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5.5 Regulatory Versus Nonregulatory Approaches

Various means are available for comparing regulatory and nonregulatory water quality management approaches. Advantages and disadvantages could be listed and discussed for such factors as cost, operational flexibility, and overall program effectiveness. Such a discussion, while perhaps interesting, would be necessarily complex and tedious and not likely to result in definitive conclusions. Another approach is to discuss means (including enforcement actions) that are employed within States to ensure BMP implementation, when noncompliance is either discovered during monitoring or brought to a State's attention via citizen complaint.

Traditionally, water-quality management agencies have depended on regulatory approaches (permits and permit conditions) to control discharges into State waters. Compliance has been monitored in different ways, ranging from regular site inspections to self-monitoring and reporting. These approaches were developed for and have long been employed to control point-source discharges.

Silviculture is a nonpoint source of pollution. The CWA stipulated that nonpoint-source pollution control is to be accomplished through BMPs identified by each State, but BMP implementation is not mandatory under the CWA. Best Management Practices are administered by State forestry agencies, whose regulatory authorities are generally limited to fire control. This combination of factors explains why a nonregulatory approach to BMP implementation still persistent today in nearly all States.

The common goal of both approaches is the protection of water quality. States utilize preventive practices and follow-up actions when degradation is noted or complaints are received. While effectiveness of State regulatory programs is not discussed in this Assessment, formal follow-up procedures employed by States for forestry BMPs are described here. This description illuminates potential consequences, or disincentives, of noncompliance.

Following are summaries of current State procedures in place to respond to noncompliance. They are based on information received from State forestry agencies.

ALABAMA: Alabama has a nonregulatory BMP program (Boyce 2000, personal communication). Through cooperative agreement, the Alabama Division of Environment refers suspected water-quality complaints due to forestry to the Forestry Commission. A forester visits the area to determine if a forestry-related water-quality problem exists, or could develop, due to lack of or inadequately implemented forestry BMPs. If that situation exists, the responsible party is contacted and provided recommendations for corrective action. A follow-up visit is made, and if corrective action is not taken, the problem is referred back to the Division of Environment for appropriate enforcement. The number of BMP complaints acted on by the Forestry Commission in 1998, 1999, and 2000 were 17, 17, and 42 respectively.

ARKANSAS: Arkansas has a nonregulatory BMP program(Eagle 2000, personal communication). The Arkansas Forestry Commission has the lead role for supervising the silvicultural portion of the nonpoint source water pollution control program. The Arkansas Division of Environmental Quality (DEQ) has regulatory water pollution control authority in Arkansas., and a formal memorandum of understanding exists between the Forestry Commission and DEQ. Complaints or violations of water quality suspected to be due to forestry are first referred to the Forestry Commission, which works with the landowner and operator to rectify any identified cause(s) of pollution. If the landowner or operator fails to correct the cause, the incident is referred back to the Division of Environmental Quality, which has authority to institute civil action and assess fines of up to $10,000/day. The Forestry Commission estimates acting on about four such complaints or cases per year from 1998 - 2000.

FLORIDA: Florida has a nonregulatory BMP program, but State permits are required for forest roads, stream and wetland crossings, ditching and borrow pits (Vowell 2000). As part of its BMP monitoring program, the Division assesses risk from noncompliance with specific BMPs. When it is determined that a BMP has not been implemented properly, an assessment of "significant risk" is made. Significant risk exists when a situation presents imminent and substantial danger to designated beneficial uses of State waters. In these cases, the Division recommends corrective measures to be taken by the landowner. Although no formal memorandum of understanding exists between the Division of Forestry and the Department of Environmental Protection, if recommended action is not taken, the landowner is referred to the appropriate regulatory authority. This has occurred an estimated six times from 1998 - 2000.

GEORGIA: Georgia has a nonregulatory forestry BMP program. Incidents of suspected forestry-related water pollution are first referred to the Georgia Forestry Commission, which investigates the site (Green 2000, personal communication). If a water-quality problem is attributable to forest practices, corrective measures are recommended to the operator or landowner. If recommendations are implemented and the problem is corrected, no further action is taken. If the recommendations are not taken and the problem persists, incidents are referred to the Georgia Environmental Protection Division for enforcement action. This has occurred five times between 1998 and 2000.

Additionally, the Georgia Forestry Commission submits a regular report of water-quality violators to the forest industry members of the Sustainable Forestry Initiative (SFI), who individually can stop accepting wood from those producers at their mills. The SFI mills that receive wood from producers on that list contact those producers and tell them they are at risk of not having their wood accepted at their gates.

Likewise, the State Board of Registered Foresters in Georgia has adopted a system for imposing sanctions against registered professional foresters for BMP noncompliance (Green 2001). In cases of BMP noncompliance, registered professional foresters may face penalties including consent agreement, fines, license suspension, license probation, and public reprimand.

KENTUCKY: Kentucky instituted a new regulatory timber harvesting BMP program on July 15, 2000 (Lowe 2000, personal communication). Loggers are required to use appropriate BMPs, and a Kentucky Master Logger (a logger who has completed the logger-training program of the Kentucky Division of Forestry) must be on site and in charge of any commercial logging operation. The Division visits and inspects logging operations for compliance. Noncompliance results in a written warning to the logger describing what is out of compliance and what needs to be accomplished to bring the operation into compliance. If the written warning fails to bring corrective action, an informal conference is held with the logger. Failing correction, a notice of violation is issued, and, as a last step, a special order is issued. The special order provides for shutting down a portion of the operation until compliance is achieved. Where noncompliance is serious enough to pose a significant threat to water quality, an emergency order can be issued which will shut down the entire operation without going through the first three steps. If these steps for attaining BMP compliance fail, the Division of Forestry can initiate administrative hearings, fines, or court actions. Prior to this program, the Division of Forestry reports that they referred several silviculture-related water-quality cases to the Division of Water, but their exact number and resolution status are unknown.

LOUISIANA: Louisiana has a nonregulatory BMP program. Louisiana has no formal process in which suspected forestry-related water-pollution cases are handled separately from any other suspected nonpoint-source pollution problem (Feduccia 2000, personal communication). When the Louisiana Department of Agriculture and Forestry is called out on a site with suspected forestry water-quality violations, it may make suggestions for BMPs that may be missing or inadequate. No formal Departmental process exists for dealing with specific forestry operations suspected of causing water pollution, nor does any formal agreement for addressing such occurrences exist between the Department of Agriculture and Forestry and any other State agency.

MISSISSIPPI: Mississippi has a nonregulatory forestry BMP program (Sampson 2000, personal communication). In cases of BMP noncompliance, the Commission makes recommendations to correct the problems. No formal interagency agreement exists for referrals.

NORTH CAROLINA: North Carolina has a set of mandatory Forest Practice Guidelines (FPGs), which are performance standards specified for various forest management categories, but has voluntary forestry BMPs designed to ensure attainment of the FPGs (White 1992). The North Carolina legislature passed the Sediment Pollution Control Act, which requires a site plan for land-disturbing activities, and is enforceable by the Division of Land Resources. The Act initially exempted forestry, but in 1989 it was amended to exempt forestry only so long as forestry activities are conducted in accordance with FPGs.

In cases of citizen complaints or otherwise-reported incidents of Guideline noncompliance, a Division of Forest Resources representative visits the suspected sites and recommends remedial action with a timetable to the operator. If the responsible operator cannot be found, the recommendation is given to the landowner. If recommendations are not implemented and a water- quality problem(s) continues, the incident is referred to the Department of Land Resources, the Division of Water Quality, or the Division of Forest Resources law enforcement staff for action. Activity can be stopped and a fine of $1,000 levied, a sediment plan required within 30 days of disturbance, specific cleanup measures required, and a $500/day fine levied if cleanup is not accomplished. The site is monitored until cleanup is finished.

Since 1990, over 26,000 Guideline evaluations have been conducted, about 1,900 notices of noncompliance have been issued, and approximately 100 cases referred for enforcement to other State agencies (27 since 1998).Cases resolved without the need for punitive action have not been formally tracked.

OKLAHOMA: Oklahoma has a nonregulatory forestry BMP program (Atkinson 2000, personal communication). Suspected forestry-related water-quality violations are inspected by Forestry Services and any necessary corrective action is recommended. If the operator or landowner does not take the recommended action and a water-quality violation persists, the incident is referred to the Department of Environmental Quality for necessary enforcement action. There is no formal interagency agreement for referrals of this kind. In addition, some major forest industries in Oklahoma accept wood at their gates only from loggers who have completed Master Logger training, which includes a module on forestry BMPs.

SOUTH CAROLINA: South Carolina has a nonregulatory silviculture BMP program with regulatory backup provided by the South Carolina Department of Health and Environmental Control (DHEC). A formal memorandum of understanding between the South Carolina Forestry Commission (SCFC) and DHEC defines the role of each agency in preventing or correcting water quality impacts from forestry operations. The Department of Health and Environmental Control refers all forestry-related water-quality complaints to SCFC for investigation. The Forestry Commission recommends corrective actions to the landowner and forestry operator, where noted problems can be resolved. Sites on which SCFC recommendations are not implemented within 30 days are referred back to DHEC for enforcement action.

Additionally, SCFC has developed a Courtesy Exam Program, unique in the Southern States, as a proactive means to encourage proper BMP implementation (Jones 2000). In this program, active forestry operations are located through weekly aerial reconnaissance of major drainages, through voluntary prior notification by foresters, loggers or site-preparation contractors, through complaints from the public, through the DHEC, and through other sources. Permission is secured from landowners to visit individual sites, the operators are contacted, and BMP foresters inspect the sites for BMP compliance. Written recommendations based on the site visits and BMP manuals are provided to the landowners and contractors, and the BMP foresters make follow-up visits after project completion to see if BMPs were followed and if related water-quality problems occurred.

Monthly courtesy exam summaries are provided to DHEC and made available to others upon written request. Summaries include a list of operators who failed to implement BMPs and may have created unresolved water-quality problems. Individual forest products companies have used this information to take corrective actions that they deem necessary. Actions have included refusal of wood at the mill, mandatory state monitoring, and additional training requirements (Adams 2001). The courtesy exam program is credited for achieving high rates of BMP implementation in South Carolina. In 1999, for example, BMP compliance was 99 percent on sites that underwent a courtesy exam.

TENNESSEE: Tennessee has a nonregulatory BMP program (Arnold 2000, personal communication). In incidents of suspected water pollution due to forestry, investigators from the Department of Agriculture are called in to assess the sites and recommend any necessary corrective measures. If, after reasonable efforts by that Department, an operator or landowner fails to cooperate or comply with recommendations, the Department of Environment and Conservation may take appropriate enforcement action. During 1998-2000, 126 cases were referred by the Division of Forestry.

The Tennessee State Legislature passed House Bill 2846 in 2000, which gives stop-work authority to the Commissioner of Environment and Conservation. When water pollution occurs because an operator fails to use forestry BMPs, the Commissioner, after consultation with the Department of Agriculture, may issue a stop-work order, and shall at the same time notify the landowner that a stop-work order has been issued. The operator must then cease part of or all activities contributing to the pollution. The order will remain in effect until the operator implements the Forestry Division's recommended BMPs that eliminate and prevent further pollution from forestry activities at that site. Any operator who receives a stop-work order must, for the next 2 years, notify in writing the Commissioner of Agriculture and the Commissioner of Environment and Conservation at least 10 days prior to beginning any silvicultural activity. Information must include the names of the landowner and operator, the location of and acreage of proposed silvicultural activity, and the beginning and expected ending dates of silvicultural activities.

TEXAS: Texas has a nonregulatory BMP program (Carraway 2000, personal communication). There is no formal State interagency agreement by which BMP noncompliance is addressed. However, there is a State Coordinating Committee consisting of all regulatory agencies (Texas Natural Resources Conservation Council, U.S. Fish and Wildlife Service, U.S. Army Corps of Engineers, and U.S. Environmental Protection Agency) and the forestry community (Texas Forest Service, Texas Soil and Water Conservation Board, Texas Forestry Association, Texas Loggers Council, forestry consultants, Texas Parks and Wildlife Department, forest industry, and others). In cases of reported or discovered BMP noncompliance, or nonpoint-source water pollution from forestry operations, the Service provides advice for recommended BMPs and seeks cooperation of the logger and/or landowner. Texas has a "bad actor" provision in its water quality law that allows pursuit of a repeat offender, but it has rarely, if ever, been used with respect to silviculture. The Texas forest industries that subscribe to the Sustainable Forestry Initiative have taken it upon themselves to audit timber producers supplying their mills, and producers found in noncompliance with BMPs are counseled to improve BMP implementation. Those who do not comply with Texas recommended BMPs are not permitted to deliver wood at these mills. This arrangement is believed to be producing an improving trend in BMP implementation in Texas, but there are many small timber industry mills, that do not subscribe to the Sustainable Forestry Initiative.

VIRGINIA: Virginia has a nonregulatory BMP program, but it does have mandatory harvest notification no later than 3 working days after the initiation of harvest operations (Poirot 2000, personal communication). Further, the Silvicultural Water Quality Law, effective 07/01/1993, authorizes the Virginia Department of Forestry to require corrective measures for silvicultural operations causing, or with potential to cause, sedimentation of State waters. In cases where the Department enforces this law, the first step is issuance of a Notice of Required Action, which is an informal description of what needs to be done to correct the problem. If that fails to bring resolution, an informal conference is held with the operator. The next step could be issuance of a Special Order, which details proof of sediment pollution and contains step-by-step prescription of necessary corrective measures with schedule for work. If the operator fails to comply with the Special Order, a formal hearing is held to determine if the Special Order was violated. Finally, civil fines of up to $5,000 per day can be assessed. This authority also includes issuance of stop-work orders. Formal actions taken by the Department of Forestry in 1998, 1999 and 2000 total 199, 272, and 540, respectively. The increase in 2000 is attributed to addition of compliance monitoring staff.

Other forestry-specific State laws include the Chesapeake Bay Preservation Act and local land-use tax rules. These acts and rules exempt forestry from certain requirements, or exempt forest land from certain taxes, provided that BMPs are implemented and verified by the Department of Forests. Monitoring of BMPs for compliance with the Silvicultural Water Quality Law is done coincidentally on about 240 randomly selected tracts per year through quarterly administrative review in the six Department regions, and through the semiannual BMP implementation and effectiveness monitoring survey.

Analysis of this topic leads to several broad observations:

· The nonregulatory approach utilized in Southern States over the past 20 years to protect forest water resources is nontraditional, unique, and still evolving. Its dependence on practitioner education, direct landowner assistance, and systematic monitoring of program effectiveness has gained momentum and widespread acceptance in the forestry community.




· The silviculture BMPs recommended by Southern States are grounded in science or are based on scientific principles. While there are differences among States in specific individual BMPs applied on the ground (SMZ widths for instance), consistency among States is generally strong and continues to increase. Where tested, BMPs have proven effective at maintaining State water quality within applicable standards. Additional scientific validation of BMP design will serve to refine their application to fit site-specific conditions.




· Success of the nonregulatory approach requires continual education efforts targeted at the ever-changing groups and individuals who own and treat the South's forests.




· Documenting the effectiveness of these approaches and their efficacy in protecting water resources is complex, costly, and still evolving. Southern States vary widely in their methodologies and commitment of resources for BMP monitoring.