There are proposed rule changes relative to defining and designating Critical Habitat under the Endangered Species Act (ESA) and defining what represents the destruction or adverse modification of Critical Habitat.

Consultation with the Fish and Wildlife Service or the National Marine Fisheries Service, as defined under Section 7 of the ESA, is required for federal actions within Critical Habitat. Federal actions can involve projects on federal lands, or projects involving federal dollars. Consultations can result in the modification of a project before it is allowed to move forward.

Since many species are forest-dependent, project modifications that result from these rules can impact our ability to carry out our forest management responsibilities. Federal lands reside within larger landscapes that include federal, state and private ownership, as well as local communities. What happens on federal lands has an impact on these communities and other ownerships. For example, restricting forest thinning on federal land because of Critical Habitat concerns can increase fire risk and elevate the threat of catastrophic fire occurrence on both federal lands and adjoining properties.

We understand that the proposed changes are the result of court decisions which found that current rules do not accurately reflect the requirements written in law. Namely, that Critical Habitat must be designated not just for species protection, but also species recovery and that adverse impacts to Critical Habitat must be judged under this same standard. This would suggest that future designations will encompass much larger land areas and that modifications to proposed projects will be more frequent.

As part of the continued rapid implementation of the 2014 Farm Bill, Agriculture Secretary Tom Vilsack announced proposed new actions to include new forest products in the BioPreferred® program. The proposal also includes other traditional biobased products and other mature market products, which have been produced in innovative ways. USDA seeks public comment for 60 days on the proposed rules published in the Oct. 27 Federal Register.

The proposed action responds to new requirements in the 2014 Farm Bill for USDA to promote biobased products, including forest products, that apply an innovative approach to growing, harvesting, sourcing, procuring, processing, manufacturing or application of biobased products regardless of the date of entry into the marketplace. The proposed rules provide the framework for implementing the new requirements, and will replace previous regulatory provisions excluding mature market products. The action further revises the definition of "biobased product" to state that the term includes forest products that meet biobased content requirements, notwithstanding the market share the product holds, the age of the product, or whether the market for the product is new or emerging.

Water Docket
Environmental Protection Agency
Mail Code 2822 T
1200 Pennsylvania Ave., N.W.
Washington, DC 20460

Attention: Docket ID No. EPA-HQ-OW-2011-0880

Re: Comments on Proposed Definition of Waters of the United States (WOTUS) ("Proposal") (79 Fed. Reg. 22,188 (April 21, 2014))

To Whom It May Concern:

The undersigned forest products industry associations offer the following comments on the WOTUS Proposal published by the Environmental Protection Agency and the U.S. Army Corps of Engineers (together, the agencies). The agencies are soliciting comments on a Proposal that redefines WOTUS under all Clean Water Act (CWA) programs. The proposed regulations broaden the scope of CWA jurisdiction beyond constitutional and statutory limits established by Congress and recognized by the Supreme Court. In addition to raising serious legal issues, the Proposal fails to provide clarity or predictability and raises practical concerns with regard to how the rule will be implemented. The Proposal will result in duplicative and incongruent regulatory requirements that are inconsistent with the purpose and structure of the CWA and have not been adequately considered by the agencies. We request that the agencies withdraw the Proposal, consult with stakeholders, and work to revise the Proposal to resolve these important issues.