FORESTRY ISSUES, ALERTS AND UPDATES
- Job Crushing Boiler MACT Rules to Move Forward
- Logging Roads: Temporary Provision will Continue Forestry’s Non-Point Source Status Under the CWA
- Congress Grants Nine-Month Stay in H-2B Wage Rule
- Governor’s Proposal: FY2013-14 Major Budget Issues for Secretariat of Agriculture and Forestry
- Virginia Government Restructuring Initiative Affects Forestry Boards
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Job Crushing Boiler MACT Rules to Move Forward
Last spring, the Environmental Protection Agency (EPA) wanted to delay some of their rules on boilers at businesses, schools, hospitals, hotels, and other facilities because even they thought they might have gone too far. Despite requests from the EPA to delay the Boiler Maximum Achievable Control Technology (MACT) rules, a federal judge recently ruled that the delay was not allowed, giving boiler owners less time to comply and less certainty than ever. With the compliance clock running, no final rule has yet been issued. This court ruling reiterates the obvious need for a legislative fix to the Boiler MACT rules before American jobs are needlessly put at risk.
The House passed Rep. Griffith's bill, the EPA Regulatory Relief Act (H.R. 2250), in October, with strong bipartisan support. A nearly identical Senate bill (S. 1392) has the support of 12 Democrats and 29 Republicans. Yet, it sits idle. As the Senate continues to delay, it's worth noting a recent statement by the National Association of Manufacturers that "... it is already 20 percent more expensive to manufacture in the U.S. compared to our trade partners, and regulations such as Boiler MACT continue to set us back." The Boiler MACT rules could put more than 200,000 American jobs at risk.
Logging Roads Update:
Temporary Provision will Continue Forestry's Non-Point Source Status Under the CWA
Congress completed work on an expansive Omnibus Appropriations Bill which will fund nine federal agencies for the 2012 fiscal year. Included in the bill is a provision declaring that storm water runoff from forest roads and other silviculture activities identified in EPA's regulations shall not be subject to NPDES permits for the duration of the fiscal year.
This is a very significant advancement of our effort to permanently overturn the Ninth Circuit's ruling in NEDC v. Brown defining forest roads as point sources under the Clean Water Act. This ruling overturned EPA's 1976 regulation that treats forestry activities as nonpoint sources under the Clean Water Act and declared for the first time that forest roads used for timber harvest require industrial permits typically obtained by wastewater treatment facilities, factories and other confined industrial sites. Studies show that that Forest Roads affect less than two percent of the nation's streams and rivers, and according the U.S. Forest Service (USFS), the court's decision would require the USFS alone 10 years to obtain the 400,000 permits it would need for public lands – at the expense of the taxpayer. Private landowners would face the same magnitude of regulations.
The year-long provision in the Omnibus Bill was part of the 2012 federal appropriations bill passed by the U.S. House of Representatives in December, and then approved by the U.S. Senate and signed by the President.
The good news from Congress comes on the heels of the Supreme Court's order seeking the views of the Solicitor General on whether the Court should the review the NEDC v. Brown case. We are confident that Congress' appropriations language sends a helpful message to the Supreme Court in favor of review.
These positive developments position the forestry community well going into 2012. Efforts will continue in the new year both to secure a supportive brief from the Solicitor General and to pursue a permanent codification of EPA's regulations.
David P. Tenny, President and CEO of the National Alliance of Forest Owners (NAFO) released the following statement in response to the congressional action:
"We thank Congress for taking action to prevent the Ninth Circuit Court of Appeals' misinterpretation of the Clean Water Act from taking effect. The 79 bipartisan House and Senate sponsors and cosponsors of the Silviculture Regulatory Consistency Act have joined forest owners in strong support of EPA's historical treatment of forestry and forest roads as non-point sources. Because of their help, the provision in the multi-bill funding measure moves us an important step closer to a permanent repudiation of the Ninth Circuit's overreach. Today's outcome is good for our forests, for clean water and for well-paying rural jobs throughout the country.
"This legislation also supports the Supreme Court's decision to seek the federal government's views on whether to review the Ninth Circuit's decision. Today's legislation sends a strong signal that Congress will support the administration in defending EPA's regulations in court. We remain hopeful that the Supreme Court will ultimately reverse the Ninth Circuit and restore the regulations that have been a Clean Water Act success story for more than 35 years."
Congress Grants Nine-Month Stay in H-2B Wage Rule
The December 17 passage of the Omnibus Appropriations bill containing H-2B Wage Rule killing language prevents the U.S. Department of Labor from implementing an onerous "Wage Rule" that would have established non-market wage guidelines for migrant guestworkers brought to the United States under the H-2B Visa Program. Because of a provision VFA, the Forest Resources Association and other members of the H-2B Workforce Coalition worked with Congress to include, DOL may not enforce, or implement, its new Wage Rule at least until October 1, 2012.
While the wage-setting formula the DOL is trying to implement would affect each state differently, FRA's Forestry Contractor Task Group estimates that, if implemented, the Rule would increase average tree planting costs by approximately $30 per acre, discouraging reforestation and threatening the U.S.'s long-term wood supply. Based on 2.5 million acres of annual U.S. reforestation, Congress has prevented the imposition of $75.1 million in new costs on the country's wood supply system in this planting season.
"DOL's determination to place migrant workers' compensation outside of market forces came close to creating a disaster for reforestation contractors," commented FRA Forestry Contractor Task Group Chairman Mike Kelly. "The result would have been to depress reforestation by adding new costs to the expenses of forestland ownership, ultimately leading to the conversion of forests to other uses, as well as to additional mill closures."
FRA President Richard Lewis stressed that Congress's action is not a permanent solution and that the Coalition's campaign would extend into 2012: "Our goal is long-term, for Congress to ensure that the H-2B program's wage formula reflects actual labor market conditions into the future."
FRA and its allies in other sectors that use H-2B workers--landscaping, seafood-processing, and hospitality industries, among others--are also suing DOL to overturn the Wage Rule. The Federal Court for the Western District of Louisiana recently transferred that suit, The Louisiana Forestry Association v. Solis, to the Eastern District Court of Pennsylvania, where a new hearing will be scheduled. VFA is supporting this effort.
Governor's Proposals:
FY2013-14 Major Budget Issues for the Secretariat of Agriculture and Forestry
Below is a summary of the major budget proposals involving the Agriculture and Forestry Secretariat to be included in the Governor's introduced budget. This was shared with key legislators on the money committees prior to the official release of the Governor's proposed budget on Dec. 19. Senate Finance and House Appropriations committee staff also received a copy of this document.
The proposals included here are major new initiatives, reductions or eliminations of existing programs and positions, or proposals for fee increases to supplement funding for existing programs.
The Governor's administration believes this to be a commitment to make agriculture and forestry a full component of the Governor's overall economic development and jobs creation initiatives. Although cuts are proposed, the administration considers them fairly targeted and limited in nature and, for the most part, were recommended by the agencies because they would provide the least impact to core services and overall mission.
Department of Forestry
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+ $250,000 GF FY2013 – Provides additional funding for the agency to replace or purchase emergency response equipment through the state's Master Equipment Lease Purchase. Depending on the term of the financing, the total investment over this period will either be $1.3 million over five years or $2.5 million over 10 years.
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+ $240,000 [$120,000 NGF FY2013; $120,000 GF FY2014] – Provides funding to replace the agency existing accounts receivable fiscal system. One of the primary functions of the system is to administer the Reforestation of Timberlands (RT) Program, a program partially funded through a severance tax paid on pine timber by processing companies. The existing 20-year old fiscal system is out of compliance with the Commonwealth's standards and is difficult to support and operate, making the system vulnerable to failure and security breach. The agency will use $120,000 NGF from the RT fund in FY 2013 for the upgrade. A general fund appropriation is provided in FY2014 to complete the upgrade.
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+ $434,215 [$75,000 NGF FY2013; $359,215 NGF FY2014] – DOF is authorized to sell three surplus buildings and use the proceeds to fund an initiative to develop a mobile information technology environment for employees. Over the long-term, the implementation of the new mobile technology will increase efficiency and reduce costs.
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($314,506) [($170,347) GF FY2013; ($314,506) GF FY2014] – Eliminates four positions that become vacant through turnover of personnel, or the ability of the agency to supplant general fund dollars with nongeneral fund dollars over the biennium. Two positions are slated for elimination in FY2013 ($170,347). The remaining two positions will be eliminated in FY2014.
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($47,600) GF FY2014 – Eliminates one filled position in administration.
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($40,000) [($20,000) GF FY2013; ($20,000) GF FY2014] – Eliminates the use of general fund dollars to produce the annual calendar.
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($20,000) GF [FY2014] – Discontinues a contractual agreement with Virginia Tech to support research projects under the direction of their hydrologist on staff.
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($13,701) GF FY2013 – Reduces expenditures across the agency.
Virginia Government Restructuring Initiative Affects Forestry Boards
Gov. Bob McDonnell announced the reform initiatives contained in his Government Reorganization Plan November 29. The plan includes proposals to eliminate 19 boards and commissions, and further merge 23 boards and commissions to form 11 boards and commissions. Other proposals include eliminating two state agencies; merging seven state agencies into others; moving four offices and initiatives, and de-regulating three professions.
In the proposed plan, the Reforestation of Timberlands Board would be merged into the Board of Forestry. VFA Executive Director Paul Howe has been in communicatoin with the McDonnell administration about this proposal and the VFA Board is working on a position.
The proposals are a result of the Governor's Commission on Government Reform and Restructuring. The Government Reorganization Plan will be considered as a resolution in the 2012 session of the General Assembly. Initial estimates by the Department of Planning and Budget find that the submitted reforms will save at least $2 million per year.
Speaking about his Government Reorganization Plan, Governor McDonnell said, "This coming General Assembly session we intend to advance even bolder reforms to reduce waste and ensure that we are providing the best services to our citizens in the most fiscally responsible manner."
