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FY 2019 Budget Talks, One Week To Go

With one week before Congress hits the December 21 deadline to pass a fiscal year 2019 budget, congressional leadership and Administration officials have yet to identify a path forward to avoid a limited governmental shutdown. The meeting between the president and House Speaker designate Nancy Pelosi (D-CA) and Senate Democratic Leader Charles Schumer (D-NY) only served to throw fuel on an already combustible situation when the president declared he would shut-down the government if the border wall is not funded at $5 billion.   Lawmakers have limited options to keep the government open; either pass a FY2019 budget agreement or another short-term or year-long continuing resolution (CR).  While there is no appetite to shut-down the government, the president’s statement that effectively put all the chips on the table when he committed to walk away from any deal that does not fund his border wall priority.  Democrats (and some Republicans) have already stated that $5 billion in funding is a nonstarter.  During the meeting, Schumer hinted that a possible solution could be to pass a year-long CR.  However, it is still unclear what Congress and the White House plan to do.

WOTUS Finally Released

After months of development, the U.S. Environmental Protection Agency unveiled a new proposed rule for the Waters of the U.S. rule (WOTUS).  Once the rule is published in the Federal Register, there will be a 60-day public comment period.

Under the Clean Water Act, the definition of WOTUS clarifies which waters are subject to federal regulation under the Clean Water Act.  The rulemaking has been a decades long endeavor starting with a set of Supreme Court decisions that triggered the rulemaking and subsequent rewrite process by the Trump USEPA.  Central to the controversy, and the one constant in the effort to define which waters are subject to regulation, was the 2015 Obama Administration’s definition that redefined the term “navigable waters” to include traditional navigable waters, interstate waters, interstate waters, territorial seas, tributaries, adjacent waters, and those of significant nexus.  The WOTUS rulemaking has caused endless legal confusion and regional controversy due to competing federal judicial decisions surrounding the implementation of the rule and its development.

The proposed rule relies on the late Justice Antonin Scalia’s Rapanos opinion that severely limited the scope of “navigable waters” definition compared to the Obama 2015 definition. Navigable waters under the new proposed rule refers to six types of waterways: traditional navigable waters, tributaries, impoundments, wetlands that are adjacent to traditional navigable waters, ditches, and certain lakes and ponds.  The new rule would only apply to streams that flow year-round or flow intermittently into larger water bodies during a typical year.  Streams that flow only after heavy rainfall or snowmelt are not covered under the new rule.  Wetlands that have a direct surface water connection to tributaries would be covered, but wetlands that are separated from tributaries by land, dikes or other landforms are not protected.  The proposal retains the existing waste treatment exemption that ensures that permitted point sources, including publicly owned wastewater treatment works would not be subjected to additional and unreasonable regulatory mandates.

The proposed rule has generated predictable reactions from lawmakers and stakeholders. Among the issues raised from opponents of the narrower definition are questions concerning the data that USEPA and U.S. Army Corps of Engineers relied upon to draft the new proposed rule.  Legal challenges to the rulemaking are anticipated, further delaying any implementation of the rule for an unknown period of time.

Congress Sends 2018 Farm Bill to President

The 2018 Farm Bill is headed to President Trump’s desk where it is expected to be signed into law. After a lengthy debate over divisive work requirements for food-stamp recipients and provisions to expedite forest management projects to mitigate wildfire, the House passed the bill by a strong bipartisan vote of 369-47 and the Senate passed the bill by a vote of 87-13. The final bill rejected the controversial food stamp and forestry provisions.

Key provisions of H.R. 2 – the Agriculture Improvement Act of 2018 include:

Conservation

  • Maintains current spending levels for the Small Watershed Rehabilitation Program ($85 million through FY 2023).

Rural Development

  • Reduces the authorization for USDA’s water, waste disposal and wastewater facility grants from $30 million to $15 million each year.
  • Language directing USDA, DOE and USEPA to establish an Interagency Biogas Task Force building upon the existing Biogas Opportunities Working Group. The Task Force is directed to coordinate policies and programs to accelerate biogas research and investments into biogas systems.
  • Increases annual authorizations for the Distance Learning and Telemedicine Program (from $75 million a year to $82 million a year).
  • Allow counties with regional jails to exclude incarcerated individuals from population caps for funding eligibility under USDA-Rural Development programs.
  • Creates an Interagency Council on Rural Community Innovation and Economic Development.
  • Creates a new Rural Innovation Stronger Economy (RISE) grant program.
  • Authorizes the Secretary of Agriculture to make loans or loan guarantees available to communities for cybersecurity and grid security improvements.

Forestry

  • Reauthorizes Good Neighbor Authority and expands it to allow counties and tribes to enter into agreements with the U.S. Forest Service to conduct forest management projects.
  • Prioritizes cross-boundary hazardous fuels reduction projects to protect and enhance critical watersheds and expands opportunities for the Forest Service to cooperatively manage projects on federal lands with state, local, and tribal governments.
  • Creates a new State and Private Forest Landscape‐Scale Restoration Fund grants program for collaborative, science-based landscape restoration projects.
  • Establishes Cross-Boundary Wildfire Mitigation grants program to carry out hazardous fuel reduction projects on federal and non-federal land.
  • Creates a Water Source Protection Program for forest restoration projects that enhance watershed resiliency on National Forest System land.  Authorizes the use of “water source investment” partnership agreements with non-Federal partners, including municipal water agencies.
  • Requires the development of a Watershed Condition Framework to evaluate the condition of watersheds and for the USDA-FS to identify up to 5 priority watersheds for restoration projects.

Informational Graphic on the 2018 Farm Bill

Senate Democrats Name Committee Leadership For The 116th Congress

This week, Senate Democratic Leader Chuck Schumer (D-NY) announced committee membership assignments for the 116th Congress.  A list of committee leadership can be found in the below PDF.

Senate Democrat Committee Assignments for the 116th Congress

New Legislation

H.R. XXXX, PFAS Detection Act. – Rep. Dan Kildee (D-MI)

Reports and Regulation

Proposed Rule – The Environmental Protection Agency is proposing to establish a federal Clean Water Act selenium water quality criterion applicable to California that protects aquatic life and aquatic-dependent wildlife in the fresh waters of California.

Proposed Rule – Proposed Modification to National Pollutant Discharge Elimination System General Permit for Stormwater Discharges from Construction Activities.

Congressional Budget Office Report – Options for reducing the federal deficit over the next 10 years.

Rethinking the Past’ In the Aftermath of California’s Deadly Wildfires (NPR) – Story on the complicated reality of long-term forest management plans in the aftermath of the recent deadly wildfires.

California Insurance Commissioner reports over $9 billion insured losses from deadly 2018 wildfires – Press release from the California Department of Insurance about the insurance losses from the 2018 wildfires.