water quality evaluation, argued by the USFS as the best management practice, failed to evaluate nonpoint source pollution and water quality UPSTREAM from the trails at Tellico. The result was a complete closure of Tellico with no evaluation whether water quality would, or has, improved downstream to a level necessary to improve nonpoint source pollution. At the same time elsewhere in the US, anti-access organizations had begun submitting comments on various environmental analyses by the agency that any road stream crossings without a bridge would create nonpoint source pollution by OHVs. The court held in one earlier case that OHV tire spin was not a source of “dredge or fill” as prohibited without permit by the CWA. As a result of that case, the anti-access organizations shifted their argument slightly to move from the “dredge and fill” permit question to the question of nonpoint source pollution. Another concern is whether creating a national BMP will accomplish anything on the ground. The way the CWA works, States are responsible for creating nonpoint source pollution management plans. The USFS is involved in only one of two ways – as the designated management agency (DMA) responsible for ensuring compliance with the State’s water quality implement plan OR via the CWA which states that federal agencies are responsible for complying with State nonpoint source pollution management plans for its units within the plan area. This section of the CWA mandates that federal agencies must comply with State nonpoint source pollution management plans. Note the CWA does not make State’s subservient to the federal agencies. Therefore, where there are national forests, they are responsible for complying with the State nonpoint source pollution management plan. Those plans already have listed BMPs created by the states. So what will the USFS land manger do
if its National BMP is in conflict or different from the State BMP – utilize its own National BMP or utilize the State’s nonpoint source pollution management plan BMPs. By definition, the State’s BMP, in order to be a BMP, will be periodically evaluated to make sure they are, in fact, the BEST management practice. If better processes exist or have been created since the implementation of the State’s BMP, the State will revise its BMPs to reflect the better processes. This begs the question why the USFS needs a National BMP across units where various terrains, soil types, sedimentation issues, and the like, exist. Valuable resources are being expended by the agency in time and money to develop national BMPs. I’m sure USFS managers already ensure its compliance with State nonpoint source pollution management plans, so for every environmental analyses undertaken by the USFS it will have to compare the State NPS plan BMPs with its own National BMPs. First, this adds a layer of analysis not currently required. The agency only needs to know the State BMP, not compare it with its own BMPs. Second, in cases where the BMPs are not identical the USFS creates an atmosphere of increased litigation. If it follows its own National BMP and not the State BMP litigation will ensue and if it follows the State BMPs and not its own National BMP litigation will ensue, particularly by those organizations opposed to any kind of use on our national forests. It seems apparent the agency is determined to see to the end its self-fulfilling prophecy from 2012 when it required itself to amend the handbook and manual to implement this national system of BMPs for water quality. There is no question the agency is going to finalize these handbook and manual changes, despite our view that there is questionable legal authority to use them since the CWA is clear that nonpoint source pollution is regulated by the States!
Published on Sep 21, 2014