Federal roles in forest watershed management

A recent decision of the US Court of Appeals for the Ninth Circuit (NEDC v. Brown;) held that logging roads are subject to federal Clean Water Act permitting requirements of the National Pollutant Discharge Elimination System (NPDES). In particular, the Court found that road ditches and other “discrete conveyances” that discharge stormwater to streams are “point sources” requiring NPDES permits. This decision conflicts with EPA regulations under which forest roads are nonpoint sources not subject to NPDES permitting requirements.

Following are brief overviews of other recent developments with important implications for federal agency roles in forest watershed management and regulation.

  • In response to a January 2009 decision of the US Court of Appeals for the Sixth Circuit (National Cotton Council v. EPA; www.ca6.uscourts.gov/opinions.pdf/09a0004p-06.pdf), EPA must regulate certain pesticide applications as point sources subject to NPDES permit requirements (even though EPA already regulates pesticide applications under the Federal Insecticide, Fungicide and Rodenticide Act). EPA has released and accepted comments on a draft General Permit covering four categories of pesticide applications. It is expected that EPA will issue a final General Permit late in 2010 and require use of the General Permit starting in April 2011 in states where EPA administers the NPDES program. If implemented as proposed, the General Permit would increase the cost,
    complexity and legal risks associated with use of pesticides “in, over and near” waters of the US. States that have authority to administer their own NPDES programs must develop and implement pesticide permits by April 2011.
  • In Oregon, EPA and NOAA are withholding approval of the state’s Coastal Nonpoint Pollution Control Program. As conditions of approval (and possibly future Coastal Zone federal funding), the federal agencies are demanding that the Oregon Department of Environmental Quality (DEQ) make several changes to the state’s nonpoint source control programs. These changes include development of a new “prescriptive TMDL process” through which DEQ could require implementation of forestry BMPs more stringent than those already developed under Oregon’s Forest Practices Act in situations where normal BMPs are considered insufficient to achieve water quality standards.
  • States are under increasing pressure to develop numeric water quality criteria for nutrients, temperature, turbidity and other pollutants. In an increasing number of circumstances, numeric criteria are unachievable even in least-impaired forested watersheds. Promulgation of unachievable criteria has several consequences, including (a) listing of an increasing number of streams as “impaired;” (b) development of TMDLs for streams listed as impaired; and (c) increasing pressure on states in context of TMDLs to revise forestry BMPs so as to minimize forestry’s contributions to water quality impairment. 
 

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