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Final Outcome for Remaining Spending Agreements Left for Lame Duck

The President signed the second minibus, H.R. 6157, into law today after the House passed the bill on a vote of 361-61 on Wednesday.  The minibus contains funding for defense and health-related agencies and a stopgap spending bill for the remaining agencies that have not seen final spending agreements reached.  The remaining agencies include: U.S. Environmental Protection Agency, U.S. Geological Survey, National Oceanic and Atmospheric Administration, Department of Agriculture, Department of Transportation, and other domestic agencies.

The stopgap spending bill ensures that the agencies caught in the congressional budget debate receive federal funding at current-year spending levels until December 7, when a final spending agreement must be enacted, or Congress faces another possible shutdown moment.  The inability to secure agreement on a year-long spending bill is effectively a dispute centering upon policy riders as there appears to be general agreement between the two chambers on spending levels.  For the most part, the riders debate addresses environmental programs and the use of federal and state laws that are used to delay project activities or impose new mandates on the regulated community.

Prospects for Senate Vote on America’s Water Infrastructure Act Continue to Grow

The legislative priority to move America’s Water Infrastructure Act (S. 3021) to a vote in the Senate, continues to look promising.  Over the past week, Senate proponents of S. 3021 indicated that the bill could be brought to the Senate floor for a vote next week.  The persistent impediment to Senate passage is an effort by a Senator to require the permanent authorization of the Land and Water Conservation Fund (Fund). The Fund’s ability to collect revenues expires at the end of September.  The Fund supports ecosystem projects across the nation and is funded through energy-related royalties from oil and gas extractions.  The House Committee on Natural Resources has approved a bill to authorize the fund that is pending before the House for a vote.  Meanwhile, the Senate Committee on Energy and Natural Resources is expected to consider reauthorizing the Fund next week.

Assuming that the House recesses on September 28, final action to authorize the Fund would likely occur during the Lame Duck Session after the elections.  Even with such a delay, revenues remain in the Fund allowing for projects to continue to receive assistance in fiscal year 2019.  Assuming that the Senate committee’s action to renew the Fund is endorsed by proponents of permanently authorizing the Fund, the “hold” preventing Senate debate could be lifted, allowing a vote on S. 3021 next week before the Senate follows the House into recess for the congressional campaign season.

USEPA Moves NEPA Review Decision-Making To Different Office

The U.S. Environmental Protection Agency (USEPA) will move National Environmental Policy Act (NEPA) review operations from the Office of Enforcement and Compliance Assurance to the Office of Policy.  USEPA published the final rule to move NEPA reviews to the Office of Policy in the Federal Register.  The final rule describes the move as a procedural change and is not intended to substantively impact USEPA’s compliance with NEPA review operations.

Public Comment Period For ESA Proposed Rules Ends

On September 24, the public comment period ended for the Administration’s proposed rules to the Endangered Species Act (ESA).  The proposed rules were published in the Federal Register on July 25.  800,000 public comments were filed during the 60-day comment period.

The proposed rules aim to revise certain regulations within the ESA.  As the U.S. Fish & Wildlife Service (USFW) states, the rules “propose various measures to clarify and improve some of the standards under which listings, delisting, and reclassifications, and critical habitat designations are made.”  The public comments will be reviewed by USFW, National Oceanic and Atmospheric Administration, and U.S. Department of the Interior before issuing final rules.

U.S. Supreme Court Takes Up Endangered Species Act Case

Next week, the U.S. Supreme Court starts its new term and begins with an environmental case involving critical habitat designation.  The case, Weyerhaeuser Company v. U.S. Fish and Wildlife Service (USFWS), focuses on the dusky gopher frog, an endangered species that can only survive in a habitat that includes small, vernal ponds in a forest.  According to the court brief, USFWS designated in 2012 more than 1,500 acres of privately-owned forest in Louisiana as “critical habitat” in an expanded designation of critical habitat for the frog. However, the frog has not been found in the designated habitat for over 50 years.  Weyerhaeuser, a timber company, contends that the designation could result in up to $34 million in lost revenue for the company.  The case centers upon two key questions:

  • Whether the Endangered Species Act prohibits designation of private land as unoccupied critical habitat that is neither habitat nor essential to species conservation; and,
  • Whether an agency decision not to exclude an area from critical habitat because of the economic impact of designation is subject to judicial review.

Brief of petitioner Weyerhaeuser Company

Brief of intervenor-respondents Center for Biological Diversity and Gulf Restoration Network

Another WOTUS Motion Filed

The American Farm Bureau Federation, along with other groups, filed a motion in the U.S. District Court for the Southern District of Georgia, requesting that it turn a U.S. District Court injunction of the Waters of the U.S. Rule (WOTUS) into a nationwide injunction.  Currently, WOTUS is implemented in 22 states and on-hold in 28 states.

In the motion, the plaintiffs argue that “a rule (WOTUS) this fundamental to the CWA’s regulatory scheme should not apply in a patchwork manner.”  They request that a nationwide stay should be instituted to allow for “consistency in preventing harmful enforcement of the WOTUS Rule.”

The WOTUS Rule is a regulation under the Clean Water Act that defines the nation’s waterways.  The current ongoing legal controversies centers around a 2015 rule change.

Senate Committee Advances FEMA Nominee

The Senate Committee on Homeland Security and Government Affairs advanced the nomination of Peter Gaynor to be Deputy Administrator at the Federal Emergency Management Agency.  The Committee reported out Gaynor’s nomination by voice vote.  The nomination now goes to the Senate Floor to be considered.

House Subcommittee Examines Litigation Under Equal Access to Justice Act

The House Committee on Oversight and Government Reform Subcommittee on Interior, Energy, and Environment held a hearing to examine “environmental litigation against federal agencies and identify reforms to curb excessive litigation” and consider how attorney fees are awarded under the Equal Access to Justice Act (EAJA).  Testifying at the hearing were:

  • Jonathan Brightbill, Deputy Assistant Attorney General, Environment and Natural Resources Division, U.S. Department of Justice;
  • Lawson Fite, General Counsel, American Forest Resource Counsel;
  • Ryan Yates, Director of Congressional Relations, American Farm Bureau Federation; and,
  • Sara Colangelo, Environment Law and Policy Program Director, Visiting Professor of Law, Georgetown University Law Center.

During the hearing, witnesses acknowledged that the current way in which attorney litigation fees are awarded, and recovered, is inconsistent with congressional intent.  The witnesses testified that reforms to increase transparency, consistency and equity in litigation, and attorney fee recovery processes are needed.  However, Colangelo cautioned the subcommittee that “painting with too broad of a brush in altering EAJA, citizen suit provisions, or even NEPA itself risks devastating consequences” and recommended that “the best way to move forward is to collect information.”  By collecting information, she explained, “we make what’s going on with EAJA more transparent and likely would end up with more consistency.”

House Committee Advances ESA Bills

The House Committee on Natural Resources advanced four bills aimed to reform the Endangered Species Act.  The ten bills now head to the House Floor.  The bills include:

  • H.R. 3608, Endangered Species Transparency and Reasonableness Act. – Rep. Tom McClintock (R-CA)
  • H.R. 6345, EMPOWERS Act of 2018. – Rep. Stevan Pearce (R-NM)
  • H.R. 6346, WHOLE Act of 2018 – Rep. Mike Johnson (R-LA)
  • H.R. 6355, PETITION Act of 2018. – Rep. Burce Westerman (R-AR)

Legislative Activity This Week

S. 3137, Reforming Government Act. – Reported out as amended of the Senate Committee on Homeland Security and Government Affairs by voice vote.

H.R. 6229, National Institute of Standards and Technology Reauthorization Act of 2018. – Passed the House by voice vote.

New Legislation

H.R. 6887, To improve the removal of lead from drinking water in public housing. – Rep. Daniel Kildee (D-MI)

S.3492, A bill to improve the removal of lead from drinking water in public housing. – Sen. Tammy Duckworth (D-IL)

H.R. 6889, To amend the Federal Water Pollution Control Act to make changes with respect to water quality certification, and for other purposes. – Rep. David McKinley (R-WV)

H.R. 6944, To establish centers of excellence for innovative stormwater control infrastructure, and for other purposes. – Rep. Denny Heck (D-WA)

Reports and Regulation

Army Corps Regulatory Program Workshop (Sacramento – Oct 26, 2018) – Information on how to sign up for U.S. Army Corps of Engineers October workshop on Jurisdiction -how the 2015 Clean Water Rule changes jurisdictional determinations in California.

White House National Cyber Strategy – Details the Administration’s cyber strategy.

Flames and Flows – How Wildfires Impact Healthy Rivers – Audio Podcast by American Rivers about how wildfires impact river health.

2017 Hurricanes and Wildfires: Initial Observations on the Federal Response and Key Recovery Challenges. – U.S. Government Accountability Office report on the 2017 hurricane and wildfire seasons.

Wasting wastewater: new report identifies water recycling opportunities – KXBX report and audio about a new report that details how much water coastal California wastewater treatment plants release into the ocean and how much water could be saved with better water management.

Congress Next Week

October 3, 2018

Senate Committee on Environment and Public Lands – Hearing on the Oversight of the Environmental Protection Agency’s Implementation of Sound and Transparent Science in Regulation