May 06, 2011

In This Issue


The House Transportation and Infrastructure Subcommittee on Water Resources and Environment met May 5 for the first in a series of hearings entitled “EPA Mining Policies: Assault on Appalachian Jobs.”

The hearings are in reaction to the Obama administration’s review of coal mining projects and the recent interim Environmental Protection Agency (EPA) guidance for issuing mountaintop removal permits in Appalachia. The guidance is currently under review of the White House Office of Management and Budget (OMB). Of the hearing’s four witnesses, none was opposed to mountaintop removal mining.

Coal industry supporters on Capitol Hill believe the guidance, which sets the first-ever numeric standard for water conductivity—which  EPA says measures degradation from mining debris—is a significant departure from previous federal oversight of mountaintop removal mining. The mining technique being targeted by the guidance involves dynamiting mountaintops to expose coal seams and disposing of debris in adjacent valleys.

Critics of the guidance assert it amounts to new regulations without having gone through the rulemaking process.  Proponents of the guidance maintain that Appalachian mountaintop removal mining is particularly harmful to both ecosystems and people, while producing only a fraction of America’s overall coal output.

In his opening remarks Water Resources and Environment Subcommittee Chairman Bob Gibbs (R-OH) asserted “while Congress has passed no law amending the Clean Water Act, and the Environmental Protection Agency has promulgated no new regulation changing the Clean Water Act, EPA has issued Draft and Interim Guidance that substantively changes how the Clean Water Act applies to surface mining and is using it as de facto law to unlawfully delay or kill Clean Water Act permits for surface mining operations in Appalachia.”

Chairman Gibbs contended that the guidance fails to take into account economic consequences to the mining industry, a sentiment echoed by the committee’s coal state lawmakers, Reps. Shelley Moore Capito (R-WV) and Nick Rahall (D-WV), who also serves as the full committee’s ranking member. In March, Rep. Rahall sent a letter to OMB, prompting it to review the guidance process that was used.

The hearing had low attendance from committee Democrats outside of Rep. Rahall and Subcommittee Ranking Member Tim Bishop (D-NY), who asserted that there needs to be a balance between ensuring economic growth and protecting the environment for current and future generations. “We are also coming to recognize energy generation itself comes with a significant cost. As the experiences of the past few years have demonstrated, the goals of domestic energy generation and protection of the environment are not mutually exclusive,” he said. “The reality is the pendulum cannot swing too far to either side.”

To view the Rahall letter, see:


On May 4, the US Department of Interior’s Fish and Wildlife Service (FWS) published a final rule to remove gray wolves in Idaho and Montana as well as parts of Oregon, Utah and Washington, from the threatened or endangered list under the Endangered Species Act (ESA). The move comes per the direction of language in the recently enacted  appropriations bill for Fiscal Year 2011.

The wolf delisting provision was championed by of House Interior and Environment Appropriations Chairman Mike Simpson (R-ID) and Sen. John Tester (D-MT). Conservation and scientific groups are concerned that the delisting could pave the way for removal of additional species through legislative means that circumvent—as this one did—the usual delisting process.

Department of Interior Secretary Ken Salazar touted the delisting as “a success story,” comparing the gray wolf to the recovery of the whooping crane, brown pelican and bald eagle. Interior Deputy Secretary David Hayes noted that the agency will continue to apply the ESA’s “post-delisting monitoring requirements” to help ensure the wolf populations continue to flourish under state management.

Some, such as Senator Orrin Hatch (R-UT), claim the delisting language did not go far enough. Hatch is the lead sponsor of S. 249, the American Big Game and Livestock Protection Act, which would remove ESA protections for gray wolves nationwide. Identical legislation (H.R. 509) has been introduced in the House by Rep. Denny Rehberg (R-MT).

Great Lakes Wolves

The FWS also published a proposed rule to remove gray wolves from ESA protection in the western Great Lakes region, including Michigan, Minnesota, Wisconsin and portions of adjoining states.

Wolf numbers now total more than 4,000 in the three states, according to the agency. Wisconsin’s wolf population is an estimated 800 wolves, behind only Alaska and Minnesota Michigan is estimated to have roughly 630 wolves while Minnesota has an estimated wolf population of 2,921.

As part of the proposed rule, the FWS would revise the range of the gray wolf by removing all or parts of 29 eastern states due to newer taxonomic information indicating that the gray wolf did not historically occur in those states. FWS is also initiating status reviews of gray wolves in the Pacific Northwest and is seeking information on a newly-recognized species, the eastern wolf. Written comments on the proposed rule for wolves in the western Great Lakes may be submitted by one of the following methods:

  • Click the link and follow the instructions for submitting comments to Docket No. [FWS-R3-ES-2011-0029].
  • U.S. mail or hand-delivery: Public Comments Processing, Attn: Docket No. [FWS-R3-ES-2011-0029]; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, MS 2042-PDM; Arlington, VA 22203.

Comments must be received within 60 days, on or before July 5, 2011. FWS will post all comments on

Public hearings for the proposed removal of wolves in the western Great Lakes and proposed removal of eastern states from the gray wolf listing will be held May 18 in Ashland, Wisconsin, and on June 8 in Augusta, Maine. More information on the hearings will be available at or by calling 612-713-5350.

FWS is expected to make a final decision on the proposal to delist by the end of the year. In the meantime, Great Lakes wolves will remain classified as endangered except in Minnesota, where they are classified as threatened.


On May 3, the House Natural Resources Committee and House Agriculture Committee met for a joint hearing that considered federal regulations on the use of pesticides that could pose a risk to salmon populations. Republican committee members assert the regulations, if implemented, could have devastating economic impacts on US farmers.

The hearing considered court-mandated National Marine Fisheries Service (NMFS) biological opinions (bi-ops) issued after a 2002 US District Court found that the Environmental Protection Agency did not sufficiently collaborate with NMFS and the Fish and Wildlife Service (FWS) on how pesticides may affect certain salmon protected by the Endangered Species Act. NMFS called for large spray buffer zones around waterways that would significantly limit the use of several pesticides on large swaths of Pacific Northwest and California farm land.

The bi-ops said salmon populations would be significantly harmed unless 1,000-foot pesticide buffer zones around waterways were put into place. Buffer zones that large would include 61 percent of farmland in Washington and 55 percent in Oregon, according to Natural Resources Committee Republicans. House Natural Resources Chairman Doc Hastings (R-WA) asserted that if the bi-ops become law, they would be in violation of President Obama’s executive order seeking to reduce regulatory burdens.

“Regrettably, the executive order is completely disconnected from the administration’s own actions arising out of its dual regulatory responsibilities of federal pest control registration and safety and the Endangered Species Act,” said Hastings in his written opening statement. He also noted that a 2010 NMFS report to Congress “touted stable or increasing trends for two-thirds of the listed salmon populations.” On Jan. 26, 2011, Chairman Hastings also spearheaded a bipartisan letter to Council on Environmental Quality Chairwoman Nancy Sutley expressing concern of the impacts of the bi-ops on the agricultural industry.

Representatives of NMFS, EPA and the FWS responded that regulatory problems were caused by the complexity of combining the conservation efforts of the Endangered Species Act with EPA’s pesticide regulations under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), noting that the agencies recently formed a working group to move forward and have sought guidance from the National Academy of Sciences.

Eric Schwaab, Assistant Administrator for NMFS noted that his agency was consulting with EPA on the effects of 37 pesticides on threatened and endangered Pacific salmon and working “on a tight schedule with resource constraints” to complete its consultation by April 30, 2012. Schwaab stated “protection and recovery of Pacific salmonids will help restore the economic vitality of salmonid-dependent industries and ensure the long-term survival of these important and iconic species.”

While there appears to be some bipartisan agreement in criticism of the bi-ops among Members, it remains unclear whether Congress will take action in the short term to prevent the bi-ops from becoming law. House Agriculture Chairman Frank Lucas (R-OK) called for EPA not to implement the bi-ops recommendations at least until the NAS review is completed.

The recent salmon-related threats originating in the House have led to the formation of a caucus intended to counter such efforts. On April 27, Rep. Mike Thompson (D-CA) announced the formation of the Wild Salmon Caucus. The bicameral bipartisan congressional caucus will be chaired by Reps. Thompson and Don Young (R-AK) as well as Sens. Ron Wyden (D-OR) and Lisa Murkowski (R-AK). According to Rep. Thompson, at the time of its formation, the caucus had about 25 members.

The House Natural Resources Committee held two other hearings this year on reduced water supplies for farmers, including a field hearing this month in Fresno that blamed the protection of delta smelt under the Endangered Species Act for causing unemployment in the San Joaquin Valley.

To view the Hastings letter, see:

-Energy and Environment Daily


On April 27, the Environmental Protection Agency and the US Army Corps of Engineers (USACE) released a revised draft guidance for determining whether a waterway, water body, or wetland is protected by the Clean Water Act (CWA). This guidance is intended to provide more clarity for determining which water bodies are protected by the CWA. The draft guidance will be open for 60 days of public comment before it is finalized.

The new guidance is part of the Obama administration’s national Clean Water Framework.  The new guidance is a revised version of a December 2010 draft that had received criticism for being too rushed. The latest draft of the guidance seeks to demonstrate that the Obama administration intends to begin a longer, more deliberative process to clarify the definition of federally protected waters. Both environmental supporters and industry opponents have called for regulation-writing as a way to address the question in a more permanent way.

The new proposal would replace an earlier guidance released in 2008 under the previous administration that defined the scope of the CWA more narrowly in the wake of two Supreme Court decisions that created uncertainty as to the law’s jurisdictional authority. In the most recent case, Rapanos v. United States (2006), a 4-1-4 plurality limited the CWA regulatory authority to “waters of the United States” that are “relatively permanent, standing or flowing bodies of water,” not “occasional,” “intermittent,” or “ephemeral” flows.

Environmental groups support the Obama proposal, while representatives of agriculture and industry assert it circumvents proper regulatory procedure and will have dire economic impacts. House Transportation and Infrastructure Water Resources Subcommittee Chairman Bob Gibbs (R-OH), a critic of EPA’s attempts to expand CWA enforcement, plans to hold hearings on the new guidance policy.

To view the draft CWA guidance from EPA and the (USACE) see:

To submit comments on the CWA guidance, see:!submitComment;D=EPA-HQ-OW-2011-0409-0001

To view the Obama administration’s Clean Water Framework and summary, see:


On April 27, the Ecological Society of America (ESA) submitted comments concerning a draft environmental impact statement from the Bureau of Land Management on potential effects of the withdrawal of federal land from uranium mining surrounding the Grand Canyon.

ESA wrote in support of BLM’s proposal to withdrawal one million acres for up to 20 years from uranium mining in the region. The draft impact statement included BLM’s proposal as well as three alternatives that consisted of either limited or no withdrawal of federal land.

In its comments, ESA noted that Grand Canyon National Park in Northern Arizona is home to numerous species which fall under protection of the Endangered Species Act. The letter noted that many species of concern would be adversely impacted in the event uranium were to contaminate water resources in the Grand Canyon. Amphibians and many predatory birds, including the bald eagle, California condor and peregrine falcon would be among the effected species, according to the letter. It also noted that surface disturbances typical of mining operations have large footprints due to dust and erosion.

In addition to ecological impacts the letter also cited the public health effects and economic downsides of uranium mining. The letter notes consequences documented by the Environmental Protection Agency studies on current effects of uranium exposure to Navajo people in the region. It also references the economic impacts of recent unforeseen environmental disasters, such the 2010 BP Gulf oil spill and the 1979 Church Rock mine accident in New Mexico.

To read the letter, see:


Introduced in the House

H.R. 1705, the Transparency in Regulatory Analysis Act– Introduced May 4 by Reps. John Sullivan (R-OK) and Jim Matheson (D-UT), the measure would require the executive branch to complete three cost-benefit analyses of the economic impacts of recent Environmental Protection Agency regulations for sulfur dioxide, nitrogen oxides, particulate matter, ozone and carbon dioxide and other air quality rules. The bill has been referred to the Energy and Commerce Committee and has bipartisan support from Republicans and moderate Democrats. Committee Chairman Fred Upton (R-MI) is also an original cosponsor of the legislation. Both of the bill’s sponsors are also members of the committee.

Considered by House Committee

H.R. 850, a bill to facilitate a proposed project in the Lower St. Croix Wild and Scenic River – Introduced by Rep. Michelle Bachmann (R-MN) the bill would facilitate construction of a new bridge over a federally protected portion of the lower St. Croix River. The bill would also overturn a National Park Service decision to protect a national scenic riverway in Minnesota. The House Natural Resources Committee held a hearing on the measure May 4 where it was considered among a host of public lands commemoration and designation bills.

Approved by House Committee

H.R. 1425, the Creating Jobs Through Small Business Innovation Act of 2011 – Introduced by Rep. Renee Ellmers (R-NC), the bill would reauthorize the Small Business Innovation Research (SBIR) and Small Business Technology Transfer (STTR) programs through fiscal 2014. The programs are intended to increase the role of small businesses in federal research and development. The Science, Space and Technology Committee approved the bill May 4. The bill currently has 11 bipartisan cosponsors, including Chairman Ralph Hall (R-TX) and Ranking Member Eddie Bernice Johnson (D-TX).

Both the SBIR and STTR programs are considered “revenue neutral,” because the programs are funded from amounts set aside from existing research and development budgets at participating agencies. An amendment was adopted by Rep. Luján (D-NM) to direct the National Academy of Sciences to conduct a study of the success of the STTR program at stimulating innovation and promoting technology transfer.  

Passed by the House

H.R. 1230, the Restarting American Offshore Leasing Now Act – Introduced by House Natural Resources Committee Chairman Doc Hastings (R-WA), the bill requires the Secretary of the Interior to conduct oil and natural gas lease sales in the Gulf of Mexico and offshore Virginia that have been delayed or cancelled by the Obama Administration. The bill passed May 5 by a vote of 266-149 with 33 Democrats supporting the bill. Reps. Walter Jones (NC) and Ros-Lehtinen (FL) were the only two Republicans to vote no. 

Rep. Rush Holt (D-NJ) offered an amendment to block a provision in the bill that deems environmental and safety reviews conducted before the 2010 Gulf oil spill are sufficient for future leasing. It failed by a vote of 174-240 with eight Republicans supporting the amendment and 14 Democrats voting against it.

Rep. Gerry Connolly (D-VA) offered an amendment to ensure that a lease sale off the coast of Virginia does not interfere with offshore operations by the Defense Department. It failed by a vote of 176-240 with five Republicans supporting the amendment and nine Democrats voting against it.

Introduced in the Senate

S. 892, a bill to establish the Department of Energy and the Environment – Introduced May 5 by Senator Richard Burr (R-NC), a member of the Senate Energy and Natural Resources Committee, the bill would merge the Department of Energy and the Environmental Protection Agency into a single federal agency. The bill has 15 original cosponsors–all Republicans–and has been referred the Senate Committee on Homeland Security and Government Affairs.

S. 898, theSafe Treatment of Polluted Stormwater Runoff (STOPS Runoff) Act –Introduced May 5 by Senator Ben Cardin (D-MD), the bill directs the Secretary of Transportation to establish a comprehensive program to prevent, control and treat polluted stormwater runoff from federally funded highways and roads. The bill has been referred to the Environment and Public Works Committee on which Sen. Cardin serves.

S. 899, the Nutria Eradication and Control Act – Introduced May 5 by Sen. Cardin (D-MD), the bill would authorize funding over five years to  expand efforts in Maryland and Louisiana to eradicate the rodent, which is responsible for devastating wetlands in coastal areas. The bill would also initiate programs to control the fast breeding nutria in Delaware, Virginia, Oregon, North Carolina, and the state of Washington. The bill has been referred to the Environment and Public Works Committee.

Approved by Senate Committee

S. 350, Environmental Crimes Enforcement Act – Introduced by Senate Judiciary Committee Chairman Patrick Leahy (D-VT), the bill would institute criminal penalties for Clean Water Act violations by asking the US Sentencing Commission to raise sentencing guidelines for environmental crimes. The legislation would also make restitution mandatory for criminal violations of the Clean Water Act. The bill was marked up May 5 by the Senate Judiciary Committee.

During a May 5 “executive session” of the Commerce, Science and Transportation Committee, the following bills were reported:

S. 46, the Coral Reef Conservation Amendments Act of 2011 – Introduced by Sen. Daniel Inouye (D-HI), the bill reauthorizes a law to preserve coral reefs and directs the Secretary of Commerce create a new national coral reef ecosystem action strategy.

S. 52, the International Fisheries Stewardship and Enforcement Act – Introduced by Sen. Inouye, the bill directs the Secretary of Commerce to establish an International Fisheries Enforcement Program in the Office of Law Enforcement of the National Marine Fisheries Service to investigate illegal or unregulated fishing activity.

S. 485, the Thunder Bay National Marine Sanctuary and Underwater Preserve Boundary Modification Act – Introduced by Sen. Carl Levin (D-MI), the bill would expand the boundaries of the Thunder Bay National Marine Sanctuary in Lake Huron.

S. 646, the Natural Hazards Risk Reduction Act – Introduced by Sens. Barbara Boxer (D-CA) and Diane Feinstein (D-CA) the bill would reauthorize federal programs aimed at reducing earthquake and windstorm damage.

S. 692, the National Hurricane Research Initiative Act – Introduced by Sen. Bill Nelson (D-FL), the bill would establish a national research program to improve hurricane preparedness.

Sources: Department of Interior, Environment and Energy Daily, E&E News PM, the Environmental Protection Agency, Land Letter, Greenwire, the Hill, House Natural Resources Committee, House Science, Space and Technology Committee, House Transportation and Infrastructure Committee, POLITICO