Our ENS Federal Report provides a summary and the status on select legislative and regulatory actions.
We normally issue a Report when both Chambers are in session.
ENS Federal Report – July 20, 2018
House Approves USEPA Spending Bill on almost Party Line Vote
In an unusual vote, the House of Representatives generally voted along party lines to approve the second “minibus” spending bill H.R. 6147. H.R. 6147 packages budgets for the U.S. Environmental Protection Agency, U.S. Geological Survey (USGS), and programs that fall within financial services and the General Services Administration. The vote was 217 – 199 with 15 Republicans siding with Democrats and no Democrats voting in favor of the bill. The action sets up the potential for a challenging conference committee with the Senate later this fall due to policy riders and program spending priorities. The White House issued a statement of qualified support of the spending bill, noting the commitment to water infrastructure spending under the State Revolving Loan Fund (SRF) and WIFIA that are funded at $2.5 billion and $75 million respectively. In funding these programs, a priority is made to assist financially pressed communities with increased subsidies (loan forgiveness or negative interest) as part of any assistance provided under the SRF. Twenty percent of the funding under the SRF drinking water and ten percent under the clean water SRF funding to states would be set-aside to support the subsidies.
Within the USGS, the bill would fund critical water resources programs such as streamgage networks and other information programs at $86 million and specifically make $12 million available to invest in new infrastructure for streamgage network needs. Within the U.S. Forest Service budget, the bill supports aggressive fuels reduction programs by providing $50 million. It also rejects efforts to curtail collaborations with nonfederal entities such as local water and fire agencies to develop infrastructure projects to reduce the threats from wildfires.
The bill contains several policy riders that are certain to complicate finalization with the Senate version, which avoids policymaking through the appropriations process. Among the provisions expected to prove especially contentious are: provisions to prohibit the use of federal resources to implement California’s Bay Delta Program to eliminate impacts to New Melones Project, provisions to override federal and state laws that could be employed to challenge final project environmental reviews related to California water supply and storage projects, prohibit use of funds to issue RCRA rules on CAFO’s, and extending U.S. iron and steel mandates on drinking water infrastructure loans and grants provisions.
Senate Preparing to Debate America’s Water Infrastructure Act
With the August Senate recess looming, preparations are underway to bring America’s Water Infrastructure Act (S. 2800) to the Senate floor for debate and a vote. S. 2800 is the Senate version of the House-passed Water Resources Development Act (H.R. 8) that would renew U.S. Army Corps of Engineers flood protection and navigation programs. A major difference between the two bills is S. 2800’s broader provisions that would create new programs of water infrastructure and resiliency assistance, and water efficiency programs at the U.S. Environmental Protection Agency. In addition to these programs, efforts are underway to seek a floor amendment to S. 2800 that would create a new loan assistance program to support water recycling and storage projects in the western U.S., expedite federal project title transfers, and enhance projects that support aquifer augmentation and recharge needs at the over-drafted groundwater basins. While support for passage is considered strong, ongoing discussions related to the costs associated with proposed infrastructure assistance programs and the impacts associated with state groundwater programs and policies still need to be finalized before the bill is brought up for floor debate and a vote. According to Senate staff, every effort is being made to act on the bill before next week.
Department of the Interior Publishes Ambitious Rewrite of ESA Regulations
The U.S. Department of Commerce – National Oceanic and Atmospheric Administration (NOAA) and the U.S. Department of the Interior – Fish and Wildlife Service announced proposed regulations to revamp the way in which the Endangered Species Act (ESA) is implemented to list or delist species and the process by which habitats are designated as critical for purposes of assisting in the protection of listed species. The proposal will be published and be seek public comments as early as Friday, July 20. Comments must be submitted within sixty days of the publication date.
The proposed rule would revise the process of listing species by requiring the use of best science and biological considerations. The economic impacts of any listing decision would also be a factor in making listing decisions. In a nod to critics’ views that ESA has been used to address issues beyond congressional intent, the proposal would preclude taking actions to protect species impacted by drought, sea level rise or glacial melting, for example, and limit species designations to impacts associated with diseases. The proposal also clarifies the use of threats into the future, mandating that any review be limited to the “foreseeable future.” The definition of foreseeable future is to be defined on a case-by-case basis with an apparent commitment to rely on the best scientific and commercially available data. Consideration of factors like lifespan, reproductive rates, productivity, certain behaviors, and other demographic factors are identified as defining foreseeable. The designation of critical habitat designations would also be revamped to avoid expansive habitat designations that are unsupported by the best science.
Senate Committee Considers Endangered Species Act Modernization
On July 17, the Senate Committee on Environment and Public Works held a hearing on the Discussion Draft bill, The Endangered Species Act Amendments of 2018 (S. XXXX), sponsored by Chairman John Barrasso (R-WY). Barrasso opened the hearing emphasizing the need to modernize the Endangered Species Act (ESA) in order to effectively protect and recover species. Broadly, the discussion draft would elevate states’ role in partnering with the federal government during the ESA process, allow states to lead species conservation and recovery efforts, increase regulatory certainty, increase transparency, and prioritize listing petitions so that limited resources are directed to those species most in need.
The committee heard from two panels. The first included Matthew Mead, Governor of Wyoming, and the second panel included Bob Broscheid, Director, Colorado Parks and Wildlife, and Matthew Strickler, Secretary of Natural Resources, Commonwealth of Virginia.
Mead testified on behalf of the Western Governors Association’s (WGA) bipartisan statutory recommendations on ways in which to modernize ESA. The discussion draft incorporated WGA’s recommendations, including addressing litigation timeline(s) to list and delist decisions, and enhancing the role of states in managing their ESA listings.
Barrasso asked Mead about ESA-related litigation and what Mead thought about the discussion draft’s provision that establishes a five-year monitoring period, which Barrasso called a “cooling-off period,” after a species is delisted when litigation against the delist decision is not permitted. Mead said that a cooling-off period would be helpful, because it supports voluntary local and state engagement in ESA conservation efforts. People would know that their efforts will be rewarded and not derailed by litigation at the end of the process he explained.
Senator Ben Cardin (D-MD) continued with the topic of judicial review of ESA and stressed the need to have checks and balances in the system. Judicial review is a necessary part, but if we want to have voluntary state and local support in recovering species, then there needs to be an incentive for participation Mead stated. He explained that, currently, there is no clear time frame for judicial review in the ESA process, which can make it a frustrating process. Cardin noted that there may be issues in the ESA statute about judicial review and timeliness, but judicial review remains important and Congress should address it.
Ranking Member Tom Carper (D-DE) noted that funding is key to ESA conservation, but that the discussion draft does not address the funding issue. He asked Mead if he thought Congress should address this. Mead said that funding is always important, but what is also important is that financial resources are spent on activities that help species protection and recovery and are not overwhelmingly spent on litigation strategy(s).
Strickler expressed concerns of the Office of Virginia Governor Ralph Northam has with the discussion draft. Strickler agreed that more needs to be done to effectively protect threatened and endangered species, but he explained that the discussion draft’s provisions would hinder Virginia’s ability to work with federal partners, complicate ESA’s protection and recovery processes, and that the draft’s “well intentioned efforts to amend the ESA could open the door to provisions that would harm its [ESA] essential purpose.” As a result, Strickler stated that the Commonwealth of Virginia does not support the draft in its current form. Instead, Strickler said that he hopes to work with Congress to improve ESA by securing reliable funding for federal and state wildlife agencies to accelerate ESA-listed species recovery.
Senate Environment and Public Works Committee Considers CEQ Nominee
On July 19, the Senate Committee on Environment and Public Works considered the nomination of Mary Bridget Neumayr, to become Chair of the Council on Environmental Quality (CEQ). Since March 2017, Neumayr has been serving as Chief of Staff of CEQ. CEQ is responsible for developing, reviewing, and recommending national policies concerning environmental quality, including overseeing and reviewing the implementation of the National Environmental Policy Act (NEPA) process.
Neumayr testified,if confirmed, her highest priority will be “to advance the practical, efficient and effective implementation of NEPA, as well as our nation’s other environmental laws, and to promote environmental protection consistent with Congressional directives.” She highlighted that CEQ has worked with the Office of Management and Budget and other federal agencies to create a framework in response to the Administration’s Executive Order 13807 that directs federal agencies to streamline infrastructure projects’ environmental reviews and permitting decisions. She also highlighted that CEQ is undertaking actions to review its NEPA process. In June, CEQ published a notice of its proposed rulemaking to determine what possible changes could be made to NEPA to modernize its implementation.
Ranking Member Tom Carper (D-DE) asked Neumayr what changes she envisions making to CEQ’s NEPA process. She said that CEQ is seeking to determine if there are any commonsense updates, revisions, or clarifications to make to NEPA, since the law has only been revised once since its enactment in the 1970s. Neumayr noted any that possible revisions must not compromise the Act’s environmental protection responsibility.
Senator Deb Fischer (R-NE) questioned Neumayr on how CEQ would advise the President, in collaboration with federal agencies, to promote policies that ensure stakeholders have a clear roadmap before the federal review process, while still protecting the environment. Neumayr explained that CEQ has been working with federal agencies to implement the One Federal Decision (E.O. 13807) by developing a Memorandum of Understanding that outlines the agencies’ roles during a two year environmental review and permitting process. She highlighted that one aspect of the plan will be for the lead agency to develop a schedule, and the other participating agencies will develop a single environmental impact statement. The goal of this is to increase and improve agency coordination and communication in order to meet deadlines, while protecting the environment and providing stakeholders certainty in the review process.
Congress Moves Closer to Conference on Farm Bill
The conference will begin once the Senate names members to the conference committee next week. Among the issues to be reconciled are nutrition aid, farm subsidies, and forestry management programs to improve forest health.
Legislative Activity This Week
H.R. 3906, Innovative Stormwater Infrastructure Act of 2018. – The House passed the bill as amended by voice vote.
H.R. 6040, Contra Costa Canal Transfer Act. The House Committee on Natural Resources reported the bill out committee by unanimous consent
Reports and Regulations
Bipartisan Congressional Letter on PFAS, PFOA, and PFOS – Bipartisan letter from U.S. House Members to the U.S. Environmental Protection Agency Acting Administrator Andrew Wheeler expressing concerns about drinking water contamination from PFAS, PFOA, and PFOS.
Congress Next Week
July 24, 2018
Senate Committee on Agriculture, Nutrition, and Forestry – Hearing on the Nomination of Dan Michael Berkovitz to be a Commissioner of the Commodity Futures Trading Commission, and James E. Hubbard to be Under Secretary of Agriculture for Natural Resources and Environment.
Senate Committee on Commerce, Science, and Transportation – Hearing on NOAA’s Blue Economy Initiative: Supporting Commerce In American Oceans and Great Lakes.
July 25, 2018
House Committee on Natural Resources – Hearing on the Management Crisis at the Puerto Rico Electric Power Authority and Implications for Recovery.
House Committee on Energy and Commerce – Hearing on the Background on Renewable Identification Numbers under the Renewable Fuel Standard