The Clean Water Act and Your Woodland Trails and Access Roads

By Duane McCoy

In case you did not know, there is currently a fight going on across the nation to keep you from having to get a permit in order to have or build a forest access road. The 9th District Court in the Northwest last year came down with a decision (Northwest Environmental Defense Center v Doug Decker, the Oregon State Forester in his official capacity, et. al.) that all forest access roads are an industrial practice that needs to be regulated under the National Pollutant Discharge Elimination System (NPDES) under the Clean Water Act.  This would have already had direct affects on the industry in the Northwest and probably federal ground already, but congress put a moratorium on the EPA changing their rules and standards concerning this decision until September 30, 2012. 

Currently, the EPA is reviewing their rules to confirm why Forest Access Roads do NOT need a NPDES permit, and Congress has been working to amend the Clean Water Act, but these two endeavors may or may not help the forest products community in Indiana.  Also, there are many states, including Indiana, that have filed against the 9th District’s decision to the Supreme Court, and the Supreme Court has determined that they are going to hear the case.

What could this mean to you?  We are not really sure at this point, but at the worst, it could mean a long permitting process for every timber harvest in every state that would have to go through each state’s environmental protection agency.  At best, we will have to more closely evaluate how much impact forest roads have on water quality and the way EPA will direct the states on how or what to regulate in regards to these roads in the future.  We gather this water quality information regularly already in a qualitative sense, but there is little quantitative data to show how much of an impact, little or big, that forest access roads have on water quality throughout the nation.  Below is an excerpt from the Federal Register/Vol. 77, No. 100/Wednesday, May 23, 2012/Proposed Rules, which can be found in its entirety at this link http://www.gpo.gov/fdsys/pkg/FR-2012-05-23/pdf/2012-12524.pdf.

III. Approaches for Managing Stormwater Discharges from Forest Roads

The Agency is considering several options for addressing significant water quality impacts caused by stormwater discharges from forest roads. EPA is considering designating a subset of stormwater discharges from forest roads for appropriate action under section 402(p)(6) of the Act. Section 402(p)(6) allows the EPA flexibility in issuing regulations to address designated stormwater discharges and does not require the use of NPDES permits. 33 U.S.C. 1342(p)(6). Section 402(p) allows for a broad range of regulatory and nonregulatory approaches and provides flexibility as to which stormwater discharges, if any, should be designated under Section 402(p)(6). For example, in lieu of regulation, EPA could support or defer to other federal, state, tribal, local, and voluntary programs. If EPA does determine that regulation under Section 402(p)(6) is appropriate for a subset of stormwater discharges from forest roads, such a regulation might address discharges only from roads used for logging or might address discharges based on contribution of the discharge to a water quality problem. Section 402(p)(6), in turn, provides considerable flexibility to EPA if it does designate any discharges for regulation in how it regulates those discharges. EPA intends to further study the impacts of stormwater discharges from forest roads, available management practices and approaches, and the effectiveness of existing Federal, State, Tribal, local and private programs in managing these discharges, as it considers appropriate next steps.

Another thing to consider and remember is that you can currently be held accountable under the Clean Water Act and other federal and state laws for practices carried out on your land which impact water quality. If you have a timber sale on your land and there are large impacts to water quality, you can be held responsible under these laws and forced to fix the problem(s) and/or be fined. What is being fought over now is whether or not you have to get a permit under these laws in order to have, maintain, or construct new forest access roads.

What can you do? Many are already fighting for you, the forest products community of Indiana, at the state and federal levels, but you can help by making sure these access roads and all parts of your timber harvests are laid out, constructed, used, and closed out well. Also, you can join the Indiana Forest and Woodlands Owners Association (IFWOA), the Indiana Hardwood Lumbermen’s Association (IHLA), or other organizations and associations as a member and keep yourself informed and involved.

Duane McCoy is the Timber Buyer Licensing Forestry for the Indiana Division of Forestry.  Duane first joined the Division in 1996 and currently works on the Timber Buyers Licensing program, Indiana Forestry Best Management Practices (BMP) program, Watershed Conservation through Forestry program, and the Hoosier Ecosystem Experiment (HEE) Research Forest project.