The Environmental Protection Agency (EPA) has proposed a rule under the Total Maximum Daily Load (TMDL) program that would give the agency the authority, at their discretion, to designate forestry activities as point source discharges of pollution. This could include road construction, harvesting, site prep, prescribed burning, reforestation and insect and disease control. Affected forest landowners would be required to obtain a federal National Pollutant Discharge Elimination System (NPDES) permit before conducting virtually any forestry activity on their property. Such a permit would be expensive, time consuming and would be open to public comment and third party legal challenge. Some have estimated that such permits would cost up to $10,000 and take over 6 months to obtain. According to economic analyses, this rule could cost landowners over $1 billion a year!

But, thumbing its nose at Congress, business, farmers, environmental groups, state regulators, mayors and governors, who all opposed EPA’s proposal, EPA and the Clinton administration published on July 11 a final TMDL rule. The action was taken only two days before the appropriations bill containing the specific congressional prohibition on implementing the rule would have taken effect. EPA did throw a bone to Congress by declaring this was a "major rule" and thus subject to congressional review. Also, the rule will not go into effect until Oct. 1, 2001, the same delay that was contained in the appropriations bill.

The results from 12 congressional hearings, 20 public forums around the country and 35,000 comments on the rule, convinced elected officials that the proposed rules were scientifically, technically and fiscally flawed. Reports from both the Congressional Research Service and the General Accounting Office concluded that the EPA’s cost calculations were underestimated and their legal authority was suspect. In addition, the majority of states, governors and mayors opposed the regulations as a top-down, one-size-fits-all approach that dictated federal control.

EPA’s final rule is significantly different from the rule it originally proposed. Perhaps the most significant change is the elimination of any new requirements or rules on forestry operations. The final rule contains no new permit requirements for forestry, and the agency withdrew its proposed provisions for expanding its authority to permit aquaculture and animal feeding operations. The agency also dropped the proposed public petition process for review of lists or TMDL implementation, eliminated requirements for states to list "threatened" waters and dropped requirements for "pollution offsets" before new discharges to impaired waters prior to establishment of a TMDL.

"It’s unfortunate but not surprising that the Clinton-Gore administration has again chosen to ignore the will of the people and Congress," said NCFA Executive Vice President Bob Slocum. "While we are certainly pleased that the final rule dropped any new permitting requirements on forestry, the rule is still based on questionable science and will have a significant impact on the states. This is another example, along with the efforts to turn our national forests into national parks, of a power and land grab by an administration in its final days."

New legislation has been introduced (H. 4922) to mandate expanded public review of the rule, improved data and science and cost-benefit analysis. Congress is considering the bill now. Representative Eva Clayton is an original co-sponsor of this bill.

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