October 10, 2018

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Secret Science Hearing: The Senate Environment and Public Works Committee  Subcommittee on Superfund, Waste Management and Regulatory Oversight held a hearing on the Environmental Protection Agency’s (EPA) proposed rule “Strengthening Transparency in Regulatory Science.” The rule is also referred to as the “secret science rule.” If finalized, the rule would prohibit the EPA from using studies in regulatory decisions where the underlying data are not publicly available. Subcommittee Chairman Mike Rounds (R-SD) expressed concerns that the EPA is using “science that supports a predetermined policy outcome.” Rounds is the sponsor of the Senate version of the HONEST Act (S. 1794), the legislative version of the EPA’s transparency rule. Ranking Member Cory Booker (D-NJ) said that the proposed rule was likely to “hinder science-based regulation.” Rush Holt, the CEO of the American Association for the Advancement of Science, testified that the rule is a disguised attempt to loosen regulations.

Before the Committee hearing, ESA submitted a letter to the Environment and Public Works Committee reiterating ESA’s opposition to the secret science rule.

Legislative Updates:

  • The Senate Energy and Natural Resources Committee approved the Land and Water Conservation and Authorization and Funding Act (S. 569), introduced by Sen. Maria Cantwell (D-WA) and Sen. Richard Burr (R-NC). This bill permanently reauthorizes the Land and Water Conservation Fund, which allocates revenues from offshore oil in public lands to grants for federal, state, and local governments to purchase lands for conservation and recreation opportunities. The authorization for the Land and Water Conservation Fund expired Sept. 30, 2018. The House Natural Resources Committee approved similar legislation in September.
  • The Senate Energy and Natural Resources Committee also approved the Restore Our Parks Act (S. 3172), co-sponsored by Sen. Rob Portman (R-OH) and Sen. Mark Warner (D-VA). The bill allocates revenue from energy development on federal lands into a fund for infrastructure improvements in national parks.
  • Rep. Steven Palazzo (R-MS) and Rep. Collin Peterson (D-MN) introduced the Advancing the Quality and Understanding of American Aquaculture or AQUAA Act (H.R. 6966). Introduced shortly after a federal judge ruled that NOAA does not have the legal authority to regulate aquaculture in federal waters, this bill would authorize NOAA to permit aquaculture projects and establish an Office of Marine Aquaculture within NOAA. There is a senate companion bill S. 3138 that Sen. Roger Wicker (R-MS) and Sen. Marco Rubio (R-FL) introduced in June 2018.
  • Rep. Carol Shea-Porter (D-NH) has reintroduced legislation – H.R. 7005– to address wildlife disease that would allow the secretary of the interior to declare a “wildlife emergency” during wildlife disease outbreaks. After Interior declares a wildlife emergency, it would join with state, local and tribal governments to respond. The bill also creates a wildlife disease committee to provide advice on disease management. This is the third time that Rep. Shea-Porter has introduced this legislation since 2010.

Executive Branch

Interior Department: Secret Science: Deputy Interior Secretary David Bernhardt signed an order entitled “Promoting Open Science” that encourages Interior employees to heavily prioritize “publicly available, reproducible, peer-reviewed science.” Employees must explain if scientific conclusions are not supported by publicly available data, have not been peer-reviewed or are not reproducible.

Interior Department: Yellowstone Mining: Interior Secretary Ryan Zinke finalized a mining ban on 30,000 acres of the national forest land in Montana, immediately north of the only year-round entrance to Yellowstone National Park. The Obama administration originally proposed this ban in 2016. The Senate Energy and Natural Resources Committee and the House Natural Resources Committee have both sponsored legislation making this ban permanent.

USGS: The National Academies of Science, Engineering and Medicine released a water research priorities and recommendations report for the USGS Water Mission Area. The report identifies priority research questions for the USGS about water quality and quantity, climate change and human activities impacts on water, and improving water accounting and water-related risk management. The authors also provide recommendations for the Water Mission Area on how to address these topics.

USFWS: Razorback Sucker: The agency announced in the Federal Register that it will upgrade the status of the razorback sucker from an endangered species to threatened. The Razorback sucker is only found in the Colorado River and in the 1980s, the fish species had dwindled to around 100 individuals. Today, there are over 55,000 razorback suckers.

USFWS: New Proposed Threatened Species: The agency is proposing to list four new species as threatened under the Endangered Species Act. All of these proposed rules include a section 4(d) rule, which would allow incidental take of the species under certain circumstances. The following species are proposed for protections:

  • The eastern black rail: This is a bird that is found in saltwater, brackish and freshwater marshes, mostly along the East Coast and the gulf coast in the U.S. In the proposed rule, UFSWS notes that the species is threatened by sea level rise.
  • The blackcapped petrel: This seabird nests in Hispanola and forages off the U.S. east coast. USFWS declines to designate critical habitat for this species because it does not nest or breed in the U.S and because its foraging habitat is widely distributed, and there are “no habitat-based threats” within its foraging range.
  • Slenderclaw crayfish: This freshwater crustacean is found in the Tennessee River Basin in Alabama. USFWS also proposes designating 78 miles of river as critical habitat for the crayfish.
  • Pacific marten: USFWS has proposed listing a genetically districtpopulation (distinct population segment) of Pacific marten, a small forest carnivore, found on the California and Oregon coast.

USFWS is accepting public comments on all of these proposed listings in the Federal Register through Dec. 10, 2018.

USFS: The U.S. Forest Service released a draft environmental impact statement (EIS) and proposed amendments to land management plans for national forests within the sage grouse’s range in Colorado, Idaho, Nevada, Utah and Wyoming. This draft EIS comes after Bureau of Land Management (BLM) proposed modifying its 2015 sage grouse conservation plans last summer. Similar to the BLM’s modified plans, the Forest Service’s proposed preferred alternative removes the sage grouse focal area designation in conservation plans. These areas will still be protected as priority habitat management area – but the preferred alternative reduces the total number of acres designed as priority habitat management areas by 330,000 acres.

NHTSA: A draft environmental impact statement released by the National Highway Traffic Safety Administration (NHTSA) in support of the Trump administration’s decision to freeze emissions standards for cars and trucks. It concludes that the planet will warm seven degrees by 2100 and that efforts to reduce emissions and slow the speed of climate change are unnecessary because the earth’s fate is “already sealed.”


HFCs Phaseout: The U.S. Supreme Court also declined to review a decision by a lower court that struck down an EPA rule that phased out the use of hydroflurocarbons (HFCs). Environmentalists and two companies that manufacture HFC-replacements had appealed the case to the Supreme Court.

Grand Canyon: The U.S. Supreme Court declined to hear a case brought by mining interest groups challenging the Interior Department’s 2012 ban on uranium mining near the Grand Canyon. With this decision, an appeals court decision upholding the mining ban remains in place.

Canyons and Seamounts Monument: A federal judge rejected complaints from fishing groups and upheld former President Obama’s decision to protect the Canyons and Seamounts National Monument off the coast of New England.


Oregon: Governor Kate Brown (D) introduced legislation entitled the Oregon Environmental Protection Act that seeks to counterbalance the Trump administration’s environmental rollbacks. The bill prohibits the state from loosening air and water quality regulations that were in effect before the inauguration of President Trump. Brown is currently running for re-election.


‘Dire’ Report on Climate Change: The International Panel on Climate Change released a new report concluding that absent unprecedented actions to slow greenhouse gas emissions, the atmosphere will warm to 2.7-degrees Fahrenheit above preindustrial levels by 2040. The report finds that the earth is warming faster than previously predicted and a 2.7-degrees F temperature increase will result in widespread flooding, droughts and poverty.

Arctic Fishing: Representatives of nine countries, including the U.S. and Canada, and the EU signed a moratorium prohibiting commercial fishing in the Arctic Ocean. There is currently no commercial fishing in the Arctic, but companies are considering fishing in the area as viable because of ice melt caused by the warming climate that eases ship navigation. The moratorium is in effect for the next five years and the agreement includes a scientific monitoring program to establish a baseline understanding of the Arctic’s marine ecosystem. The results of the monitoring program will be used to determine whether to extend to the moratorium.

Scientific Community

Harrassment Bill: Rep. Eddie Bernice Johnson, ranking member of the House Science, Space and Technology Committee, introduced the Combating Sexual Harassment in Science Act of 2018 (H.R. 7031), which would research efforts to better understand the causes and consequences of sexual harassment affecting individuals in the scientific, technical, engineering, and mathematics workforce, including students and trainees. The legislation, if enacted into law, would establish an interagency working group to coordinate federal science agency efforts to reduce the prevalence of sexual harassment involving grant personnel to be chaired by the Director of the Office of Science and Technology (OSTP). The National Academies would be tasked with updating its ”On Being a Scientist: A Guide to Responsible Conduct in Research,” and reporting its findings to the House Science Committee.

Red Wolf Study: The National Academies of Sciences, Engineering and Medicine will hold two webinars as part of its study of the taxonomic status of the red wolf and the Mexican gray wolf, commissioned by the U.S. Fish and Wildlife Service. One webinar will examine “Criteria for Determining a Subspecies” Oct. 19 and another is titled “Under Species Hybridization.” The recording of the first public meeting on the study is also online.

Federal Register Opportunities

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.