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Congress Returns to Work and the D.C. Political Vortex Swirls to New Levels

Within days of returning from its Spring Recess, one of the most speculated re-election bids in Washington became known when Speaker of the House Paul Ryan (R-WI) announced his retirement from Congress at the end of the year.  The immediate question is what the decision means for House leadership during the remaining months of the session. The Speaker’s retirement sets in motion a highly unusual and unpredictable succession process.  Majority Leader Kevin McCarthy (R-CA) and Majority Whip Steve Scalise (R-LA) each signaled interest in the top spot which, if they both square off in the coming months, would then trigger leadership races for other slots with as many as five senior leadership positions opening up.

Complicating the situation is the fact that any vote on leadership will fall to the incoming Congress that could be composed of a record number of Freshman Members.  The decision by the highest-ranking Republican to leave Congress has led to the possibility of another series of Republican retirements.  Within hours of the Speaker’s announcement, Representative Dennis Ross (R-FL) declared that he would not seek re-election, raising the number of Members of the Majority declining to run to a total of thirty-nine open seats.  This is the largest number in recent decades and buttresses the argument that which party controls the House in 2018 is anyone’s guess.

The Speaker’s decision to leave Congress at year’s end could also complicate smooth House operations as Members jockey for leverage over the next few months to secure support to become Speaker.  This could potentially create new divides in a conference that is balkanized by the numerous caucuses that can make consensus challenging.  Indeed, this was recently seen when the White House floated a decision to seek $30 billion in domestic spending cuts from the recently enacted Fiscal Year 2018 budget agreement.  The effort has led to spirited comments from budget leaders.  Committee on Appropriations leaders have expressed vocal concerns that any attempt to rewrite the comprehensive budget agreement would only serve to exacerbate divisions within Congress, as it seeks to wrap-up the 2019 budget before the November elections, foreshadowing a showdown leading to a shutdown weeks before the midterms.

Senate Votes on USEPA Number Two

After months of delays to confirm Andrew Wheeler to become Deputy Administrator of the U.S. Environmental Protection Agency (USEPA) came to an end on Thursday when the Senate approved Wheeler’s nomination on a recorded vote of 53-45.

Wheeler, who drew concerns from environmental organizations over his past representation of coal mining interests, secured key support of a number of Democrat and Republican Senators in recent days, setting up a vote that would guarantee the delivery of a majority vote of approval.  Wheeler served as the chief staffer for the Senate Committee on Environment and Public Works for then Chairman James Inhofe (R-OK), where he worked on a bipartisan basis.  Wheeler’s confirmation is important because the number two position in the agency is traditionally responsible for managing the day-to-day operations of USEPA and its programs.  But the confirmation of Wheeler is equally important because of the unrelenting challenges to Administrator Scott Pruitt’s tenure.  If Pruitt were to be sidelined (or appointed to another position), Wheeler would likely step in as the Acting Administrator.

Administration Moves to Fast Track Environmental Reviews

This week, the Administration continued its efforts to streamline the environmental review process to expedite infrastructure projects.  Twelve federal agencies, including the U.S. Environmental Protection Agency, U.S Army Corps of Engineers and  Federal Energy Regulatory Commission, signed a Memorandum of Understanding (MOU) aimed at streamlining the environmental review of major infrastructure projects under the National Environmental Policy Act.

The streamlining of permits is a major component of the infrastructure initiative, announced by the Administration in February 2018.  The MOU implements a strategy outlined under the One Federal Decision policy established in Executive Order 13807.  The MOU emphasizes four principles:

  • Establish a Lead Federal Agency for the Complete Process. Under the current process, project sponsors are responsible for navigating the decision-making processes of multiple federal agencies. Under the MOU, federal agencies agree to establish one Lead Federal Agency that will navigate the federal environmental review and permitting process.
  • Commitment to Meeting the Lead Federal Agency’s Permitting Timetable. Under the current process, agencies are not generally required to follow a comprehensive permitting timetable. Under the MOU, federal agencies agree to follow the permitting timetables established by the Lead Federal Agency with the goal of completing the process in two years.
  • Commitment to Conduct the Necessary Review Processes Concurrently. Under the current process, agencies may conduct their own environmental review and permitting processes sequentially resulting in unnecessary delay, redundant analysis and revisiting of decisions. Under the MOU, federal agencies agree to conduct their processes at the same time and rely on the analysis prepared by the Lead Federal Agency to the maximum extent possible.
  • Automatic Elevation of Interagency Disputes. Under the current process, interagency disputes sometimes linger for years in agency field offices before being elevated and resolved.  Under the MOU, federal agencies agree that interagency disputes will be automatically elevated and expeditiously resolved.

WOTUS Update

The U.S. Environmental Protection Agency (USEPA) is seeking to clarify its repeal of the Waters of the U.S. (WOTUS) Rule.  USEPA is seeking to clarify after its initial rule proposal caused confusion on the scope of the rule’s repeal.  Currently, the Administration is conducting a multi-phase process to review, repeal, and replace the 2015 WOTUS Rule.

House Republicans Prepare to Move Controversial Farm Bill Reauthorization

On Thursday, House Committee on Agriculture Chairman Mike Conway (R-TX) introduced the

Agriculture and Nutrition Act of 2018, H.R. 2 (2018 Farm Bill).  Conway announced plans to mark up the billion April 18, despite an expected partisan battle over changes to Supplemental Nutrition Assistance Program (SNAP). SNAP payments account for approximately 80% of total funds authorized under the Farm Bill.  The U.S. Department of Agriculture (USDA) estimates over 80% of the SNAP funds are spent by recipients at food stores with additional assistance provided through an extensive food assistance network.

H.R. 2 proposes to tighten eligibility criteria and expanded work requirements for nutritional assistance program, House Democrats have cautioned that these controversial provisions could threaten the entire bill.  Senate Committee on Agriculture Chairman Pat Roberts (R-KS) has signaled that he has no plans to include new job-training requirements in the yet-to-be released Senate bill.

H.R. 2 includes several key provisions related to conservation stewardship and forest health:

  • Folds the Conservation Stewardship Program into the Environmental Quality Incentives Program into the Environmental Quality Incentives Program.
  • Amends the Healthy Forests Restoration Act of 2003 to increase the project size limitation of the categorically excluded collaborative restoration projects from 3,000 acres to 6,000 acres. In addition, the bill removes the requirement for consultation under Section 7 of the Endangered Species Act for a project carried out by the Forest Service if the project is found not likely to adversely affect a listed species.
  • Combines USDA trade programs, the Market Access Program and Foreign Market Development, under a new International Market Development Program.
  • Leaves the commodity program largely unchanged, while allowing farmers to choose whether to switch from the Agriculture Risk Coverage to the Price Loss Coverage program.

Section-by-Section Summary of the 2018 Farm Bill

House Judiciary Subcommittee Litigation Infrastructure Hearing

On April 12, the House Committee on Judiciary Subcommittee on Regulatory Reform, Commercial and Antitrust Law held a hearing to examine two bills, “Permitting Litigation Efficiency Act of 2018” (PLEA) (H.R. XX ) and the “North Texas Water Supply Security Act of 2017” (H.R. 4423).  PLEA aims to deliver permitting reforms to establish faster agency decision-making, establishes a prompt statute of limitations for lawsuits against projects in the permitting process, and has courts consider the possible economic and environmental harms that occur if the projects in question are delayed.

During the hearing, members asked witnesses about the permitting delays associated with National Environmental Policy Act (NEPA), the litigation that occurs under it, and how PLEA aims to address the issues.  Emily Hammond, Associate Dean for Public Engagement at George Washington University Law School, testified that PLEA would have adverse impacts on public engagement and federalism during the NEPA process.  She cited that PLEA’s five million-dollar bond requirement for litigants to bring legal challenges limits access and ability to citizens and local governments who want to be included in the federal permitting process and decision making.  E. Donald Elliott, Adjunct Professor at the Yale Law School and Chair of the Environmental Practice Group of Covington & Burling LLP, and William Kovacs, former Senior VP for Environment, Technology and Regulatory Affairs at the U.S. Chamber of Commerce, disagreed with Hammond and explained that while they support NEPA, the litigation, neglect of economic and environmental costs due to project delays, and lack of clear review and legal deadlines in the process require remedies that PLEA provides.

When asked about what impacts NEPA and litigation delays have on public works projects, Mike Rickman, Deputy Director of Operations and Maintenance of the North Texas Municipal Water District, explained that the impacts are related to project timeliness and costs.  He also said that the impacts of permitting delays are especially acute for water infrastructure projects.  This is because water is a public health and safety necessity that must be reliably provided and that a water district’s population size is unpredictable and can see tremendous unexpected growth.

House Natural Resources Subcommittee Oversight Hearing

On April 12, the House Committee on Natural Resources Subcommittee on Water, Power and Oceans held an oversight hearing to examine the Fiscal Year 2019 (FY19) budget requests and priorities for the U.S. Fish and Wildlife Service, the U.S. National Oceanic Atmospheric Administration, U.S. Bureau of Reclamation (USBR), and the Four Power Marketing Administrations.

During opening remarks, the Ranking Member, Jared Huffman (D-CA), stated that the agencies’ budget requests are highly problematic because they do provide the necessary investments to protect the nation’s water resources, infrastructure, environment, and coastal communities.  Huffman highlighted that the budgets do not sufficiently invest in necessary modern water infrastructure projects such as water reuse and recycling, stormwater capture, desalination projects, Title XVI water infrastructure projects, and drought resiliency.  Additionally, the budgets do not invest in modern infrastructure crucial for protecting coastal communities.

Chairman Doug Lamborn (R-CO), asked Assistant Secretary for Water and Science, Timothy Petty, about USBR’s efforts to streamline water project reviews and use of title transfers.  Petty responded that USBR is working with all the relevant agencies, parties, and communities to conduct title transfers where transfers are appropriate.

Testifying at the hearing were Timothy Gallaudet, Acting Under Secretary for Oceans and Atmosphere at the U.S. Department of Commerce, Timothy Petty, U.S. Department of the Interior Assistant Secretary for Water and Science, Mark Gabriel, Administrator of the Western Area Power Administration, Kenneth Legg, Administrator of the Southeastern Power Administration, Mike Wech, Acting Administrator of the Southwestern Power Administration, and Elliot Mainzer, Administrator of the Bonneville Power Administration.

House Appropriations Committee Examines USDOI FY19 Budget

On April 11, the House Committee on Appropriations Subcommittee on the Interior, Environment, and Related Agencies held a hearing examining the U.S. Department of the Interior’s (USDOI) Fiscal Year 2019 Budget request.  USDOI Secretary Ryan Zinke testified.

Chairman Ken Calvert (R-CA), opened the hearing noting that some of the challenges facing USDOI are related to the Endangered Species Act (ESA) and the ability to remove recovered species from the listing.  Calvert noted that this has caused frustrations for states and local communities and numerous policy riders in congressional appropriations bills.  Calvert said that solving ESA issues will take collaborative partnerships between governmental and non-governmental groups.

During the hearing, Zinke discussed three key areas of concern within the regulatory process that the Office of Inspector General discovered.  The first is the practice of sue and settle.  The second category is compensatory litigation, where project sponsors need to pay high fees in order to receive permits under certain circumstances.  The third is not having proper agency procedures when awarding grants to avoid conflict of interests in grant decision making process.

Legislative Activity This Week

H.R. 4177, PREPARE ACT – House Committee on Transportation and Infrastructure mark up held and ordered to be reported out by voice vote. (April 12, 2018)

Reports, Studies, and News

National Wildland Significant Fire Potential Outlook, National Interagency Fire Center

The U.S. drought continued to worsen across the southwest and south-central states. Severe to extreme conditions expanded across southern California, Utah, Arizona, Colorado, New Mexico, Kansas, Oklahoma, and Texas.

EPA Awards $25.4 Million to Train and Assist Small Drinking Water and Wastewater Systems – U.S. Environmental Protection Agency press release about the agency awarding grants to help educate the nation’s small drinking and wastewater systems and private well owners on how to better protect water resources and the environment.

Congress Next Week

April 18, 2018

Senate Committee on Environment and Public Works – Hearing on the Appropriate Role of States and the Federal Government in Protecting Groundwater

House Committee on Natural Resources Subcommittee on Energy and Mineral Resources– Hearing on H.R. 3846 Power Counties Act

House Committee on Appropriations Subcommittee on Interior, Environment, and Related Agencies – Hearing on the FY 2019 Budget for the U.S. Forest Service

House Committee on Appropriations Subcommittee on Agriculture, Rural Development, Food and Drug Administration, and Related Agencies – Hearing on FY 2019 Budget for the U.S. Department of Agriculture

House Committee on Agriculture – Hearing to consider H.R. 2, Agriculture and Nutrition Act of 2018