CLEAN WATER ACT AND FORESTRY

Since the 1970s, EPA regulations have interpreted the CWA to define forest management activities as “nonpoint sources” that do not require federal permits. With recent federal court decisions and EPA activity eroding this balance, Weyerhaeuser and the forest products industry are seeking legislation to restore our forest activities' historical treatment.

Silviculture Regulatory Consistency Act (H.R. 2541; S. 1369)

• The bills codifies EPA's decades-old silviculture rule by amending the CWA to exempt discharges from listed forest management activities, including forest roads, from permits under the CWA.
• The bill reflects the EPA regulation and intent by:
  • Continuing to utilize state-enforced Best Management Practices (BMPs), including those applicable to road, to be the mechanism that regulates most forest management activities under the CWA.
  • Amending the CWA to specific that activities listed in the EPA silviculture rule do not require a permit under section 402 of the CWA.
  • Ensuring that forest road runoff managed through control measures such as ditches and culverts do not require a permit.
  • Clarifying that the use of forest roads does not require a permit.

Overview

• In May 2011, the U.S. Court of Appeals in the Ninth Circuit issues a final ruling that forest roads are 'point sources' requiring a special industrial discharge permit under the Clean Water Act. This rule upends 35 years of highly effective, common sense regulation of ofrestry and forest roads as 'nonpoint sources' by EPA.
• The Supreme Court will soon consider whether it will take the case. It is currently awaiting views from the U.S. Solicitor General before it will decide whether or not to move forward.
• Weyerhaeuser's working forests are a vital part of our nation's natural resource infrastructure, providing jobs, forest products, wildlife habitat, recreation, clean water and more.
• We are part of the private U.S. forest industry that supports 2.9 million U.S. jobs and $100 billion in paychecks.

What's Being Done to Preserve Forest Activities' 35-Year Treatment as Nonpoint Sources

• In December, Congress passed a 10-month stay of the Ninth Circuit decision. This prevents the needs for permits as the Supreme Court evaluates whether it will consider the case.
• The U.S. Supreme Court will soon make a decision on whether to take the case. As a part of influencing the U.S. Solicitor General's views, a number of stakeholders have submitted a variety of letters in support of Supreme Court consideration, including 77 Members of Congress, 29 state attorney generals and the national associations that represent state agencies that oversee water quality, fish, wildlife, agriculture and forestry rules.
• The Silviculture Regulatory Consistency Act has also been introduced. This would permanently reverse the Ninth Circuit decision and codify EPA's 35-year regulation. Currently, 29 U.S. Senators and 60 U.S. Representatives are cosponsors of the bill. Weyerhaeuser is working with the bills' champions to seek passage of the legislation.

What Else to Know about Forestry and the Clean Water Act

Private forests support jobs, open space, clean air and water, and other benefits

• Ten million private forest owners manage 427 million acres, representing 57 percent of the forested land in the U.S.
• These working forests are vital to our nation's natural resource infrastructure, providing forest products, open space, wildlife habitat, clean air and water, recreation and more.

The role of Best Management Practices (BMPs) in controlling nonpoint sources

• The U.S. is a world leader in sustainable forestry. Individual states administer the world's most effective framework of forestry laws, regulations and agreements in a way that is carefully tailored to local conditions and needs.
• State administered BMPs under the CWA protect water quality during forestry operations, including harvesting, planting and road use. They are drafted with EPA funding, guidance and approval.

Risks and costs of increased regulations of forest activities under the CWA

• Subjecting forest landowners to point source CWA permits, like those typically issues to industrial facilities, will result in new requirements that compel landowners to conduct monitoring and surveillance, reporting, recordkeeping, and other tasks that create significant delays, costs and reporting burdens.
• Forest landowners, private and public, also risk becoming subject to new litigation.
• Forest owners depend on an economic return from their forests to afford sound, long-term forest management investments. Unnecessary, new regulatory costs reduce economic returns and investments in the land, risking the loss of forests to non-forest uses.
  • Total costs in the Northwest could range from $654 million per year to $883 million per year.
  • Total costs in the Northeast and Lake States could range from $100 million to over $1 billion.
  • Total costs in the South could range from $420 million per year to $4 billion per year.
     

Other Clean Water Act Policies - Pesticides

• Forest management is a long-term investment which requires the infrequent use of pesticides.
• These tools are essential in assisting recently planted trees to survive in the wild, allowing for the rapid regeneration of a forest.
• The use of pesticides and herbicides is regulated under a federal law known as FIFRA (Federal Insecticide, Fungicide and Rodenticide Act).
• Since pesticides undergo lengthy testing under FIFRA, such as tests to ensure water quality and aquatic species preservation, EPA had has considered CWA permits to be unnecessary and duplicative.
• After 40 years of effective implementation, federal courts have ruled that application of these products also require a permit under the Clean Water Act even when application near or into water has been authorized under FIFRA.
•  In response, EPA is finalizing a general permit for pesticide application near water. This permit is expected to be issued before a court deadline of April 9.
• EPA’s own analysis suggests this program will result the largest expansion in the CWA’s history, covering approximately 5.6 million covered pesticides applications per year by 365,000 applicators, including forest owners.
• To voice the increased burdens and costs to obtaining CWA permits for pesticide applications, Weyerhaeuser is working with NAFO, agriculture and others in support of HR 872, Reducing Regulatory Burdens Act of 2011 . The bill has 105 cosponsors, has passed the U.S. House and Senate Agriculture Committee. It is awaiting Senate floor action.