EPA Decides No Additional Regulations Are Needed to Address Stormwater Discharges from Forest Roads Under the Clean Water Act

The Environmental Protection Agency (EPA) has determined that, at this time, no additional regulations are needed to address stormwater discharges from forest roads under Section 402(p)(6) of the Clean Water Act (CWA).  The decision, available here, means that stormwater run-off from forestry roads all over the United States does not require a federal discharge permit under the CWA.  

This decision is a response to the 9th Circuit’s remand in Environmental Defense Center, Inc. v. U.S. EPA, 344 F.2d 832 (9th Cir. 2003), which ordered EPA to consider whether the CWA required it to regulate stormwater discharges from forest roads.  While CWA Section 402(p) requires National Pollutant Discharge Elimination System (NPDES) permits for certain stormwater discharges specified in subsection (2), subsections (5) and (6) provide EPA discretion in selecting which discharge sources to regulate based on studies that identify, among other things, ‘‘those stormwater discharges or classes of stormwater discharges for which permits are not required.”

Analyzing data on an array of existing BMP-based programs obtained during the comment period, EPA determined that existing state programs are tailored to address state and site-specific factors, show high implementation rates, and continue to improve.  At the federal level, EPA determined that the U.S. Forest Service and Bureau of Land Management programs that address water quality and stormwater from forest roads are evolving and improving.  EPA noted that it too administers programs under the CWA that address forest road discharges, traditionally treated similarly to nonpoint sources of pollution under the CWA, under Sections 303, 305, and 319 of the CWA.  And in addition to state and federal forest road BMP programs, EPA determined that participation in third party forest certification programs has been increasing rapidly in the U.S. and that those programs update their standards on a regular basis. 

EPA considered comments that federal regulatory requirements could promote national consistency and improvements, but found that wide variations in topography, climate, ownership, management, and use across the nation’s forest roads render the establishment of any nationwide regulatory program problematic at best. 

Acknowledging that the existing programs have limitations and varied effectiveness, EPA concluded that facilitating further improvement of these programs will be more effective in addressing discharges from forest roads than would the establishment of a new federal regulatory program.  EPA plans to do so by providing a forum through which all stakeholders (including industry, environmental groups, academics, and government agencies) could exchange information and expertise on program improvements, technical and policy issues, research, technologies, successes, and solutions.

If you have any questions regarding the EPA’s decision, please contact Brian Rayback (207-791-1188) or Lisa Gilbreath (207-791-1177).