The Honorable Lisa Jackson
U.S. Environmental Protection Agency
Dear Administrator Jackson:
Forests play an important role in the health of our environment and our economy-providing clean air and water, wildlife habitat, recreational opportunities, forest products, and jobs. As strong advocates for maintaining healthy and sustainable forests and ensuring water quality, members of the undersigned state organizations support laws, regulations, and policies that contribute to that goal. For example, ongoing state efforts to protect water quality through best management practice (BMP) programs have served to effectively manage nonpoint source pollution from forestry activities for over three decades. We write today to urge your office to defend current Environmental Protection Agency (EPA) regulations that support this successful state-based BMP approach.
Pursuant to EPA regulations under the Clean Water Act (CWA) defining most forest management activities as nonpoint sources (40 C.F.R. 122.27) and excluding these activities from National Pollutant Discharge Elimination System (NPDES) permitting (40 C.F.R. 122.3), states have invested substantial time and resources in developing and implementing quality BMP programs. Starting from a core set of principles, BMPs are shaped by a diverse group of stakeholders and tailored to address local landscape conditions. The inherent flexibility of this approach also facilitates rapid and continuous evolution as the latest scientific research and information becomes available. Through years of refinement and support, BMP programs have become highly effective at minimizing and preventing nonpoint source pollution from forestry activities.
We understand that a mismanaged road associated with forestry activities can cause water quality issues, and we recognize the overall effectiveness of NPDES permits in addressing point source pollution; however, we support EPA's position that NPDES permits are not the most effective mechanism to control these dispersed sources nationally. Based on the record of BMP programs, we do not believe that NPDES permitting for forestry and logging activities will measurably improve water quality or overall forest health. In fact, imposing an additional layer of NPDES permitting could have profound impacts on state agencies and forest owners-adversely affecting forest health and forest-dependent jobs. This new unfunded mandate would stress already overburdened state environmental agencies and divert resources away from efforts to address more significant threats to human health and our environment. In addition, any new regulatory burdens will increase costs for forest owners and may lead to the conversion of forests to more economically-viable, non-forest uses (e.g., commercial or residential development), which can have far greater impacts on water quality and the environment. Our experience reveals that the costs and complications of new regulatory implementation, inspection, and enforcement could substantially outweigh water quality improvements that might be realized by requiring NPDES permits for runoff from forestry activities.
The May 2011 decision by the U.S. Court of Appeals for the Ninth Circuit in Northwest Environmental Defense Center v. Brown puts successful state-based BMP programs at risk. The court rejected EPA's long-standing regulations in concluding that runoff from forest roads constitutes a point source under the CWA and is therefore subject to NPDES permitting. With the allied support of 26 state attorneys general, the State of Oregon along with the forest products industry defendants and intervenor groups filed petitions for a writ of certiorari with the U.S. Supreme Court seeking review of the Ninth Circuit decision. Now the Court has asked the Solicitor General for his views on whether this review is warranted. Because the Solicitor General's views will be an important factor in the Court's decision whether or not to grant certiorari, we ask you to explain to the Solicitor General the significant adverse impacts of the Ninth Circuit decision.
The state-based BMP approach has and continues to be the best option for addressing water quality impacts from forestry activities, and any changes should take place within this proven 35-year-old regulatory scheme. Moreover, states are free to develop state permitting programs for specific watersheds where they may deem appropriate. Therefore, we urge your offices to ask the Solicitor General to fully defend current EPA regulations by recommending Supreme Court review. We are ready and willing to offer our assistance to your efforts. Thank you for your consideration of this important issue.
Alexandra Dunn, Executive Director
Association of Clean Water Agencies
Gary Taylor, Legislative Director
Association of Fish and Wildlife Agencies
Stephen Haterius, Executive Director
National Association of State Departments of Agriculture
Jay Farrell, Executive Director
National Association of State Foresters
The Honorable Tom Vilsack, Secretary, United States Department of Agriculture
The Honorable Ken Salazar, Secretary, United States Department of Interior