February 12, 2016
U.S. Environmental Protection Agency Headquarters
1200 Pennsylvania Avenue, N.W.
Office of Water
Office of Wastewater Management
Mail Code: 410M
Washington, D.C. 20460
RE: Notice of Opportunity to Provide Information on Existing Programs That Protect Water Quality From Forest Road Discharges (Docket ID No. EPA-HQ-OW-2015-0668)
Dear Mr. Chumble:
The Western Governors’ Association (WGA) appreciates the opportunity to provide comments on the Environmental Protection Agency’s (EPA) request for Information on Existing Programs That Protect Water Quality From Forest Road Discharges (Docket ID No. EPA-HQ-OW-2015-0668) (EPA Notice).
STATEMENT OF INTEREST
WGA represents the Governors of 19 western states and 3 U.S.-flag islands. The association is an instrument of the Governors for bipartisan policy development, information exchange and collective action on issues of critical importance to the western United States.
Clean water is essential to strong economies and quality of life. In most of the West, water is a scarce resource that must be managed with sensitivity to social, environmental and economic values. States are in the best position to manage the water within their borders because of their unique understanding of the values.
As stated in WGA Policy Resolution 2014-04, Water Quality in the West, stormwater runoff from forest roads has been managed as a nonpoint source of pollution under EPA regulation and state law since enactment of the Clean Water Act (CWA). Western Governors have long been concerned about efforts to treat forest roads as point sources under the National Pollutant Discharge Elimination System (NPDES) program. Western Governors support solutions consistent with the long-established treatment of forest roads as nonpoint sources. It is important, however, that individual states determine the scope and application of any EPA best management practices on forest roads across ownership within each state.
STATE AUTHORITY OVER WATER
States have federally-recognized authority to manage and allocate water within their boundaries. CWA Section 101(g) expressly says that, “the authority of each state to allocate quantities of water within its jurisdiction shall not be superseded, abrogated, or otherwise impaired by this Act.”
States and EPA work as co-regulators under the CWA and the Safe Drinking Water Act (SDWA). The U.S. Congress has provided a statutory foundation wherein states have the primary responsibility to implement certain federal program responsibilities such as the control of nonpoint source pollution. EPA should be giving deference to state programs designed to meet the goals and requirements of the federal acts.
Different forests, even those in close proximity to one another, may have different characteristics in terms of topography, tree species, soil types, wildlife habitat, geology and hydrology. In order to be effective, the approach to protecting water quality from activities on forest roads must be adapted to local conditions and circumstances. Not only are the states currently managing programs to protect water quality, the states are best suited to do so.
When a state is effectively implementing a program, the role of federal agencies like EPA should be limited to funding, technical assistance and research support. States should be free to develop, implement and enforce program requirements using approaches that make sense in their specific jurisdictions.
1. The Clean Water Act does not require EPA to regulate forest road stormwater discharge.
Congress enacted the CWA in 1972. The CWA provided EPA with the authority to implement a consistent program throughout the United States designed to protect the waters of the nation from pollution. See, e.g., Arkansas v. Oklahoma, 503 U.S. 91, 110 (1992). The cornerstone of the CWA is a permitting requirement for “point source” discharges. This permitting program is the NPDES permitting program.
In Decker, Oregon State Forester, et al. v. Northwest Environmental Defense Center, 113 S. Ct. 1326 (2013), the U.S. Supreme Court held that discharges of stormwater that ran off logging roads into ditches, culverts and channels did not require an NPDES permit.
Any effort to regulate stormwater discharges must come under non-point source programs.
States have the authority to manage non-point source activities. Congress recognized the fact that non-point source pollution is unique to each state when it added Section 319 to the CWA in 1987. Section 319 required states - not EPA - to develop plans for any non-point source activities that are causing a state’s water to fall short of the state’s water quality goals.
2. EPA should leave the management of stormwater discharges from forest roads to the states, unless otherwise determined by a specific state.
Nationwide, the U.S. Forest Service has approximately 378,000 miles of roads, covering 193 million acres, under its jurisdiction. See U.S. Forest Service, Implications of Decision in NEDC v. Brown to Silvicultural Activities on National Forest System Land, Doc. 1570-1 (Sept. 7, 2010).
Federal land is often intermingled with state and private land, and the use of state and private land may be dependent upon access across federal land. In some circumstances, forest roads may be used for other activities, including recreational off-road vehicles, access to federal grazing allotments, moving livestock from pasture to pasture, and maintenance of fences and water infrastructure. Since federal regulations discourage construction of duplicate roads, separate road systems have not been created for each specific purpose. See e.g. 43 C.F.R. 2812.0-6(a).
When invited by an individual state to play a role in the states’ management of stormwater discharges from forest roads, EPA should put its primary focus on ensuring programs are in place and working to control stormwater runoff and mass wasting associated with forest roads on federal lands.
3. EPA should consider a great variety of existing programs that address water quality impacts attributable to stormwater discharges from forest roads.
More than 75 percent of our national forest and grassland system is located in Western States. Even so, the EPA Notice only highlights management programs in Maine, North Carolina and the Menominee Indian Tribe Reservation in Wisconsin.
Water quality protection on forest roads in the West presents unique challenges. It is imperative that EPA works with Western Governors and state regulators to obtain information on programs that address water quality impacts from forest road stormwater discharge.
4. EPA should consult with states during any further settlement negotiations in Environmental Defense Center, Inc. v. U.S. EPA.
The EPA Notice is intended to assist EPA in responding to the remand in Environmental Defense Center, Inc. v. U.S. EPA, 344 F.2d 832 (9th Cir. 2003) that directs EPA to consider whether the CWA requires EPA to regulate forest roads. The remand results from a settlement agreement where the EPA agreed to issue a final determination on whether the CWA requires regulation of stormwater discharges from forest roads by May 26, 2016.
Western Governors have identified specific areas where state environmental and natural resource management prerogatives are diminished by federal agencies’ settlement of litigation. Where their roles and responsibilities are impacted by settlement negotiations, states need, at a minimum, to be consulted.
CONSULTATION WITH THE STATES
This issue highlights an ongoing concern of Western Governors on the nature and scope of consultation of federal agencies with states. As stated in the WGA Resolution 2014-09: Respecting State Authority and Expertise, “Western Governors support early, meaningful and substantial state involvement in the development, prioritization and implementation of federal environmental statutes, policies, rules, programs, reviews, budget proposals, budget processes and strategic planning.”
Prior to publishing a proposed rule, EPA should consult with Governors and state regulators respectively and this should occur early – pre-rulemaking. This should include substantive consultation with states during development of rules or decisions and a review by states of the proposal before a formal rulemaking is launched – before proposals are sent to the White House Office of Management and Budget for finalization.
As part of the early consultation with Governors and state regulators, EPA should provide the following:
- A detailed state consultation timeline and plan for obtaining individual state comments;
- All technical and scientific materials used to support any proposed rule and denote whether any such materials were peer-reviewed;
- A statement indicating which statute(s) (including specific statutory sections) confer authority to regulate on the EPA;
- A copy of a federalism assessment or the reason why EPA did not complete a federalism assessment; and
- A statement indicating why existing state programs are insufficient to address the problem and if the proposed rule conflicts with state programs and in what way.
Should you have any questions about these comments or require additional information, please contact James D. Ogsbury, Executive Director, Western Governors’ Association.
Matthew H. Mead
Governor, State of Wyoming
Governor, State of Montana
Vice Chair, WGA