TMDL Grassroots Action Alert - Oct. 18, 1999 - 4 pages

Proposed New EPA Water Rule
Comment Period Extended
Strong Industry Response Needed

To: AF&PA Member Company/Association Grassroots Contacts

From: Gordon Barnes, Grassroots Manager
           ph: 202-463-2792, fax: 202-463-2471, e-mail:

Comment Period Extended: AF&PA, in concert with member companies and allied associations, has helped convince Congress to extend the comment period for the Environmental Protection Agency’s proposed new rules on the Total Maximum Daily Load (TMDL) program under the Clean Water Act. Originally, EPA had sought a limited comment period, which would have expired on October 22, 1999; Congressional intervention has extended that period to January 20, 2000.

What’s at Stake: EPA’s proposed rule will greatly affect both forest management and mill operations, adding increased red tape, expense and litigation for all sectors of the industry -- from small landowners to large companies. Forest landowners will likely be subject to permit requirements, EPA consultation and significant administrative delays before conducting practically all silvicultural activities. Expansion of mill operations (or construction of new mills) will also face increased costs and regulatory hurdles.

Your Help Needed: We need to send a "loud and clear" message to EPA that this rule has been hastily designed and needs to be significantly re-thought. We are developing comprehensive comments and other materials for AF&PA member companies and associations to send to EPA, and will distribute these, along with regular updates and suggestions on how to amplify our efforts, in the coming weeks.

Write Your Senators and Representatives: A key first step is to raise the awareness of legislators on this issue, and encourage them to share concerns and ask tough questions of EPA about this process. Please use the attached letter as a guideline, modifying it as it applies to your company or association, to send to your congressional representatives, as well as governors, state legislators and state/local economic development officials. The House Agriculture Committee is holding hearings on the issue on October 28, so a quick response to your legislators is especially important.

For More Information: For forestry-related questions, please contact Mitch Dubensky, Director, Forest Environment, at 202/463-2434 ( ); for manufacturing questions, contact Jerry Schwartz, Director, Water Quality Programs, at 202/463-2581 ( ) To receive a copy of the attached letter by e-mail, or for additional help contacting your legislators, contact Gordon Barnes (#’s at top). Please fax or e-mail Gordon copies of any letters you generate to assist us in coordinating our lobbying efforts.

Prepared by The American Forest and Paper Association 1111 19th St., N.W., #800, Washington, D.C. 20036


[Sample letter to state officials and members of Congress]  U. S. Senators    U. S. House of Representatives

Dear _________

I am writing to ask your help in dealing with extensive new federal water regulations that will significantly impact the forest products industry and landowners large and small. These regulations, proposed by the Environmental Protection Agency, would dramatically expand the "total maximum daily load" program under section 303(d) of the Clean Water Act.

Originally, the EPA sought to limit public comment on the rule by proposing a brief, 60-day comment period. Since that time, Congress has extended the comment period on the proposed rule for 90 days until January 20, 2000. While Congress’ action to extend the comment period is a positive step, I remain extremely concerned about the legitimacy of the EPA’s actions and its consequences to the continued practice of sustainable forest management in this country, as well as the viability of the industry’s mills.

As I consider the proposed rulemaking and attempt to decipher an extremely complex issue, I am struck by the heavy-handed federal approach being imposed upon my state and me as a businessperson/private property owner. I am also convinced that EPA has not adequately examined the potential costs of this rule for businesses, communities, and property owners large and small.

Some important stakeholders in the issue agree: recent statements by the National Association of State Foresters, the Association of State and Interstate Water Pollution Control Administrators, the agriculture, farming and ranching communities, state departments of agriculture, forest landowner associations and others in the forest community all concur that the EPA proposed rules are contrary to federal law and would impose significant costs on states.

Here are just a few examples of what authority EPA would have under the proposed regulations.

The proposed regulations would eliminate the designation of forestry activities as a "non-point source," reversing a 27-year determination under the Clean Water Act. This new interpretation would give EPA indirect oversight of activities conducted by millions of private forest landowners throughout the country. In impaired watersheds, landowners would undoubtedly be required to obtain point source permits in order to conduct forest management activities.

The proposed regulations would also open the door for more extensive federal regulation in the future. Under the Clean Water Act, a landowner would be subject to fines of up to $27,500 per day as well as to citizen suits for alleged permit violations.

EPA would require that states list waters that are merely "threatened" by impairment, even though the statute only provides for listing waters that are not meeting water quality standards. This raises the specter that EPA will regulate forest management operations on the theory that the nearby waterbody might not meet water quality standards some time in the future.

The proposed regulations would require states to submit costly implementation plans for every TMDL. This is just another example of EPA’s attempts to expand its authority over already-effective state programs.

EPA misleadingly states in their economic analysis that landowners would only be required to submit a Notice of Intent under a general permit to conduct forestry operations. In fact, under existing stormwater regulations the Agency has a multi-tier approach that would require individual permits for activities conducted in waterbodies listed as impaired under section 303(d).

Similarly, EPA’s TMDL proposal imposes so many restrictions on general permits that they will not be available, again inevitably requiring individual permits. By underestimating the costs of obtaining a federal permit (let alone the challenges of getting a permit due to administrative delays and the fact that permits will almost certainly be challenged through the citizen suit provisions of the federal statute), EPA has dramatically understated the costs to landowners in this proposal.

EPA’s heavy-handed approach is also evident with regards to the industry’s mills. The proposed rule will inhibit economic growth by imposing restrictions that could prevent construction or expansion of mills. In developing their economic analysis of the rule, EPA claims that the new rule will only cause an "incremental" cost for manufacturing operations seeking to renew permits. This analysis, however, does not take into account the effects of combining these proposed rules with other recent rulemaking on "mixing zones," which could dramatically increase costs for manufacturers.

Finally, EPA gives itself the authority to takeover and issue as federal permits certain water permits currently being issued by the states, thus subjecting those permits to federal wildlife agencies consultation under the Endangered Species Act.

Before going final with this federal regulation, I believe there are certain questions that the EPA must answer and then seek further review and comment. I hope you will join me in asking EPA to clarify these important issues:

What specific watershed basins and counties does EPA claim are impaired due to forest management operations? EPA claims to have this information in their economic analysis. The names and exact locations of these stream segments and basins should be provided to federal, state and county officials.

On what basis does EPA assume that landowners will never be required to obtain individual permits? EPA should conduct an assessment of the costs of obtaining individual permits for forest management operations, not just general permits, and utilize cost estimates for obtaining NPDES permitting for industrial manufacturing discharges as the prototype.

What are the costs associated with the new policy on mixing zone bans for impaired water bodies? Shouldn’t these costs be quantified and considered before completing this rulemaking?

How does EPA justify subjecting forestry operations to NPDES permits under the stormwater provisions of the Clean Water Act? In the 1987 Clean Water Act Amendments, Congress specifically requested the Agency to submit a study by 1989 on classes of stormwater discharges for which permits are not required. This study does not mention additional silvicultural activities for consideration under the stormwater programs. In fact, the same silvicultural activities EPA now claims are subject to the NPDES permitting program were specifically and categorically exempted from the November 1990 stormwater regulations by being declared nonpoint sources.

The President’s own 1998 Clean Water Action Plan stated that the Agency would work cooperatively with the U.S. Forest Service to first develop a "pilot permit program" for forest roads on federal lands only. Instead, the Agency published proposed regulations requiring permits for practically all forest management operations on both public and private lands. Why the sudden reversal?

Finally, it is also my understanding that the published scientific articles EPA cites in the August 23rd preamble for justifying the federal regulation of forestry activities has been denounced by the lead authors of these articles as being a misrepresentation of the facts. Shouldn’t EPA do a better job interpreting and presenting its scientific underpinnings?

I hope you will communicate your concerns on these issues and request a direct response from Carol Browner, Administrator, and Charles Fox, Assistant Administrator for Water, U.S. Environmental Protection Agency, 401 M St., SW Washington D.C. 20460.

I appreciate your consideration, and look forward to working with you to make sure that EPA’s rulemaking meets the standards of sound science, open dialogue and economic fairness that the public expects. Thank you for your effort and I am willing to discuss these issues at your convenience.