May 29, 2018

Appropriations Bills Include Increased Funding for NSF, DOE and USDA, Cuts to NOAA

The House and Senate appropriations committees continue to release appropriations bills for Fiscal Year (FY) 2019. The bills generally include more funding than requested in the president’s budget and many programs of interest to ESA receive budget increases. This is the beginning of the lengthy congressional appropriations process to pass the FY 2019 bills that fund the federal government from Oct. 1, 2018-Sept. 30, 2019. The appropriations bills will likely change before they pass the full House and Senate and become law, but they are important because they signal the intent of Congress.

In response to the House budget bills, White House Office of Management and Budget Director Mick Mulvaney sent a series of letters to House Appropriations Chairman Rodney Frelinghuysen (R-NJ) pushing back on the committee’s proposed FY 2019 spending bills. Mulvaney supported the committee’s funding levels for the Agriculture and Food Research Initiative (AFRI), but he criticized funding increases for the Department of Energy’s Office of Science and the National Science Foundation.

EPA, Department of the Interior and the Forest Service

The House Interior Appropriations Subcommittee released its draft Interior, Environment and Related Agencies appropriations bill May 14. The Senate Appropriations Committee will release its FY 2019 appropriation bill for the Department of the Interior, the Forest Service and the Environmental Protection Agency during the week of June 11.

The House bill includes $1.2 billion for the U.S. Geological Survey, $19 million more than in FY 2018. The bill includes funding for the Landsat-9 satellite program. The Bureau of Land Management receives $1.4 million, an increase of $55 million above FY 2018 levels, including $60 million for sage grouse conservation programs. The National Park Service is funded at $3.25 billion, $53 million more than in FY 2018, and the U.S. Fish and Wildlife Service’s budget is kept flat at $1.6 billion.

The U.S. Forest Service receives $6.1 billion, an increase of $100 million above FY 2018 levels. This budget includes $3 billion for wildland fire prevention and suppression, $297 million for Forest Sevice Research and Development – a $1 million decrease from FY 2018 – and $19.5 million in new funding to combat pests, diseases and invasive species in forests.

The Environmental Protection Agency’s budget is cut by $100 million to $7.958 billion. The Great Lakes Restoration Initiative also retains funding. The Trump administration has sought to eliminate this program.

The House Interior Appropriations bill also contains policy riders that prohibits the U.S. Fish and Wildlife Service from listing the greater-sage grouse as a threatened or endangered species and require the agency to delist gray wolves within the continental U.S. The bill repeals the Waters of the U.S. (WOTUS) rule and prevents the Bureau of Land Management from euthanizing wild horses and burros. Appropriators also prevent the EPA from regulating the lead content of ammunition and fishing tackle.


The House Appropriations Committee also passed a $62.5 billion Commerce, Justice and Science appropriations bill. This bill covers funding for the National Science Foundation (NSF), National Oceanic Atmospheric Administration (NOAA) and NASA. NSF receives $8.175 billion in total, including $6.85 billion for research and related activities, a five percent increase over FY 2018. NSF’s major research and research construction account receives a 47 percent increase, including $127 million for three new research vessels. The appropriations report notes that NSF should not allocate less than FY 2018 levels to support existing research infrastructure such as academic research vessels and observational networks.

NOAA is funded at $5.2 billion, $751 million less than FY 2018 levels. However, this exceeds the amount requested for NOAA in the president’s FY 2019 budget request of $4.563 billion. The majority of these cuts come from the National Environmental Satellite, Data and Information Service, which is cut by 21 percent and the Office of Marine and Aviation Operations, which receives a 46 percent cut. The National Ocean Service and the National Marine Fisheries Service are both receive one percent cut and the Office of Oceanic and Atmospheric research is cut by 8 percent. The bill cuts funding for NOAA’s climate research program by 38 percent, from $158 million in FY 2018 to $99 million.

NASA receives $21.5 billion, a 4 percent increase. NASA’s earth science program receives $1.9 billion, a 1 percent cut.

Agricultural Research

The House and Senate’s U.S. Department of Agriculture appropriations bills both contain increased funding for agricultural research. In FY 2018, the Agricultural Research Service (ARS) received $1.203 billion. The House bill funds ARS at $1.395 billion and the Senate bill provides $1.301 billion. The National Institute of Food and Agriculture (NIFA) receives $1.446 billion in the House bill and $1.425 billion in the Senate bill. For comparison, NIFA received $1.407 billion in FY 2018. Both the House and Senate bills both increase funding for the Agriculture and Food Research Initiative (AFRI), which received $400 million in FY 2018. The House bill includes $415 million for AFRI and the Senate bill contains $400 million for AFRI.

The Senate bill also prohibits the termination of any ARS programs or laboratories.

Department of Energy

The Senate Energy and Water Appropriations Subcommittee approved its FY 2019 Energy and Water bill May 22. The bill includes $6.65 billion for the Department of Energy’s Office of Science; this is $390 million more funding than in FY 2018 and roughly the same as the House Energy and Water appropriations bill. The Senate bill includes $375 million for the Advanced Research Projects Agency-Energy (ARPA-E). The Trump administration has proposed eliminating ARPA-E, and the House appropriations committee approved $325 million for ARPA-E.

Interior Actions: Migratory Bird Treaty Act Enforcement Undermined by Recent Opinion

According to an opinion recently issued by the Department of Interior, which controls enforcement of the century-old Migratory Bird Treaty Act, such enforcement will now be greatly curtailed. Instead of the long-standing interpretation of strictly prohibiting the take of migratory birds, the new opinion sets a much higher threshold for liability for the killing of birds covered by the act. Historically, simple negligence was actionable. The newly issued opinion states that action under the act will only be taken when actual intent to kill the bird species is shown.

The Migratory Bird Treaty Act (MBTA) was one of the first conservation laws passed in the United States. It celebrates its centennial this year and was part of the beginnings of environmental stewardship in this country. The MBTA was passed to enforce bilateral treaties – with Canada, Mexico, Japan and Russia – and the provisions have been used to reduce as well as prevent gross negligence of bird killings by individuals and companies alike.

From the MBTA language, “[I]t shall be unlawful to hunt, take, capture, kill … by any means whatever … at any time or in any manner, any migratory bird… into a conclusion that the killing of migratory birds violates the act only when “the actor [is] engaged in an activity the object of which was to render an animal subject to human control.”

However, Interior’s latest opinion greatly undermines the basic goals of the MBTA. As reported by The Washington Post, “[T]he Interior Department said, “the take [killing] of birds resulting from an activity is not prohibited by the Migratory Bird Treaty Act when the underlying purpose of that activity is not to take birds.” For example, the guidance said, a person who destroys a structure such as a barn knowing that it is full of baby owls in nests is not liable for killing them. “All that is relevant is that the landowner undertook an action that did not have the killing of barn owls as its purpose,” the opinion said.” Said another way, a person must now specifically intend to kill the animals; they will not be held liable for “incidental take.”

Declining to enforce for incidental take will be very beneficial to corporations, most notably energy companies. Industrial accidents such as the Deepwater Horizon oil spill in the Gulf of Mexico, which harmed more than 82,000 birds, would not face prosecution under the MBTA. Additionally, the MBTA will no longer incentivize industries to work to mitigate preventable bird deaths. As outlined by the Audubon Society, “[O]ver 70 million birds are killed each year by industrial activities and structures, including power lines, communication towers, and improperly sited wind turbines. Uncovered oil field waste pits, where confused birds land thinking the glossy surface is water and are poisoned or drowned in a slow, viscous death, are accountable for the deaths of 500,000 to 1 million birds each year alone.” Without the weight of potential liability, corporations will have little motivation to mitigate the dangers created by their activities.

Although Interior’s new opinion does not change the law per se (only legislative action can bring that about), it could significantly change how the law is enforced. An April 4 letter from the 10 Democratic members of the Senate Environment and Public Works Committee to Interior Secretary Ryan Zinke, argues for continued enforcement of incidental take, stating, “Eliminating agency authority to address incidental take under the MBTA risks reversing the significant progress the nation has made in recovering and maintaining bird populations, ties the hands of the department’s wildlife professionals, and undermines our international obligations.”

On May 24, a coalition of national environmental groups, including American Bird Conservancy, Center for Biological Diversity, Defenders of Wildlife, National Audubon Society, National Wildlife Federation, and the Natural Resources Defense Council, filed litigation, National Audubon Society v. Department of the Interior, in the Southern District of New York challenging the current administration’s move to eliminate longstanding protections for waterfowl, raptors, and songbirds under the Migratory Bird Treaty Act (MBTA).

USFWS Begins ESA Status Review: Species Under Scrutiny

Recently the United States Federal Wildlife Service (USFWS) announced it will begin five-year status reviews of 191 listed species. Every five years of listing, the USFWS assesses the status of species protected by the Endangered Species Act (ESA) to determine if delisting is warranted.

By law, assessments of the deciding factors are made using the best available science. To delist a species, USFWS is required to determine that threats have been eliminated or controlled, based on several factors including: population sizes and trends and the stability of habitat quality and quantity; extent of disease or predation, if the species is subject to overutilization, and control or elimination of threats through existing regulatory mechanisms (usually at the state level). The Service can make four possible recommendations after completing an assessment. It can reclassify a species from threatened to endangered; reclassify a species from endangered to threatened; remove the species from the list or maintain the species’ current classification.

The species under review cross the globe, from Guam to Florida. Species include the Mariana fruit bat (Pteropus mariannus mariannus), the Bermuda petrel (Pterodroma cahow), and the Eastern indigo snake (Drymarchon corais couperi).

The review notice, with a list of all considered species, has been published in the Federal Register. Comments on any of the species being reviewed can be submitted via the addresses listed on the Federal Register website, and should be submitted by July 6, 2018.


NASA’s Carbon Monitoring System: The House Commerce, Justice and Science Appropriations Subcommittee approved an amendment to the subcommittee’s 2019 spending bill that directs NASA to spend $10 million on a “climate monitoring system” studying “biogeochemical processes to better understand the major factors driving short and long-term climate change.” The Trump administration canceled the Carbon Monitoring Systems, a program doing very similar work, earlier in May 2018.

Office of Technology Assessment: A clause in the House appropriations bill for congressional operations directs the Congressional Research Service to assess the need for a separate entity within the legislative branch “charged with the mission of providing nonpartisan advice on issues of science and technology.” This direction comes after the appropriations committee received requests from members of Congress led by Rep. Bill Foster (D-IL) and CEO of the American Association for the Advancement of Science Rush Holt to revive the Office of Technology Assessment (OTA). Until it was defunded in 1995, OTA advised members of Congress on science and technology issues and produced reports for them.

Farm Bill: The House Farm Bill was defeated (198-213) on May 18. The House Freedom Caucus sank the bill and no Democrats voted for it. House Republicans are trying to salvage the bill, which could be back for a vote around June 22. The Forestry Title of the House bill includes a number of new categorical exclusions and other authorities that are designed to increase logging in national forests. Additionally, the House voted on Rep. Don Young’s (R-AK) amendment to the bill to exempt Alaska’s national forests from the Roadless Rule May 17. The amendment passed by a razor thin margin of 208-207. Two Democrats – Rep. Collin Peterson (D-MN) and Rep. Marcy Kaptur (D-OH) – voted for the amendment and 23 Republicans voted against it. The Senate Agriculture Committee is expected to mark up its version of the legislation on June 6, and floor consideration could be soon thereafter. It’s unclear whether the Senate’s bill will include federal forest management provisions similar to those in the House bill. Sen. Murkowski will likely offer an amendment that mirrors Rep. Young’s to exempt Alaska’s national forests from the Roadless Rule – it will require 60 votes to pass. With this timetable, Congress could have two farm bill versions ready for a conference committee in July.

Lacey Act: The House Natural Resources Committee, Subcommittee on Water, Power and Oceans held a hearing on the Lacey Act, the law that allows the federal government to restrict the trade of plants and wildlife to prevent the spread of invasive species. Subcommittee Chairman Doug Lamborn (R-CO) and a representative of the aquaculture industry argued that current version of Lacey Act makes transporting live fish over state lines overly difficult and has resulted in aquaculture farmers facing felony charges. Committee Democrats argued that the law should remain largely the same.

Carbon Capture: The Senate Environment and Public Works Committee passed the Utilizing Significant Emissions with Innovative Technologies Act (USE IT Act, S. 2602) May 22. This bill directs the EPA to support carbon utilization and air capture research and requires the White House Council on Environmental Quality to develop guidance on CO2 pipelines. Environment and Public Works Ranking Member Tom Carper (D-DE) and Sen. Tammy Duckworth (D-IL) became sponsors of the bill after the bill was amended to add environmental protections and public comment periods on CEQ’s guidance on CO2 pipelines.

Department of Energy Bills: The House Science, Space and Technology Committee passed three bills related to the Department of Energy’s science programs. Committee Chairman Lamar Smith (R-TX) and ranking member Eddie Bernice Johnson (D-TX) supported all of the bills. The Department of Energy Science Act and Innovation Act of 2018 (H.R. 5905) authorizes the Office of Science’s activities for FY 2018 and 2019 and allows the Biological and Environmental Research program to model climate change impacts. The ARPA-E Act of 2018 (H.R. 5906) expands ARPA-E’s mission to cover cleanup of nuclear waste sites and requires projects to seek private sector funding before receiving ARPA-E funding. The National Innovation Modernization by Laboratory Empowerment Act (NIMBLE Act, H.R. 5907) gives directors of national laboratories the authority to agreements to approve public-private partnerships of less than one million dollars.

Other legislative updates of interest:

  • The Senate passed the National Volcano Early Warning and Monitoring System Act (S. 346) May 17. This bill directs the U.S. Geological Survey to establish a program to monitor, issue warnings of and protect the American people from volcanic activity and authorizes appropriations to support this program through FY 2027.
  • The House passed its version of the National Defense Authorization Act (H.R. 5515). The bill includes amendments that prevent the U.S. Fish and Wildlife Service from listing the greater sage-grouse and the lesser prairie chicken under the Endangered Species Act for ten years and creates a 30-month time limit for environmental permitting of ‘critical minerals’ mines. The Senate defense authorization bill does not include these provisions.
  • The House Natural Resources Committee approved the Federally Integrated Species Health (FISH) Act (H.R. 3916) May 16. This bill shifts responsibility for managing fish that live in freshwater and the ocean during points of their lifecycle under the Endangered Species Act to the U.S. Fish and Wildlife Service. Currently, USFWS and NOAA’s National Marine Fisheries Service (NMFS) share responsibility for managing these fish.
  • The Every Kid Outdoors Act (H.R. 3186) passed the House Natural Resources Committee. This bill gives fourth-graders and accompanying adults free access to federal public lands and waters.
  • The Sustainable Shark Fisheries Act (S. 2764) passed the Senate Committee on Commerce, Science and Transportation May 22. This bill directs NOAA NMFS to evaluate the fisheries management practices of other shark and ray fishing countries.
  • Water Resources Development Act (H.R. 8) – The House’s water infrastructure bill, introduced by House Transportation and Infrastructure Chairman Bill Schuster (R-PA) and ranking member Peter DeFazio (D-OR), passed the House Transportation and Infrastructure Committee May 23. The bill directs the National Academy of Sciences to study the effects of moving the Army Corps of Engineers Civil Works department out of the Department of Defense. The bill does not contain any changes to the National Environmental Policy Act or the Clean Water Act. The Senate’s companion water infrastructure bill, America’s Water Infrastructure Act (S. 2800) passed its Environment and Public Works Committee May 22.
  • The Wildlife Innovation and Longevity Driver (WILD) Act (H.R. 5585) introduced by Rep. Alan Lowenthal (D-CA) and Rep. Don Young (R-AK), reauthorizes the Multinational Species Conservation Fund, a USFWS program that funds international conservation programs. This bill also expands the Marine Turtle Conservation Act to include and fund tortoise and freshwater turtle conservation programs and creates the Theodore Roosevelt Genius Prize which encourages innovation in wildlife conservation and combating wildlife crime.The Senate’s companion bill (S. 826) passed in fall 2017.

Executive Branch

Nominations: Chris Fall has been nominated to be the director of the Department of Energy’s Office of Science. Fall currently serves as the principal deputy director of DOE’s Advanced Research Projects Agency-Energy (ARPA-E) and has previously worked for the Office of Naval Research and the White House Office of Science and Technology Policy. Fall has a Ph.D. in neuroscience.

Hunting in Alaska: The National Park Service is proposing lifting a 2015 ban on certain hunting practices on national preserve lands in Alaska. The practices include baiting black bears; using dogs to hunt bears; shooting caribou from motor boats; and hunting denning wolves and coyotes, including pups. These practices are legal elsewhere in Alaska, and the Alaska Department of Fish and Game has pushed to allow these practices on federal lands. The National Park Service is accepting comments on this proposal through July 23.

Department of Commerce: Emails obtained by The Washington Post under the Freedom of Information Act show that Commerce Secretary Wilbur Ross allowed the charter for the Advisory Committee for the Sustained National Climate Assessment to expire because the advisory group only contained “one member from industry.” The 15-person advisory committee oversaw the National Climate Assessment (NCA) and aimed to help policymakers and the private sector integrate the NCA’s findings and climate science into planning and decision-making.

Emerald Ash Borer: The Department of Agriculture will soon stop quarantine measures for the emerald ash borer, an invasive beetle that destroys trees. The USDA Animal and Plant Health Inspection Service said that eradication of the beetle is “not possible” and the agency will refocus its efforts on biological controls.

NOAA: NOAA’s National Marine Fisheries Service released its 2017 Status of U.S. Fisheries report to Congress May 17. The report finds that only 9 percent of fish stocks assessed by the agency were overfished and that stocks of three species of west coast groundfish were rebuilt. This finding means that none of the rockfish species on the West Coast are classified “overfished.”

Bears Ears: Documents released under the Freedom of Information Act reveal that Interior Department officials told staff that it would be “virtually impossible” for any public comments regarding Bears Ears National Monument to sway the agency’s decision to reduce the size of the monument. The Interior Department received 2.8 million public comments during Interior Secretary Ryan Zinke’s review of 27 national moments during summer 2017, and in December, President Trump announced plans to shrink Bears Ears National Monument by 85 percent.

Critical Minerals: The U.S. Geological Survey published a list of 35 ‘critical minerals’ that the administration has determined are important to US national security May 18. The U.S. is heavily dependent on imports for most of the minerals. Now, the Commerce Department is tasked with finding ways to reduce reliance on these minerals –  suggestions will likely include loosening environmental permitting requirements.


Washington: Robert Wielgus, the director of the Carnivore Conservation Lab at Washington State University, has agreed to leave the university in exchange for a $300,000 to settle a lawsuit over his academic freedom. Wielgus’ research found that Washington State’s policy of killing wolves that prey on cattle is likely to lead to more cattle predation because it alters the structure of wolf packs. Ranchers disliked Wielgus’ findings and convinced Washington State Legislators to defund his work. Emails released to The Seattle Times show that university administrators complied with the Legislature’s requests because they were concerned about losing funding for a new medical school.

Michigan: The Michigan House of Representatives passed a bill creating an ‘Environmental Rules Committee’ which would oversee the Michigan Department of Environmental Quality. Under the legislation, half of the committee members would represent industry and business interests. Other committee members would represent local governments, environmental groups and the general public. The committee would be responsible for denying or approving the state’s environmental regulations and could reject rules that do not “achieve their purposes in proportion to the burdens they place on individuals and businesses.” The Michigan State Senate previously passed a different version of this bill.

Alaska: Governor Bill Walker’s Climate Action Leadership Team released a draft climate policy plan May 3. The plan includes proposals for the state to obtain 50 percent of its electricity from renewable energy by 2025 with targets to cut the state’s greenhouse gas emissions to 33 percent below 2005 emissions levels by 2025. The full document is online here, and the public can submit comments on the plan here through June 4.


Bi-state Sage-grouse: A district court judge in California overturned the U.S. Fish and Wildlife Service’s 2015 decision not to list bi-state sage-grouse, a distinct population segment of the greater sage-grouse found along the California-Nevada border. USFWS proposed listing the species as threatened under the Endangered Species Act in 2013, but it later reversed this decision in 2015. The judge agreed with environmental groups that USFWS “failed to adequately explain why it reversed course and denied protection,” and that the decision was “arbitrary and capricious.”


Indonesia: The government of Indonesia is proposing strict new laws for foreign scientists conducting research in the country. The draft law requires foreign researchers to submit their raw data to government’s research ministry and that research conducted by foreign researchers must produce “beneficial outputs for Indonesia.” Under the proposed law, researchers who break existing rules, like permit requirements, could face jail time.

Scientific Community

William Bowie Medal: The American Geophysical Union (AGU) reversed it’s 2017 decision to award its highest award, the William Bowie Medal, to seismologist Thomas Jordan of the University of Southern California. AGU Executive Director Christine McEntee said the organization’s board of directors reached this decision after an AGU Ethics Committee investigation into a “conduct-related complaint.”

Federal Register Opportunities

Opportunity for comment: The EPA has extended the comment period for its proposed rule “Strengthening Transparency in Regulatory Science” to August 17, 2018. The EPA will also hold a public hearing on this rule in Washington, DC July 17. ESA submitted a public comment requesting that the agency extend the comment period and issued a press release expressing concern about this proposed rule.

Opportunity to get involved: The National Drinking Water Advisory Council is seeking nominations for members. Nominees will be selected to represent state and local agencies concerned with water hygiene and public water supply (two vacancies); private organizations or groups demonstrating an active interest in the field of water hygiene and public water supply (two vacancies) -of which one such member shall be associated with small, rural public water systems; and the general public (five vacancies). Nominations are due by 5/31.

Public Meetings, many of which are live-streamed:

Opportunities for Public Comment and Nominations:

Visit this page on ESA’s blog for updates on opportunities from the Federal Register, including upcoming meetings and regulations open for public comment.