads applicable to conditions in their state. State forest
road programs vary to some degree in their structure, requirements, and
administration. Differences are based on legal, and socioeconomic
factors as well as variations in climate, soils, topography, and
aquatic biota. State programs generally establish both guiding
principles and specific management practices that must be applied and
adapted to a broad range of settings and conditions. Site-specific
flexibility is important because no single set of requirements will be
effective across the country. As EPA stated in its November 10, 2015
notice, ``[t]he diversity of the forest road networks, the different
classes of roads, the different local physical conditions, and the
broad range of road conditions and uses indicate the importance of site
specific BMP selection and implementation to protect water quality''
(80 FR 69656). For example, commenters correctly pointed out that
Florida's forest road BMPs need not recommend or discuss full-bench
road construction and end hauling techniques, as Oregon's rules do,
because Florida does not have landslide-prone terrain, while Oregon has
steep terrain with the potential for landslides, where such
construction and end hauling techniques would be appropriate (EPA-HQ-
OW-2015-0668-0089).
2. State Programs Show High Implementation Rates
    Data from the 2013 NASF survey indicated that both forestry and
forest road BMPs are implemented broadly. BMP implementation surveys in
32 states (i.e., those with significant forest management activity)
between 2005 and 2013 showed an average forestry BMP implementation
rate of 91% (NASF, 2015). Nationally, the survey suggests that
implementation rates for forest road BMPs averaged 91.5% and stream
crossing BMPs averaged 86.7% (NASF, 2015). The 2012 Southern Region
Report published by the Southern Group of State Foresters (SGSF) found
forest road BMP implementation rates for 11 states \8\ range from 78-
99%, with an average of 88%. In the SGSF report, stream crossing BMP
implementation rates ranged from 72-98% and averaged 89% (SGSF BMP
Report, 2012).
---------------------------------------------------------------------------

    \8\ Alabama, Arkansas, Florida, Georgia, Mississippi, North
Carolina, Oklahoma, South Carolina, Tennessee, Texas, and Virginia.
---------------------------------------------------------------------------

    The NASF survey also indicated that forest road BMP implementation
rates do not vary significantly regardless of whether the state program
is regulatory, quasi-regulatory, or non-regulatory. The NASF survey
indicated that implementation of forest roads BMPs in 8 regulatory
reporting states averages 93.9%, while the implementation rates in the
11 quasi-regulatory reporting states and 13 non-regulatory reporting
states averages 90.6% and 90.5%, respectively (NASF, 2015).
    Plus, BMP implementation rates have improved and continue to
improve over time. For example, from 2008--2012, the implementation
rates for all forestry BMPs (including forest road and stream crossing
BMPs) trended upward in the SGSF report. This included forest road BMP
implementation rates and stream crossings BMP implementation rates,
which increased from 87 to 90%, and from 85 to 89%, respectively (SGSF
BMP Report, 2012).
    In addition to state forest road BMP programs, several efforts have
emerged over the past 10 years to improve monitoring of BMP programs.
Regional groups have undertaken efforts to promote consistent and
comparable forestry BMP program monitoring data. The SGSF and the
Northeastern Area Association of State Foresters (NAASF) have developed
regional BMP monitoring protocols that states in those regions are
using.
    SGSF developed Silviculture Best Management Practices
Implementation Monitoring, A Framework for State Forestry Agencies
(2007) to improve and maximize the integrity of BMP implementation
monitoring in southern states (SGSF Regional BMP Framework Protocol,
2007). The framework, which is implemented by 13 southern states,
Puerto Rico, and the U.S. Virgin Islands, is designed to provide
guidance for monitoring forestry BMP implementation that results in
data that are statistically sound, objective, and promote analytical
consistency among states. The framework addresses monitoring frequency,
site selection, practices to be evaluated, the basis for practice
evaluation and reporting, scoring methodology, risk assessment, and
follow-up actions.
    Similar to the SGSF BMP monitoring framework, the USFS Northeastern
Area State and Private Forestry and the Northeastern Area Association
of State Foresters--Water Resources Committee have developed the
Forestry BMP Protocol Project. The BMP Protocol is a

standard method for monitoring the use and effectiveness of BMPs
commonly used in timber harvesting. The BMP Protocol, which is
available to 20 states, serves three functions: (1) Data collection,
(2) data analysis, and (3) report generation. It collects data using a
branched question set designed to address those areas of the timber
harvest with the greatest potential to impact water resources
(including haul roads and water crossings). The protocol was developed
to document the use and effectiveness of BMPs in protecting water
resources during forest harvesting operations; document the degree of
compliance with the CWA, as well as the Coastal Zone Management Act and
various state laws and regulations; assess water resource protection
based on the effectiveness of a collective set of BMPs; increase
credibility through the measurement of results; respond to public
concerns regarding the potential effects of timber harvesting based on
measured evidence; and identify opportunities for improvement in water
resource protection by identifying causes of BMP failure. Both a Desk
Reference and Field Guide have been developed for the monitoring
protocol (BMP Manual Desk Reference, 2007; BMP Field Guide, 2007).
    Other factors are also facilitating the increasing rate of BMP
implementation. For example, third-party certification programs, as
discussed in detail in section VI.C of this document, all require BMP
implementation and third-party audits to verify that timber companies
conform to state standards. Forest certification programs have made
important contributions to improved BMP implementation through logger
training, landowner outreach, and water quality requirements. Other
examples are the logger training and certification programs established
by states and third-party programs, such as the SFI Logger Training and
Education (2015) program, to ensure loggers are educated about the use
and maintenance of appropriate forest road BMPs. Training is
particularly important given the site-specific customization BMPs
require. The best way to ensure optimal BMP selection and installation
is through localized knowledge of climate, soils, forestry operations,
and other factors, in combination with state-specific BMPs. Some
commenters noted that the Forest Resources Association reports having
trained more than 150,000 logging professionals since the inception of
the forest certification program (EPA-HQ-OW-2015-0668-0089). For fiscal
year 2015, West Virginia noted that 1,454 loggers received
certification to supervise logging operations and assure BMPs were
applied (EPA-HQ-OW-2015-0668-0075). Also, as one commenter noted,
effective outreach and training programs have served to foster a
culture of high BMP implementation rates such that BMPs have largely
been institutionalized in the forestry community.
3. State Programs Continue To Evolve and Improve
    States frequently revise their forest roads management guidance/
regulations. States with significant forestry operations have
mechanisms in place to evaluate the effectiveness of forestry BMPs and
use monitoring and research results to revise these practices when
necessary (typically by government appointed forestry boards, forestry
commissions, or a mix of agencies, councils, or departments). For
example, California Department of Forestry and Fire Protection revised
its Forest Practice Rules in 2015 to better manage drainage and erosion
from logging roads (EPA-HQ-OW-2015-0668-0055); Wisconsin DNR-Division
of Forestry revised its Forest Management Guidelines in 2011,\9\
including updating forestry BMPs for water quality; and the Oregon
Board of Forestry increased the riparian zone buffer width for fish-
bearing streams in 2015 (Oregon Riparian Rule, 2015). States, federal
agencies and various stakeholder groups continue to enhance BMP
prescriptions and identify the site-specific factors that influence
their effectiveness. For example, industry commenters identified 36
states that have revised their forest road BMPs within the last ten
years (EPA-HQ-OW-2015-0668-0089), and according to a recent state
survey conducted by the National Association of State Foresters, 31
states (62%) have updated their forest roads management guidance/
regulations since 2006.\10\ EPA's own analysis also indicates that many
states have revised their programs, with some being revised as recently
as 2016 (State Program Summary, 2016).
---------------------------------------------------------------------------

    \9\ http://dnr.wi.gov/topic/forestmanagement/guidelines.html.
    \10\ http://www.stateforesters.org/action-issues-and-policy/state-forestry-BMPs-map-o-o.
---------------------------------------------------------------------------

B. Federal BMP-Based Programs

    At the federal level, the USFS and the BLM have established
programs to manage stormwater discharges from forest roads on federal
lands. These agencies manage large tracts of forested lands, including
lands that are actively being used for road building, road maintenance,
logging operations, public and recreational use or other activities,
and generally demonstrate sound environmental stewardship in managing
these lands.
1. Summary of U.S. Forest Service Programs
    The 193 million acres (780,000 km\2\) of public land that are
managed as national forests and grasslands are collectively known as
the National Forest System. These lands are located in 44 states,
Puerto Rico, and the Virgin Islands and comprise about 9% of the total
land area in the U.S. The USFS manages approximately 20% of the
Nation's forested area and nearly 10% of the Nation's rangelands (USFS
Strategic Plan FY: 2015-2020). The lands are organized into 154
National Forests and 20 National Grasslands. The mission of the
National Forest System is to manage the national forests and grasslands
to meet the Agency's sustainable multiple-use mandate.
    The USFS uses several tools and strategies, such as the Legacy
Roads and Trails program, Watershed Condition Framework, and the
National Best Management Practices Program, in addition to local
programs, to maintain and improve watershed health and manage
discharges from forest roads.
    The Legacy Roads and Trails program assists the USFS in identifying
legacy roads in national forests and grasslands. USFS targets projects
that will minimize the discharge of stormwater by decommissioning,
maintaining, or upgrading various roads. From 2009-2015, the USFS
decommissioned 5,504 miles of National Forest System Roads and an
additional 6,714 miles of unauthorized roads; reconstructed 13,413
miles of roads; and maintained 57,333 miles of roads per year during
that period.
    The USFS Watershed Condition Framework helps the USFS to assess
watershed health in national forests and grasslands, identify and
implement protective measures, and conduct ongoing watershed
monitoring. Watershed conditions are categorized into three discrete
categories or classes that reflect the health of the watershed. One
primary emphasis of the watershed assessment is indicators that
directly or indirectly impact soil and hydrologic functions as well as
riparian and aquatic ecosystems. Initial watershed condition framework
assessments for all watersheds on USFS lands were completed in
2011.\11\
---------------------------------------------------------------------------

    \11\ http://www.fs.fed.us/biology/watershed/condition_framework.html.
---------------------------------------------------------------------------

    In 2012 the USFS also initiated and began to implement a National
BMP

program integrating water resource protection into landscape management
activities. The National BMP program is designed to improve agency
performance, accountability, consistency, and efficiency in protecting
water quality. The program consists of National Core BMPs, standardized
monitoring protocols to evaluate BMP implementation and effectiveness
of the National Core BMPs, and a data management system to store and
analyze the resulting monitoring data. National Core BMPs address 11
subject areas affecting water quality. One of those subject areas is
road management activity, which includes BMPs for travel management
planning and analysis, road location and design, road construction, and
stream crossings (USFS, 2012). The National BMP based program enables
the USFS to document compliance with the management of nonpoint source
pollution at local, regional, and national scales as well as address
the 2012 land management planning rule requirement for national BMPs at
36 CFR 219.8(a)(4).
    The USFS monitors road management BMP implementation and its
effectiveness at protecting water, aquatic, or riparian resources
through nine evaluation categories and/or time periods, some of which
include: Construction and reconstruction of USFS system roads and/or
waterbody crossings; after construction or reconstruction has been
completed; long-term management and maintenance of USFS system roads;
decommissioned roads after decommissioning activities have been
completed; and roads, parking areas, and snow storage areas during snow
removal and storage activities.
    The USFS has also developed a National Core BMP Technical Guide
intended to improve USFS accountability and performance in managing
water quality programs. Many of the core BMPs in the National Core BMP
Technical Guide address water quality. The Technical Guide also
provides administrative directives to allow for the use of state,
tribal, and local requirements and information to develop site-specific
BMPs where needed (USFS, 2012). The USFS is currently developing a
second volume of the National Core BMP Technical Guide that will
provide standardized protocols for monitoring BMP implementation and
effectiveness across all USFS lands.
    Further, USFS has developed a suite of tools to identify and
prioritize road segments at risk of impacting water quality. These
tools operate at scales of detail ranging from using corporate road
databases and digital elevation data to using detailed GPS surveys.
These tools apply in watershed sediment load reduction plans for waters
listed as impaired under the CWA and in forest restoration projects
under the Collaborative Forest Landscape Restoration Program in the
states of Idaho, Montana, and California. For example, the Geomorphic
Road Analysis and Inventory Package (GRAIP) tool includes methods to
inventory roads and analyze the inventory for surface erosion, and
risks for gullies, landslides, and stream crossing failures. This tool
can be used in combination with other field observations to assess
forest roads.
    As an example of implementation of the USFS's BMP programs, the
USFS evaluated its Pacific Southwest Region BMP program from 2008-2010
through 2,237 BMP inspections. It found that BMP implementation was 91%
and effectiveness was 80%, with water quality affected at streams on
12% of sites. The USFS is continually improving and updating its
programs and tools as accomplishments are monitored and verified. In
2013, the USFS completed an interim National BMP monitoring database
for the National BMP program. The USFS expects to integrate this
interim database into an enterprise data management system in the
future which will extend reporting and analysis capabilities of the
database.
    In fiscal year 2014, 97 USFS administrative units completed a total
of 600 BMP evaluations as part of implementing in the National BMP
monitoring program. As discussed above, the USFS national core BMPs
address 11 subject areas that potentially could affect water quality,
including ``road management activities.'' Nine monitoring protocols
have been developed for the road management activity BMPs. At least 1
BMP evaluation was completed on 87% of the USFS administrative units;
over 100 evaluations were conducted for road management activity BMPs.
Of the 600 total evaluations, 94% included implementation assessments,
90% included effectiveness assessments, and 85% included both
implementation and effectiveness assessments.
    Overall, 61% of the BMP implementation evaluations were rated as
``fully implemented'' or ``mostly implemented.'' In addition, 65% of
the BMP effectiveness evaluations were rated as ``effective'' or
``mostly effective.'' For sites where BMP implementation and
effectiveness were both evaluated, 56% had composite ratings of
``excellent'' or ``good.'' For road management activities,
approximately 70% of the evaluations identified BMPs that were fully or
mostly implemented. With regard to road management BMP effectiveness,
approximately 50% of the completed evaluations were found to be
effective or mostly effective. In the study the USFS acknowledges that
these data show room for improvement in BMP implementation and
effectiveness but observes that prior to development of the National
BMP Program, it was impossible to report on BMP implementation and
effectiveness on a national scale in a coherent, understandable, and
useful way.
    In December 2015, the USFS published the National Best Management
Practices Monitoring Summary Report for the two-year BMP phase-in
period of fiscal years 2013 and 2014 following the launch of the 2012
National Best Management Practices program. That report summarizes the
national results of the two year phase-in period of national BMP
monitoring. The report demonstrates the capabilities of a consistent
nationwide monitoring program to document BMP performance (USFS, 2015).
In addition, as part of the Watershed Condition Framework, the USFS is
currently undertaking a five year re-assessment to assess changed
conditions of USFS watersheds.
    For example, USFS is using outputs from the GRAIP tool, mentioned
previously, in combination with associated field observations to assess
the effectiveness of road decommissioning in Idaho, Montana (Cissel et
al., 2014a), Oregon, Utah, and Washington. BMPs implemented as part of
the decommissioning efforts resulted in a 79% reduction in fine
sediment delivery to streams (Cissel et al., 2014b).
    The USFS implements best practices to control stormwater from
forest roads on a program-wide scale in a number of ways, as well as
ensuring that specific projects are implemented properly. Where a USFS
road crew is in place, the agency performs maintenance and
construction/reconstruction to the extent the law allows. BMPs are
followed according to USFS policy, incorporating any national,
regional, and local level BMPs. Crews work closely with local resource
specialists to ensure work is being performed according to BMPs. When a
project is awarded under a contract, clauses, provisions, mitigation
measures, and BMPs are incorporated into the plans, specifications, and
contract documents. For example, some contract provisions require the
contractor to preserve, protect, and minimize the impacts from soil
erosion to streams, lakes, and

reservoirs.\12\ A Contracting Officer or their certified designees
monitor work performed by the contractor to ensure work compliance with
the terms and conditions set forth in the contract.
---------------------------------------------------------------------------

    \12\ See BLM. (2011). Contract for the Sale of Timber and Other
Wood Products Lump Sum Sale.
---------------------------------------------------------------------------

    The USFS is a recognized leader in establishing road crossing
techniques that provide for aquatic organism passage, or the ability
for fish and other aquatic life to move up or downstream under roads.
In 2005, the USFS created the National Inventory and Assessment
Procedure to evaluate the effectiveness of current and remediated fish
passages (USFS, 2005). Over 1,600 miles of habitat were restored in
fiscal years 2011-2013 by aquatic organism passage projects funded
through the USFS Legacy Roads and Trails Restoration program among
others (USFS, 2014).
2. Summary of Bureau of Land Management Programs
    BLM manages approximately 246 million acres of public lands (BLM,
2015). Most BLM lands are concentrated in 11 western states with
scattered tracts in the various eastern states. Of the 246 million
acres, approximately 50 million acres are forest or woodlands where
approximately 6-7 million acres are managed for sustainable timber
harvests. These areas are generally mesic sites with annual average
precipitation that usually exceeds 15 inches per year. Traditional
timber harvesting on BLM property occurs primarily in northern
California, Colorado, Idaho, Montana, Oregon, and Wyoming, with minimal
harvest occurring in Alaska, Arizona, Nevada, New Mexico, and Utah. BLM
uses several tools including land use plans, Memoranda of Understanding
(``MOU'') with states and other federal agencies, timber sale
contracts, and training to ensure protection of water resources.
    Most BLM lands are managed pursuant to the Federal Land Policy and
Management Act of 1976 (FLPMA), at 43. U.S.C. 1712, which requires
public lands to be managed under the principles of multiple-use and
sustained yield. BLM's land use planning regulations at 43 CFR part
1600 establish a land use planning system for BLM-managed public lands.
Similar to the USFS, a full suite of activities are authorized and
managed on BLM forests and woodlands, including timber harvesting,
hazardous fuel reduction treatments, recreation, fish and wildlife
conservation, oil and gas activities, and grazing. Authorized uses in
forests and woodlands such as timber harvesting often include road
construction and maintenance \13\ which are broadly governed by
policies, standards, and right-of-way agreements that ensure proper
design and upkeep.\14\
---------------------------------------------------------------------------

    \13\ Bureau of Land Management estimates that as of 2014 there
were approximately 72,300 miles of roads on Bureau of Land
Management lands (Public Land Statistics Table 6.2, pg. 246). Only a
subset of these roads are located in forested environments that
would have the potential to contribute to stormwater runoff (Bureau
of Land Management Supplemental Response 3/29/16).
    \14\ http://www.blm.gov/wo/st/en/prog/more/forests_and_woodland.html.
---------------------------------------------------------------------------

    One source of guidance for proper development of BLM land use plans
is BLM's Land Use Planning Handbook. The Handbook provides broad agency
direction for BLM to use BMPs to meet the standards and goals of the
CWA and address various protection measures to mitigate impacts to
human health concerns, ecosystem health, riparian areas, and overall
watershed conditions, and to meet state and local water quality
requirements (BLM, 2005).
    BLM state offices enter into interagency MOUs with state and other
federal agencies designed to ensure that they cooperatively meet state
and federal BMPs and water quality rules and regulations related to
point and nonpoint source water pollution from BLM managed lands.\15\
These MOUs clarify such issues as jurisdictional and statutory
authorities, monitoring responsibilities, implementing effective BMPs,
prioritizing restoration activities, and developing strategies to meet
water quality standards. The Idaho Nonpoint Source Management Plan
provides one example of such an MOU (Idaho DEQ, 2015). In addition,
several components of BLM state and national level manuals apply to
ground-disturbing activities and provide for consistent implementation
of BMPs.\16\
---------------------------------------------------------------------------

    \15\ An example of an interagency MOU between Bureau of Land
Management, other federal agencies and the Idaho Department of
Environmental Quality, can be found at http://www.deq.idaho.gov/media/1041346-nps_program_implementation_mou_2013.pdf.
    \16\ Bureau of Land Management Manual 9113 (Roads), 9115
(Primitive Roads including BMPs from the Surface Operating Standards
and Guidelines for Oil and Gas Exploration and Development), 7240
(Water Quality), Manual 5000 Forest Management (pertaining to timber
sale contracts and specific contract provisions to apply to forest
roads to address water quality protection).
---------------------------------------------------------------------------

    Finally, all BLM timber sales contracts contain standard contract
requirements that expressly require that the purchaser must comply with
all applicable state and federal laws and regulations pertaining to
water quality. Often, they include special provisions deemed necessary
(e.g., restrictions on wet weather operations, conditions addressing
Endangered Species Act requirements, soil and aquatic protection
requirements, etc.).\17\ Individual BLM offices consistently add
special provisions to timber sales as well as other ground disturbing
activity contracts to ensure effective BMP implementation. Appropriate
BMPs are identified at the Resource Management Plan level, analyzed
during site-specific NEPA review process, and implemented in various
ways such as direct performance by BLM crews or through a timber sale
contract.
---------------------------------------------------------------------------

    \17\ ``Bureau of Land Management Standard Timber Sale Contract
Language,'' Bureau of Land Management Form 5450-004, Sections 26,
27, & 28.
---------------------------------------------------------------------------

    BLM also provides training for their specialists in all aspects of
resource management including engineering (to include roads and
facilities), forest management, fish and wildlife management, and
hydrology. Training curricula include: Review of existing and new state
and federal regulations, manuals, handbooks, and policies including
compliance with BMPs; preparing and administering contracts; review of
interagency agreements or MOUs; review of updates on monitoring,
evaluating, and reporting protocols and agency monitoring databases;
review of Resource Management Plans and amendments; and conducting
National Environmental Policy Act reviews.
    BLM incorporates BMPs into land use plans that include management
of forest roads. The recently released western Oregon Proposed Resource
Management Plan/Final Environmental Impact Statement, Appendix J
provides one example of such a plan (BLM RMPWO Vol. 3 Appendix J,
2016). The BMPs for the western Oregon Proposed Resource Management
Plan address various anticipated resource management actions including:
Road and landing maintenance and construction, timber harvest
activities, silviculture activities, surface source water for drinking
water, and recreation management. These BMPs were developed in
coordination with Oregon Department of Environmental Quality to
cooperatively meet state and federal water quality regulations.
Additional BMPs could be required for a particular project depending on
site-specific needs and subsequent implementation and effectiveness
monitoring. BLM field offices review the land use plan BMPs and select
and apply the appropriate and applicable BMPs for a particular project.
Those BMPs are incorporated into on-the-ground operations like timber
sales, road maintenance, road construction, and riparian restoration
projects.

    Although the BLM does not have a national BMP monitoring database
like the USFS, it works closely with a number of state and federal
agencies to annually monitor, evaluate, and report BMP compliance and
effectiveness. One example demonstrating the success of resource
management plans to protect water quality is the Northwest Forest Plan
(NWFP). Approximately 2.5 million acres of forested BLM land falls
within the area covered by the NWFP and those acres have been managed
consistent with the NWFP standards and guidelines. All of those
standards and guidelines were incorporated into the 1995 western Oregon
resource management plans.
    The Aquatic Conservation Strategy is an important element of the
NWFP, which incorporates into the resource management plans the
implementation of a riparian reserve system (e.g., buffers) along
streams as well as reducing road densities. Since 1995, western Oregon
BLM Districts have decommissioned or obliterated over 883 miles of
roads.
    As mentioned above, BLM has released a proposed resource management
plan and a final environmental impact statement for western Oregon BLM
Districts to revise the 1995 resource management plans. Under the
proposed resource management plan, the riparian reserve system, along
with a late successional forest reserve system, would increase from 57%
following the 1995 resource management plan to 64% following new
guidelines. BLM has worked closely with over 20 cooperating agencies
including U.S. Fish and Wildlife Service, National Marine Fisheries
Service, and EPA to continue a comprehensive and regional strategy to
maintain and improve aquatic resources in alignment with the
overarching ecosystem principles and intent of the Aquatic Conservation
Strategy of the NWFP under the new RMP.
    The recently released ``Northwest Forest Plan Interagency Regional
Monitoring: 20 Year Report, Status and Trends of Watershed Condition''
report summarizes the results of the twenty year interagency effort to
implement an array of water quality protective measures in the Aquatic
Conservation Strategy to maintain watershed health in that region
(Northwest Forest Plan, 2015). The NWFP Aquatic Conservation Strategy
consists of four components: Riparian reserves, key watersheds,
watershed analysis, and watershed restoration. Once watershed
conditions were evaluated and resource needs were identified, multiple
agencies, as well as public stakeholders, partnered to complete
millions-of-dollars' worth of watershed restoration work include:
Providing fish passages through culvert removals, replacements, or
bridge construction; obliterating, closing, or relocating streamside
roads; vegetating disturbed areas; reducing hazardous fuel loads;
upgrading road surfaces to reduce sediment runoff; and removing dams.
Implementation of these four components has resulted in improved
watershed conditions in many watersheds.
    The recently released monitoring report's objective was to evaluate
whether the NWFP Aquatic Conservation Strategy is achieving the goal of
maintaining and restoring the condition of watersheds throughout the
region covered by the NWFP. The report evaluated two subject areas:
Upslope riparian areas for all watersheds with at least 5% federal
ownership, and in-channel stream data (e.g., temperature, sediment, and
macroinvertebrates). The report compares the effectiveness of
management practices under the aquatic conservation strategy direction
for two periods: 1993 and 2012 for upslope riparian assessment, and
rotational sampling between 2002-2009 and 2010-2013 for in-channel
stream assessment. These monitoring data were used to detect trends and
evaluate stream and upslope riparian conditions for 1,974 watersheds in
the Pacific Northwest.
    The report signified that there has been a slight positive shift in
upslope riparian condition. Sediment scores were generally very high,
indicating a low risk of roads delivering sediment to streams. Sharp
declines in assessment scores were mainly driven by large wildfires,
and were offset by moderate, broad-scale improvements in vegetation,
and focused improvements related to road decommissioning.
    BLM also uses technical tools for evaluation, planning, and
assessment of water quality. BLM is applying the USFS GRAIP tool, as
well as others, in western Oregon watersheds to assess the
effectiveness of road decommissioning and in sediment load reduction
plans for waters listed as impaired under the CWA. These tools will
also be used to prioritize the backlog of deferred maintenance needs
that are later identified in the western Oregon Final Environmental
Impact Statement, Chapter 3, Trails and Travel Management.
    Outside of western Oregon, BLM is involved with various state,
regional, and national water quality monitoring efforts to assess
management effectiveness including indirect effectiveness of BMPs
related to forest management and roads. For example, BLM cooperates
with the Montana State Environmental Quality Council to monitor how
forest practices are affecting watersheds in Montana. Montana conducts
BMP field reviews on state, federal, and private industrial and non-
industrial forest lands to monitor BMP implementation and
effectiveness. Montana's 2014 BMP review concluded that 96% of BMP
practices were effective on federal lands (Montana DNRC, 2014).
    BLM has conducted a number of successful watershed restoration
efforts to improve water quality on BLM lands. One example is the BLM
Headwaters Forest Reserve Road Restoration Project in California. Since
2000, BLM has worked with the Pacific Coast Fish, Wildlife and Wetlands
Restoration Association to decommission and restore 26 miles of old
logging roads throughout headwaters. An additional 5 miles of
decommissioning is planned for the next several years.\18\
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    \18\ http://blm.gov/ca/st/en/prog/nlcs/Headwaters_ForestReserve/restoration.html.
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3. Federal Programs Are Evolving and Improving
    Both the USFS and BLM have improved their programs that address
water quality and stormwater from forest roads over the last several
years. As noted above, the USFS launched a new National BMP program in
2012 and is currently monitoring the program for results. In addition,
the USFS has enhanced its Road Preconstruction Handbook on Design \19\
as well as the Transportation Structures Handbook on Hydraulics and
Watershed Protection \20\ to include design considerations for the
construction and reconstruction of forest roads which minimize road and
drainage impacts to the watershed. USFS Technology and Development
Centers have created a number of publications to assist designers when
addressing road/water interactions.\21\ BLM has taken extensive efforts
to improve its protection and restoration efforts of watersheds by
addressing key resource areas and improving resource management plans.
Even with limited resources, federal programs are using new technology
to target highest priority problems in watersheds to mitigate water
quality impacts and monitor watershed health and project effectiveness.
Improved resource management plans and technology will

likely continue to evolve and lead to greater improvements.
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    \19\ See FSH 7709.56 Chapter 40 at http://www.fs.fed.us/dirindexhome/dughtml/fsh_1.html.
    \20\ See FSH 7709.56b Chapter 60 at http://www.fs.fed.us/dirindexhome/dughtml/fsh_1.html.
    \21\ http://www.fs.fed.us/eng/pubs/.
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C. Third-Party Certification BMP-Based Programs

    In addition to state and federal forest road BMP programs,
participation in third party forest certification programs has been
increasing rapidly in the U.S. Forest management certification arose to
foster an improved stewardship of working forestlands. Programs such as
certifications, which provide information and disclosure to consumers,
can generate significant beneficial impacts on the environment while
imposing fewer costs on industries and producers than direct regulatory
programs.\22\ Requirements to disclose information to citizens and
consumers can lead to beneficial change without specific behavioral
mandates. Certification provides a market incentive to encourage
landowner commitment to sustainable forest management. It also offers a
stamp of approval for forest management practices that meet standards
considered to be environmentally appropriate, socially beneficial, and
economically viable.
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    \22\ From Thaler, R., & Sustein, C. (2009). Nudge.
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    The three largest forestry certification programs in the U.S. are
the Forest Stewardship Council (FSC), the Sustainable Forestry
Initiative (SFI), and the American Tree Farm System (ATFS). These
programs promote higher rates of BMP implementation by mandating
compliance with applicable state and local laws and applicable BMPs,
whether regulatory or voluntary. They promote training/education
(including continuing education) and the use of trained loggers,
promote monitoring of forestry BMP implementation, and include
mechanisms for addressing instances where BMP nonconformance is
observed. FSC requires expanded protection for waterbodies where it
deems state programs or existing guidelines insufficient to protect
water quality.
    EPA received comments from state forestry agencies highlighting the
large areas of state forested land under one of the third-party
certifications identified above. For example, the Idaho Department of
Lands notes that over 1.5 million acres of forest lands in Idaho are
privately held or owned and managed by industries that maintain third-
party certification through SFI, FSC or ATFS (EPA-HQ-OW-2015-0668-
0072). Maine has almost 8 million acres of forest land which is third-
party certified (EPA-HQ-OW-2015-0668-0058); and in Mississippi almost
470,000 acres of public forest land is certified through the ATFS and
audited annually to ensure proper BMP implementation (EPA-HQ-OW-2015-
0668-0081).
    The discussion below provides a brief description of the three
major programs in the U.S., focusing on how they promote management
practices for mitigating water quality impacts resulting from
stormwater discharges from forest roads.
1. Forest Stewardship Council (FSC)
    FSC is an independent group with open membership that first
convened in 1993 to improve forest practices internationally through a
voluntary, market-based approach. FSC's program places an emphasis on
whole-forest conservation, including protecting water resources from
effects of stormwater discharges from forest roads. FSC is the only
standard that prohibits the use of certain pesticides and herbicides in
the timber industry and prohibits large clearcuts where they threaten
the ecological integrity of the forest.
    FSC's program includes a series of overarching principles and more
specific performance criteria. An example forest management
certification criterion is Forest Management Standard Criterion C6.5,
which states, ``[w]ritten guidelines shall be prepared and implemented
to: control erosion; minimize forest damage during harvesting, road
construction, and all other mechanical disturbances; and protect water
resources.'' One ``indicator'' of this criterion provides that
``[f]orest operations meet or exceed BMPs that address components of
the Criterion where the operation takes place.'' Another provides,

[t]he transportation system, including design and placement of
permanent and temporary haul roads, skid trails, recreational
trails, water crossings and landings, is designed, constructed,
maintained, and/or reconstructed to reduce short and long-term
environmental impacts, habitat fragmentation, soil and water
disturbance and cumulative adverse effects, while allowing for
customary uses and use rights. This includes: access to all roads
and trails (temporary and permanent), including recreational trails,
and off-road travel, is controlled, as possible, to minimize
ecological impacts; road density is minimized; erosion is minimized;
sediment discharge to streams is minimized; there is free upstream
and downstream passage for aquatic organisms; impacts of
transportation systems on wildlife habitat and migration corridors
are minimized; area converted to roads, landings and skid trails is
minimized; habitat fragmentation is minimized; unneeded roads are
closed and rehabilitated.

    Yet another indicator requires that, ``[a] monitoring program is in
place to assess the condition and environmental impacts of the forest-
road system.'' Certifiers are independent of FSC itself and the
companies they audit.
2. Sustainable Forestry Initiative (SFI)
    SFI is an independent, nonprofit organization that is responsible
for maintaining, overseeing, and improving the SFI certification
program. Across the U.S. and Canada, more than 280 million acres are
certified to the SFI Forest Management Standard and additional acres
are influenced by SFI Fiber Sourcing. SFI administers standards that
address forest sustainability broadly and water quality specifically.
The SFI 2015-2019 Forest Management Standard applies to any
participating organization in the U.S. or Canada that owns or has
management authority for forestlands and consists of measures designed
to protect water quality, biodiversity, wildlife habitat, species at
risk, and forests with exceptional conservation value. The measures
require developing a program for certification and compliance that
include monitoring BMPs during all phases of forestry activities,
mapping of water resources, and recordkeeping. For example, Objective 3
in the Standard addresses ``Protection and Maintenance of Water
Resources--To protect the water quality of rivers, streams, lakes,
wetlands, and other water bodies through meeting or exceeding best
management practices.'' Under Objective 3, Performance Measure 3.1
provides that ``Program Participants shall meet or exceed all
applicable federal, provincial, state and local water quality laws, and
meet or exceed best management practices developed under Canadian or
EPA-approved water quality programs.'' Performance Measure 3.2 further
provides, ``Program Participants shall implement water, wetland, and
riparian protection measures based on soil type, terrain, vegetation,
ecological function, harvesting system, state (BMPs), provincial
guidelines and other applicable factors.'' Objective 11 addresses
``Training and Education'' and Performance Measure 11.1 provides that
``Program Participants shall require appropriate training of personnel
and contractors so that they are competent to fulfill their
responsibilities under the SFI 2015-2019 Forest Management Standard.''
    SFI noted in its comments that 95% of the fiber delivered to SFI
Program Participant mills is delivered by harvesting professionals who
have been trained in sustainable forestry practices (EPA-HQ-OW-2015-
0668-0099). Additional Forest Management

Standard Objectives address Forest Management Planning (Objective 1)
and Legal and Regulatory Compliance (Objective 9).
3. American Tree Farm System (ATFS)
    ATFS is a program of the American Forest Foundation, and has a
forest certification standard that applies to small landowners in the
U.S. In 2009, ATFS had certified more than 25 million acres of
privately owned forestland managed by over 90,000 family forest
landowners. To become certified, ATFS landowners must own at least 10
acres of forestland and implement a written forest management plan; and
follow ATFS and AFF's 2015-2020 Standards of Sustainability for Forest
Certification for Private Forestlands. Tree farms are inspected and
certified to assure proper forest management that includes the
conservation of soil, water and wildlife. Standard 4: Air, Water, and
Soil Protection provides that ``[f]orest-management practices maintain
or enhance the environment and ecosystems, including air, water, soil,
and site quality.'' Performance Measure 4.1 provides that each
``[l]andowner shall meet or exceed practices prescribed by state
forestry BMPs that are applicable to the property.''
4. Third-Party Certification Programs Are Regularly Updated
    All three certification programs described above continue to update
standards on a regular basis. FSC has continually revised its
Principles and Criteria since 1994, with the most recent revision in
2012. FSC also developed a U.S. Forest Management Standard in July
2010, which was updated in September 2012. SFI revises its standards
every five years, and has most recently updated them in January, 2015.
ATFS is required to review its standards every five years as part of
its conditions for endorsement by the Programme for Endorsement of
Forest Certification, an umbrella organization that works with national
certification programs to promote sustainable forest management.\23\
All programs include opportunities for public and other stakeholder
input through public comment periods, webinars, and surveys.
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    \23\ http://www.pefc.org/.
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D. Existing EPA Tools That Address Stormwater Discharges From Forest
Roads

    In addition to the state, federal, and third-party BMP-based
programs described above, EPA administers other programs under the CWA
that address forest road discharges. Stormwater point source discharges
from forest roads have traditionally been treated similarly to nonpoint
sources of pollution under the CWA. EPA has addressed these discharges
under Sections 303, 305, and 319 of the CWA, and for the coastal areas,
under Section 6217 of the Coastal Nonpoint Source Pollution Control
Program under the Coastal Zone Act and Reauthorization Amendments
(CZARA).\24\
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    \24\ 16 U.S.C. 1455b.
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1. Section 319 of the CWA
    Under Section 319 of the CWA, EPA provides technical and financial
support to states in their administration of programs that address
pollution from nonpoint sources and activities that are not required to
be regulated by NPDES permits. Many state nonpoint source management
programs, which include components for the implementation of forestry-
related BMPs, were initiated and continue to be supported, in part,
through the use of Section 319 grant funds. According to EPA's 2011
National Evaluation of the Section 319 Program of the CWA, at least 15
state programs (AL, AR, CA, GA, KY, LA, MT, NC, OK, OR, SC, TX, VA, WV,
WY) administer state-wide forestry nonpoint source management programs
aimed at addressing problems associated with forest harvesting
operations. At least ten of these states (AL, AR, GA, KY, LA, NC, OK,
SC, VA, WV) rely on Section 319 grant funding through the relevant
state forestry agency to support water pollution controls associated
with forestry activities. In many of these states, the state nonpoint
source management control agency has a formal relationship with the
state forestry commission (or agency or department) to jointly
implement the forestry program. EPA guidance provides that states are
expected to revise and update their programs every 5 years as part of
ensuring eligibility for continued funding. (Nonpoint Source Program
and Grants Guidelines for States and Territories, 2013).
    States have flexibility under the Section 319 program to address
problems not addressed by the NPDES program. State Section 319 programs
may encompass watershed or water quality-based approaches aimed at
meeting water quality standards directly; iterative, technology-based
approaches based on best management practices or measures, applied on
either a categorical or site-specific basis; or a mix of these
approaches. State forestry BMP-based programs apply these approaches
using forestry BMP prescriptions and monitoring to address water
quality impairments including forest road runoff, and EPA approves
these programs as part of the Agency's review of state nonpoint source
programs.
    EPA has developed a Grants Reporting and Tracking System (GRTS) to
track projects that receive Section 319 grant funding. It also enables
EPA and the states to characterize the types of projects funded with
the use of Section 319(h) grant funds. A sample GRTS query of projects
shows that a number of Section 319(h) grants have been provided to
address forest roads, such as road construction and maintenance
projects, across the country. (Grants Reporting and Tracking System
Forestry Data Pull, 2016). Section 319 funding remains available to
address forest roads impacts in those states which have prioritized
this as an issue in their nonpoint source management plans.
    EPA has published various guidance documents to assist forest
owners in protecting waters from forestry related runoff, and to help
states to implement their Section 319 control program. For example, EPA
published the National Management Measures to Control Nonpoint Source
Pollution from Forestry (EPA, 2005) which includes BMPs for road
construction, reconstruction, and management. In 2007, EPA also
provided funding assistance to the Pennsylvania Department of
Transportation to develop a manual which provides national guidance on
effective and efficient practices to apply on dirt and gravel roads to
reduce erosion, sediment, and dust pollution.\25\
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    \25\ https://www.epa.gov/polluted-runoff-nonpoint-source-pollution/environmentally-sensitive-maintenance-dirt-and-gravel.
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2. Section 6217 of CZARA
    Section 6217 of CZARA addresses enhancements to state Coastal Zone
Management Act (CZMA) programs through development and implementation
of management measures for nonpoint source pollution control to restore
and protect coastal waters. This program, which is administered jointly
by EPA and the National Oceanic and Atmospheric Administration (NOAA),
directs states and territories with approved CZMA programs to provide
for implementation of management measures for controlling runoff from
activities within six categories of nonpoint source activities,
including forestry. Each coastal state or territory administering a
CZMA program (approved by NOAA) is required to

describe its program to implement nonpoint source pollution controls,
known as management measures, in conformity with a guidance published
by EPA under CZARA Section 6217(g). The guidance describes ten
management measures for forestry, including management measures for
planning, road construction/reconstruction, and road management. As
implemented under a state's CZMA program, CZARA requires enforceable
policies and mechanisms, as well as monitoring and tracking of
management measure implementation. NOAA and EPA are required to review
and approve coastal nonpoint programs of state and territorial CZMA
programs, and state authorities are responsible for implementing these
programs. In all, EPA and NOAA have reviewed the programs submitted by
33 states and territories and, in many cases, approved such submissions
with conditions. Over time, affected states and territories took action
to address the program conditions incrementally. Since the federal
agencies' initial approvals with conditions, all but 10 states have now
met all of the outstanding conditions.\26\
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    \26\ https://coast.noaa.gov/czm/pollutioncontrol/.
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3. Sections 305(b) and 303(b) of the CWA
    Under Section 305(b) of the CWA, states are required to assess the
quality of their surface waters and report this information to EPA. In
addition, every 2 years Section 303(d) requires states to identify on
their Section 303(d) lists, which they submit to EPA for approval,
those waters that are not attaining water quality standards, referred
to as ``impaired waters,'' and waters not expected to attain water
quality standards by the next two-year listing cycle, referred to as
``threatened waters.'' 33 U.S.C. 1313(d)(1)(A); 40 CFR 130.7(b). States
must also establish a priority ranking for establishing total maximum
daily loads (TMDLs) of pollutants for those waters. Id. TMDLs are
``pollution budgets'' that calculate how much of a given pollutant a
waterbody can assimilate, including a margin of safety, without
exceeding its applicable water quality standards. 33 U.S.C.
1313(d)(1)(C). TMDLs also allocate shares of the waterbody's
assimilative capacity for that pollutant to all of its point and
nonpoint sources. 40 CFR 130.2(i). Pollutant allocations may be
assigned to individual sources or aggregated to sectors such as forest
roads. Like Section 303(d) lists, states submit TMDLs to EPA for
approval.
    Impaired waters lists and TMDLs established for those impaired
waters are ``informational tools,'' Pronsolino v. Nastri, 291 F.3d
1123, 1129 (9th Cir. 2002), that help states evaluate the significance
of pollutant sources like forest roads in contributing to water quality
impairments in the U.S and guide implementation of measures to address
those impairments. Nationally, pathogens, mercury, other metals,
sediment, nutrients, and organic enrichment/oxygen depletion are
identified as the leading causes of impairment of all assessed water
bodies, based on state electronic data submissions from 2004 through
2010.
    While TMDLs at their core are pollutant loading calculations and
allocations, they also can provide a ``comprehensive framework'' for
pollution reduction in a body of water that fails to meet state water
quality standards. Amer. Farm Bureau Fed'n v. EPA, 792 F.3d 281, 287-
288 (3rd Cir. 2015). While approving or establishing a TMDL, EPA
requires ``reasonable assurance'' from the states that their TMDL
implementation plans will meet their stated goals, i.e., achieve the
TMDL's allocations and implement the applicable water quality
standards. Id. at 300. In support of EPA's recently revised TMDL for
Lake Champlain, for example, Vermont detailed specific actions it would
take to reduce the flow of sediment into Lake Champlain, including
enhancing its forest roads forest management practices to reduce
erosion (EPA Region 1, 2016).
    EPA considered national TMDL data to determine whether forest roads
have been identified as sources of water quality impairment and
addressed in TMDL load allocations designed to help meet water quality
standards.\27\ For example, Endicott (2008) indicates that in
California TMDLs were required for 10 river basins where silviculture
was identified as a potential source. EPA reviewed three of these TMDLs
(Upper Main Eel River and Tributaries TMDL, 2004; Mad River TMDL, 2007;
Redwood Creek TMDL, 2011) and found that roads and road related
landslides were the leading anthropogenic cause of sediment loading in
these watersheds. While EPA is unable to develop national-level summary
data to describe the degree of impairments from forest roads, EPA notes
that these and other TMDLs serve as existing CWA planning tools that
guide silviculture-related pollutant reduction activities on a
watershed-specific basis. See also Pronsolino v. Nastri supra at 1129,
where the Ninth Circuit upheld an EPA-established TMDL addressing
sediment pollution to the Garcia River caused by roads, timber-
harvesting, road surfaces, and road and skid trail crossings.
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    \27\ Unfortunately, EPA's national-level TMDL data does not
contain detailed information on specific impairment sources such as
forest roads. See, for example, the state report ``2012 Pennsylvania
Integrated Water Quality Monitoring and Assessment Report,'' which
identifies silviculture as responsible for 19 miles of impairments
on state waters. Even with state-level data such as this report
(which still does not make an explicit connection between forest
roads and impairments), EPA found it exceedingly difficult to gather
and assess this type of data.
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VII. Rationale for EPA's Determination Not To Establish New Regulatory
Requirements for Forest Roads Discharges

    As discussed above, many rigorous programs exist at every level of
government as well as in the private sector to address stormwater
discharges from forest roads in the United States. The programs are
regularly updated to reflect new technology and research findings, are
specifically tailored for the locations in which they are implemented,
and have high implementation rates. While these programs have
limitations and may vary in their effectiveness, EPA has concluded that
providing support for further improvement to these programs will be
more effective in further addressing discharges from forest roads than
would the establishment of a new federal regulatory program under CWA
Section 402(p)(6).
    A number of practical considerations also militate against the
establishment of a new federal regulatory program for forest roads.
These include the site-specific nature of the environmental problem,
the complex ownership arrangements of forest roads, and the limited
financial resources and legal tools for addressing these roads, all
discussed further below. A new program could require the expenditure of
substantial resources while duplicating or displacing existing
programs, with limited incremental environmental results. EPA has
determined that the theoretical benefits of creating a ``federal
floor'' do not outweigh its certain implementation problems, high
costs, and potential duplication or displacement of longstanding and
maturing federal, state, and private initiatives to address stormwater
discharges from forest roads.
    A primary difficulty in establishing a new, nationwide regulatory
regime is the variability in water quality impacts from forest roads
across the country. Many factors affect the extent to which BMPs are
needed and those best suited to particular locations, including
physical and meteorological factors (e.g., climate, topography, soil
type), which affect the nature of erosion and

sedimentation; the intensity of timber operations; and localized
scientific research and water quality data. A national regulation
addressing such site-specific issues would likely be either too general
or too complicated to be successful. The current multi-faceted, multi-
layered landscape best supports the site-and region-specific nature of
effective BMPs.
    The options laid out in Section 402(p)(6) of the CWA, the authority
pursuant to which EPA could have designated stormwater discharges from
forest roads for regulation, resemble the existing universe of forest
roads control programs in the U.S. The types of regulatory actions that
EPA could hypothetically take under Section 402(p)(6) are similar to
the types of requirements and programs that states and other entities
across the U.S. have already established, as described above. Section
402(p)(6) authorizes EPA to: ``establish priorities, establish
requirements for state stormwater management programs, and establish
expeditious deadlines'' which may include ``performance standards,
guidelines, guidance, and management practices and treatment
requirements, as appropriate.'' 33 U.S.C. Sec.  1342(p)(6). Many
``state stormwater management programs'' already exist and address
discharges from forest roads in a manner specifically tailored to
conditions in each state. See Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct
1326, 1338 (2013) (``Indeed, Congress has given express instructions to
the EPA to work `in consultation with State and local officials' to
alleviate stormwater pollution by developing the precise kind of best
management practices Oregon has established here. 33 U. S. C. Sec.
1342(p)(6)''). In addition, states, agencies and organizations,
including the USFS and EPA, have published ``guidelines'' and
``guidance'' discussing ``management practices.'' Every state and state
organization that submitted comments to inform EPA's determination
strongly opposed additional federal regulations. EPA has decided to
help states strengthen their programs rather than supplant them,
consistent with the CWA's policy to ``recognize, preserve, and protect
the primary responsibilities and rights of States to prevent, reduce,
and eliminate pollution'' and to plan the ``use . . . of land and water
resources.'' 33 U.S.C. 1251(b).
    Supporting rather than duplicating state programs is also
consistent with the CWA's policy of fostering governmental efficiency:
to ``encourage the drastic minimization of paperwork and interagency
decision procedures, and the best use of available manpower and funds,
so as to prevent needless duplication and unnecessary delays at all
levels of government.'' 33 U.S.C. 1251(f). An EPA program would add
another layer of bureaucracy for both regulators and the private
sector, sow confusion about program requirements and responsibilities,
and lead to an inefficient use of already thin management resources,
all for potentially limited environmental benefit.
    While Section 402(p)(6) could otherwise generally allow for
regulation through some sort of permitting, Congress has specifically
foreclosed that option for discharges ``resulting from the conduct of
the following silviculture activities conducted in accordance with
standard industry practice: nursery operations, site preparation,
reforestation and subsequent cultural treatment, thinning, prescribed
burning, pest and fire control, harvesting operations, surface
drainage, or road construction and maintenance.'' 33 U.S.C. 1342(l).
Congress has also precluded third-party citizen suits to enforce any
non-permitting program established under Section 402(p)(6) or any other
limitations applied to silviculture activities. In the absence of these
implementation and enforcement mechanisms, it would be difficult to
provide for effective federal implementation and compliance assurance
for a new set of national forest road discharges.
    Some commenters urged EPA to establish mandatory requirements
pursuant to Section 402(p)(6), including prioritization of forest
management areas, requiring road inventories, and monitoring for water
quality standards. Many of these elements are part of state programs
already. Requiring all forest landowners in the country to submit data
to EPA about roads on their properties would necessitate a resource-
intensive outreach operation. The large number of private family forest
owners in the U.S. and Internet broadband limitations in rural areas,
among many other factors, would make it difficult to ensure that forest
road owners and operators are aware of and comply with such this
requirements; legacy roads with no apparent owner would present even
greater challenges. Additionally, as one commenter pointed out, many
programs are targeted at certain impacted watersheds or aquatic
species. An inventory of all forest roads, many of which do not cause
water quality problems, does not necessarily provide information needed
to address these particular impacts. Obtaining forest roads inventory
information would likely be easier where large areas of forest are
managed by a single entity, such as the USFS, but those entities are
the ones most likely to already be engaging in inventory efforts (as
described in section VI.B.1 of this document). Given these challenges,
EPA does not believe that creating a new federal inventory of forest
roads is a cost-effective use of EPA's limited resources.
    Requiring water quality monitoring poses another distinct set of
problems. Water quality monitoring is in-situ (ambient water) sampling
for one or a selected set of environmental indicators. These metrics
can be biological (e.g., macroinvertebrates or fish community health),
chemical (e.g., pollutant concentrations), or physical (e.g.,
geomorphology). This approach is not typically used to assess one or a
few BMPs because in-situ water quality is influenced by multiple local
and upstream factors/sources, and statistical distinctions between
these factors and determining relative contributions may be impossible.
Endicott (2008) reported findings ``that the biotic and chemical
`noise' in larger streams renders the water quality effects of forestry
activities using BMPs undetectable.''
    EPA recognizes that existing forest road BMP programs have
limitations, including limited funding. Resource constraints are a
primary difficulty facing both state and federal programs, limiting
their abilities to implement and monitor BMPs. Yet a new set of
requirements from EPA would not address the funding gap. Indeed,
another federal program could divert resources from on-the-ground
stream protection efforts to bureaucratic reshuffling. EPA has decided
not to expend resources on creating, implementing, and enforcing a new
national program that may not tangibly improve water quality.

VIII. Facilitating Continuous Improvement of Forest Road Programs

    As discussed above, programs at the state, federal, and local
levels, as well as within the private sector, have demonstrated
positive momentum in strengthening efforts to address stormwater
discharges from forest roads. EPA seeks to further facilitate
continuing improvements in working to address water quality impacts
from forest roads. Thus, rather than superimposing additional EPA-
regulatory programs over existing programs, EPA plans to help
strengthen these existing programs by forming an ongoing dialogue with
all relevant stakeholders (including industry, environmental groups,
academics, and

government agencies at the federal, state, tribal, and local levels) on
program improvements, technical and policy issues, research results,
state of the art technologies, success stories, and solutions to
problem areas. This forum could provide an opportunity for stakeholders
to exchange information and expertise. EPA envisions that a major part
of these discussions will focus on specific problems and solutions to
forest roads, such as existing/legacy roads or stream crossings as well
as particularly effective forest road programs and best practices.
Working with stakeholders collaboratively, the forum could develop a
national compendium of highly effective components of private or
governmental forest roads programs to serve as a resource for states,
tribes, federal agencies, local government, and industry. The
compendium could serve as an indicator of expectations for development,
implementation, and/or revisions of forest road programs by
highlighting existing robust efforts and the latest developments of
evolving strong programs.

IX. Response to Key Comments on Existing BMP-Based Programs

    The discussion below responds to significant issues commenters
raised with regard to the effectiveness of existing BMP-based programs.
    Some commenters expressed concerns about the effectiveness of BMPs.
In response, EPA makes an important distinction between the well
documented ability of properly implemented BMPs to adequately control
the discharge of pollutants, and situations where BMPs are improperly
implemented or maintained (see multiple studies discussed in Part V).
As these studies generally conclude, most BMPs are highly effective
when appropriately designed and implemented; this includes choosing the
right practice for particular situations and ensuring proper operation
and maintenance. BMPs are ineffective or perform sub-optimally when not
properly sited, installed, or maintained. These paradigms hold true for
all water quality control technologies, not just BMPs, and underscore
the importance of vigilant operation and maintenance rather than a
conclusion that BMPs are not effective at protecting water quality. For
example, Wisconsin DNR (2013) found that when BMPs were applied
correctly no adverse impacts to water quality were found 99% of the
time, and Montana DNRC (2014) reported that Montana's forestry BMPs
were effective in protecting soil and water resources 98% of the time.
In addition, as with most technologies, it is important to note that
BMP science continues to evolve and improve.
    One commenter mentioned a study of two watersheds in the U.S.
Pacific Northwest region, which found that 44% of 80 sediment debris
slides were associated with roads, even though roads comprised only
3.1% of the area. However, the authors of the study concluded that
standard BMPs were the best approach to reducing erosion and sediment
delivery rates. This is the approach that states and others are already
pursuing in that region.
    Another commenter pointed to low BMP efficiency data in Edwards and
Williard (2010, as cited in Nolan et al., 2015) but the cited article
examined the efficiency of forest harvesting BMPs in reducing sediment,
not BMPs related to forest roads in particular. EPA also recognizes
that state BMP-based programs have limitations, including that they may
not be fully implemented, that their effectiveness differs based on
numerous variables, and the difficulty in measuring quantitative
results.\28\ A new federal regulatory program under CWA Section
402(p)(6), however, would not necessarily improve implementation rates,
especially given the new limitations in CWA Section 402(l), which
preclude the use of permits to implement any such program or of citizen
suits to enforce any new federal requirements.
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    \28\ For example, Virginia has an implementation rate of 78% for
forest road BMPs (SGSF BMP Report, 2012). In addition, the following
states report lower than the national average of 86.7% for BMP
implementation rates of stream crossing BMPs: Vermont, 68%; North
Carolina, 72%, Ohio, 78%, Maryland, 67%, and Oregon, 71%. (NASF,
2015).
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    A few commenters discussed specific state forest road programs,
such as Oregon's and Washington's. One commenter stated that Oregon's
forest roads program is too flexible and is not adequately enforced.
The commenter specifically identified the approval/rejection process
for written plans as not being sufficiently stringent because there is
no requirement to approve or deny a plan. With regard to Oregon (and
other states), given the nature and scope of the concerns posed by
forest road runoff, a reasonable degree of flexibility is valuable, as
it allows for a tailored approach to addressing forest road discharges.
See Decker v. NEDC, (``Oregon has invested substantial time and money
in establishing these practices. In addition, the development, siting,
maintenance, and regulation of roads--and in particular of state forest
roads--are areas in which Oregon has considerable expertise'').
    Another commenter stated that, in addition to requiring BMPs,
Washington State also requires water quality-based numeric criteria for
turbidity and has rules for antidegradation, and that this should be
required of all states. With regard to Washington State, EPA recognizes
that states currently have various approaches to addressing
sedimentation concerns (e.g., numeric and narrative turbidity
standards, dissolved oxygen standards, temperature standards, etc.) as
part of their water quality standards programs. EPA agrees that
applying numeric standards can be extremely effective in protecting
water quality. However, states are well situated to understand the
scope and nature of environmental concerns posed by forest road runoff
in their states and apply state water program requirements to those
concerns accordingly.
    Some commenters, urged EPA to implement a national water quality-
based monitoring program for forest roads. Requiring water quality
monitoring for stormwater discharges from forest roads is infeasible
for the reasons discussed in Section VII. Examining forest road BMP
implementation on existing roads indicates whether existing programs
are taking available and reasonable steps to address water quality
concerns. EPA recognizes that most evaluations and determinations of
BMP implementation are qualitative, but nonetheless, that information
constitutes the best available information for EPA to make its
decision. Extreme storms can pose challenges to the use and performance
of BMPs, but BMPs can be tailored to some degree in areas subject to
such events. A federal regulation would not alleviate risks posed by
extreme storms because it would not be fair or reasonable to impose
BMPs in all extreme storm events.\29\
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    \29\ NPDES Bypass and Upset provisions at 40 CFR Sections
122.41(m) and (n) providing relief in certain circumstances to NPDES
dischargers.
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    One commenter stated that forest road BMP programs tend to focus on
construction of new roads and fail to address older roads, often built
before BMPs were in place (i.e., they are either ``grandfathered in''
or subject to requirements only when brought back into use,
reconstructed, or at risk of significant failure). The commenter
observed that older roads can be significant sources of sediment since
they may be poorly located and built with few if any features to
control erosion (citing Endicott 2008, which includes some studies that
identify legacy roads as sources but do not

provide data regarding sediment discharged by legacy roads). EPA
recognizes that legacy roads present a challenge and a potential source
of sediment. Legacy roads are also the most challenging types of roads
to address through regulation, however. Legacy roads are often no
longer in use, so there may not be an ongoing silvicultural operation
to fund BMPs. They may have non-forest uses, also complicating
responsibility and liability assignment, or they may not be used for a
period of time while timber is growing and then they may be placed back
into use when it is ready for harvest. Legacy roads may also be so
overgrown with vegetation that their presence is no longer detectable.
    Nonetheless, several state programs require older roads to be
upgraded to current BMP standards if they are brought back into
service. Endicott (2008) indicates that 24 states had forest road BMPs
that address road closure. A more recent review indicates that 34
states have BMPs that address forest road retirement (State Program
Summary, 2016). Comments indicate that California, Washington, and
Oregon are among those states having programs addressing legacy road
issues.
    A few commenters stated that stream crossings for forest roads are
especially vulnerable locations that can lead to significant erosion.
One commenter stated that 5% of truck road stream crossings in the
southern Piedmont region of Virginia were not meeting the relevant
stream crossing BMPs (Nolan et al., 2015) and that failure to meet BMPs
in these areas will have a disproportionately negative impact on water
quality as compared to upland BMP violations. Another layer of
regulations from EPA, however, would not guarantee that the remaining
5% of stream crossings would incorporate appropriate BMPs. While stream
crossings are indeed a high risk area for forest road runoff, a recent
EPA analysis of state programs showed that 46 states (92%) have
developed BMPs for stream crossings. (State Program Summary, 2016).
Additionally, BMP guidance documents addressing road placement make
clear that roads should avoid or minimize stream crossings and riparian
areas. Thus, a BMP based approach reduces the incidence of road-stream
crossings and, when deemed unavoidable, BMPs have been developed to
install stream crossings while minimizing erosion.
    A commenter also stated that some states do not consider the
effects of diversion and natural disturbances when designing BMPs for
stream crossings. These are important factors to consider. They are
not, however, the only variables considered in a stream crossing
design; stream flow and volume, soil type, volume and type of vehicle
traffic, climate, and many other factors also play a role in
determining the optimal design for a stream crossing. Effective stream
crossing BMPs depend on site-specific conditions, reflecting the
difficulty of setting one-size-fits-all federal requirements. In one
study, researchers examined the effects of upgrading poorly designed
stream crossings and concluded that the enhanced stream crossings
produced little sediment and that improved stream crossings could
significantly reduce sediment contributions from forest roads (Nolan et
al., 2015). One commenter spoke favorably of several BMPs developed by
the USFS for use at stream crossings and recommended that EPA adopt
them nationally. EPA encourages state programs to consider USFS stream
crossing BMPs for their menus of BMPs.
    EPA also received several comments regarding the compliance and
monitoring aspects of state programs. One commenter stated that BMP
effectiveness rates are overstated and suggested that the appropriate
baseline for comparison should be forests in their natural conditions
with no roads, whereas most studies compare forest roads with BMPs to
forest roads with no BMPs. The commenter also asserted that, based on
three studies, the actual efficiency of forest road BMPs is 53-94%. EPA
notes in response that forest roads play a critical role in
silviculture, recreation, fire suppression, and other uses. EPA does
not expect forest roads to be absent from the landscape and therefore
does not think that virgin forest must always necessarily serve as the
baseline for measuring BMP effectiveness.
    A commenter also pointed out that most BMP monitoring \30\ is
conducted during dry periods, when effectiveness at preventing
stormwater runoff may be more difficult to discern. The commenter noted
that variability in BMP performance monitoring can be as high as 50-
100%, which would require frequent sampling to distinguish sediment
derived from forest roads versus other sources. A number of BMP
performance studies are conducted under wet weather conditions,
including most of those cited in Section V of this document. However,
BMP effectiveness also can be assessed to a large extent in dry
weather, as evidence of soil movement is often visible for a
significant time period after rainfall events. For example, gullying or
landslides will be clearly visible while sediment deposition in low
areas or waterbodies will also be visible.
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    \30\ BMP monitoring refers in this case to assessment of BMP
performance effectiveness, which includes verifying that the
structure/measures are in place and functioning. BMP monitoring is
different from water quality monitoring, which involves monitoring a
waterbody for particular environmental indicators.
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    Another commenter stated that standardizing BMP compliance
assessments and reporting protocols is necessary. They add that most
monitoring focuses on whether a BMP has been implemented, rather than
monitoring water quality for compliance with water quality standards.
The commenter cited data from Virginia that noted a 32% non-compliance
rate for stream crossing BMPs. EPA recognizes that states have used a
variety of monitoring and reporting mechanisms over time and that this
can inhibit broader analyses about BMP compliance. However, as
discussed in Section VI.A.2 of this document, two large groups of
states have adopted regional standardized monitoring protocols to
promote consistency in compliance assessment and reporting.
    First, the SGSF has been implementing a broad monitoring program in
13 southeastern states for nearly a decade. Second, the joint effort
between USFS and NAASF developed a similar standardized protocol for
evaluating BMP implementation and effectiveness. These two protocols
have spread a standardized monitoring process to a significant number
of states with active forestry programs. Such standardization efforts
are examples of the type of intra-state consistency that a federal EPA
program could theoretically institute; their spread in the absence of
EPA regulations provides an example in which a new EPA program would be
duplicative.
    Some commenters stated the lack of a national BMP program leads to
inconsistent BMP application and insufficient water quality
protections. EPA sees the range of designs in BMP programs as an
appropriate response to the diversity of conditions these programs are
intended to address. State or regional timber operations vary in
intensity, as do the types of forest management programs states or
other oversight agencies implement. BMPs used at a site will differ
depending on the factors above, as well as others, such as localized
scientific research that determines the most effective approaches to
managing stormwater. Within different state frameworks, certain aspects
of BMP programs are largely consistent. For example, state BMP
categories typically encompass

forest road location/design/construction; road maintenance; stream
crossings; stream management zones/bank stabilization/buffer strips;
and many states address forest road retirement and wet weather/winter
use.
    Many states are taking the lead in enhancing their programs to
encompass newly developed methods to reduce water quality impacts from
forest roads. For example, CA's ``Road Rules, 2013'', which was first
implemented in January 2015, requires that all forest roads used as
part of an approved plan be hydrologically disconnected from waters
(EPA-HQ-OW-2015-0668-0055). In the Southern region, the Southern Group
of State Foresters Silviculture Best Management Practices
Implementation Monitoring framework requires all southern states to
include in their implementation monitoring reports counts of water
quality risks. Finally, while ``traditionally a problem area within all
states, compliance with stream crossing BMPs continues to improve as a
result of increased education of landowners and managers as well as
increased acreage of certified forestland in the region (Schilling et
al., 2009).'' [Ice et al., 2010.]
    One commenter stated, ``Congress has failed to adequately invest in
the National Forest System roads budget. Annual spending has declined
from over $236 million to less than $159 million in the last six fiscal
years, when adjusted for inflation.'' This has helped to contribute to