Policy News: October 10, 2022

In this issue:

Supreme Court Hears Sackett v. EPA, Ruling Could Impact the Definition of “Waters of the U.S.”
ESA and other scientific societies file brief arguing that the interpretation of the Clean Water Act is inherently founded on science.

Congress passes a deal to keep the government funded through Dec. 16.

Executive Branch
Department of Energy requires grant applicants to submit Promoting Inclusive and Equitable Research Plans.

EPA determines that most Chesapeake Bay watershed states are not on track to meet 2025 pollution reduction commitments.

State Department names first special envoy for biodiversity.

Scientific Community
NSF announces new division director for the Division of Environmental Biology.

Federal Register opportunities

Supreme Court Hears Sackett v. EPA case, Ruling Could Impact the Definition of “Waters of U.S.”

On the first day of the Supreme Court’s new term, justices heard arguments in the Sackett v. EPA case. In this case, Chantell and Michael Sackett sought a CWA Section 404 permit to develop wetlands on their Idaho property that was denied. The Sacketts are represented by the conservative Pacific Legal Foundation and backed by business and agricultural groups.

The Supreme Court failed to reach a consensus in the 2006 Rapanos v. United States case and created two legal tests for determining the applicability of the Clean Water Act – Justice Anthony M. Kennedy’s “significant nexus” test and the Justice Antonin Scalia’s “continuous surface connection” test. The significant nexus test determines that the Clean Water Act applies if wetlands have a “significant nexus” to regulated waters. The Ninth Circuit Court of Appeals used Kennedy’s “significant nexus” test when they sided with the EPA in a 2021 ruling in this case.

Several Supreme Court Justices, including justices appointed by Republican presidents, expressed skepticism that the court could significantly limit the applicability of the Clean Water Act. The court may not issue a final ruling until summer 2023.

Lawyers for the government shared the Biden administration expects to issue a new Clean Water Act proposed rule by the end of the year.

Last summer, twelve scientific societies, including ESA and the members of the Consortium of Aquatic Science Societies, filed an amici curiae (friends of the court) brief with the US Supreme Court in this case. The scientific societies’ brief argues that the Clean Water Act’s mandate to restore and maintain the chemical, physical, and biological integrity of the nation’s waters is inherently founded on science and thus can only be achieved through the consideration of science. Meanwhile, the Sackett’s proposed framework rejects hydrological reality, ignoring the science behind the ways in which wetlands and streams affect traditional navigable waters.

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Appropriations: Congress passed a continuing resolution keeping the government open until Dec. 16. The bill largely keeps government programs funded at their fiscal year 2022 levels. Sen. Joe Manchin (D-WV) ultimately withdrew his energy-permitting reform proposal from the continuing resolution, after both Republicans and progressives opposed the legislation. Congress is now in recess until after the midterm elections.

Legislative Updates

  • The Senate Homeland Security and Governmental Affairs Committee voted to advance the National Climate Adaptation and Resilience Strategy Act (S. 3531). This bill creates a chief climate resilience officer position in the White House, who would be charged with coordinating government wide climate adaptation and resilience efforts. Sens. Chris Coons (D-DE) is the lead sponsor with bipartisan support from four Democratic co-sponsors and five Republican co-sponsors.
  • David Joyce (R-OH) introduced a bill (H.R. 8965) that would reauthorize existing control of aquatic plant growths and invasive species law through fiscal year 2028. The bill would also increase authorized funding for invasive species partnerships funding level from $50 million to $75 million. It would also add hydrilla to the list of prioritized control or eradication projects and explicitly includes the Lake Erie Basin and Ohio River Basin as listed areas under the invasive species partnerships section.
  • Senate Foreign Relations Committee Chairman Bob Menendez (D-NJ) and Sen. Mike Braun (R-IN) introduced the America Mitigating and Achieving Zero-emissions Originating from Nature for the 21st Century Act (AMAZON21 Act, S. 5019). This legislation authorizes $4.5 billion over four years for a program to support carbon sequestration and mitigation projects in developing countries. The bill also authorizes the State Department to enter agreements to finance forest conservation projects, providing financial incentives for mitigating carbon releases. House Majority Leader Steny Hoyer (D-MD) introduced similar legislation (H.R. 5830) last year.
  • Veronica Escobar (D-TX) introduced a bill (H.R. 9026) creating an EPA grant program for state and local governments to develop climate adaptation programs.
  • Ron Kind (D-WI) and Maria Salazar (R-FL) introduced legislation (H.R. 9135) reauthorizing the Neotropical Migratory Bird Conservation Act through FY 2027 and increasing the authorized funding for the program from $20 million in FY 2023 to FY 2027 $25 million in FY 2027. The Neotropical Migratory Bird Conservation Act provides competitive grants for bird habitat conservation, research and monitoring and community outreach and education.

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Executive Branch

White House: The Office of Science and Technology Policy and the Council on Environmental Quality are requesting input to inform the development of a U.S. Ocean Climate Action Plan. This plan will help guide and coordinate actions by the federal government and civil society to address ocean, coastal, and Great Lakes-based climate mitigation and adaptation solutions. Comments are due by Nov. 18, 2022.

White House: The National Science and Technology Council issued a report about international science and technology cooperation. The report notes that the United States remains a global leader in science and technology, but competitors are catching up and recommends ways that the U.S. can improve its science diplomacy efforts. The report recommends that the federal government should consider developing longer-term approaches to funding international collaborative science to compete with programs sponsored by China and the European Union and mechanisms to support exchange visitor programs with Historically Black Colleges and Universities and Minority Serving Institutions.

White House: Over 20 federal agencies released their first annual climate adaptation progress reports, demonstrating the agency’s progress in implementing the climate adaptation plans they adopted in October 2021. The climate adaptation plans and progress reports were created a result of a climate executive order issued by President Joe Biden in February 2021. For example, the Interior Department touted in its report that it funded 125 climate adaptation and ecosystem reliance projects and related a Planning for a Changing Climate guide for National Park Service planners and managers.

Energy Department: The Office of Science announced that beginning in fiscal year 2023, all researchers applying to funding opportunity announcements from the Office of Science and the National Laboratories must submit a Promoting Inclusive and Equitable Research (PIER) Plan. These plans will describe how potential grantees will incorporate activities to promote diversity, equity, inclusion and accessibility in their research projects and will be considered in the merit review of grant applications.

USFWS: The agency proposed listing the San Francisco Bay Delta distinct population segment of longfin smelt (Spirinchus thaleichthys) as an endangered species. The proposed rule finds that the freshwater fish species is threatened by agricultural water use in the region and dams. This rule reverses the policy of previous administrations – in 2012, USFWS determined that listing the distinct population segment was “warranted but precluded” by higher priority actions. In October 2019, the agency deprioritized listing the species, citing state conservation efforts.

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States and Tribes


State Department: Secretary of State Anthony Blinken named Monica Medina as the United States’ first Special Envoy for Biodiversity and Water Resources. Medina currently serves as the assistant secretary of State for oceans and international environmental and scientific affairs and will continue to serve in that role in additional to her new responsibilities. This announcement comes ahead of the Convention on Biological Diversity Conference of Parties (COP15) in December in Montreal. Medina worked for NOAA during the Obama and Clinton administrations and published a sustainability newsletter, Our Daily Planet.

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Scientific Community

NSF: During a recent Biological Science Advisory Committee meeting, NSF announced that Dr. Allen J. Moore will start as the new division director for the Division of Environmental Biology Oct. 11. Moore is a distinguished research professor in the department of entomology at the University of Georgia and the associate deal for research in the College of Agricultural and Environmental Sciences. He replaces Stephanie Hampton, who finished a rotation at NSF earlier this year.

BIO Deputy Assistant Director Simon Malcomber will serve as the BIO Directorate’s Acting Assistant Director as NSF searched for a permanent assistant director to replace Joanne Tornow, who retired at the end of September.

FAS: The Day One project, in collaboration with Conservation X Labs, COMPASS, and the California Council on Science and Technology, is seeking policy ideas to improve how we live with wildfire. The Federation of American Scientists (FAS) will synthesize the recommendations that it receives and provide the recommendation to the interagency Wildland Fire Mitigation and Management Commission. FAS and its partners are seeking ideas about integrating the science of climate change into wildland fire policy and Indigenous knowledge on prescribed burning. Submit your idea to the policy accelerator here.

The Day One project is also seeking bold, science-based ideas for the 118th Congress. Submit an idea here.

NASEM: A new report recommends that United States should shift from its approach to research security from protecting specific technologies from access by competitor nations to a risk-management approach that protects the United States’ own capacity to innovate. The country should strive to maximize the amount of work that can be appropriately performed in an open research environment. However, the government should also establish interagency process is needed to identify and assess threats or vulnerabilities of strategic significance to U.S. technological leadership and other national interests, to develop strategies for managing those risks, and to oversee the execution of those strategies.

OTS: The Organization for Tropical Studies’ Environmental Science and Policy Program will offer two upcoming courses about major challenges – one focused on climate change and one on about water. Climate Change will be taught in Spanish and will run from Nov. 14 to 21, 2022. Water Resources will be taught in English and will run from Dec. 3 to 10, 2022. Applications are due Oct. 14.

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Register to Vote and Request an Absentee Ballot

The midterm elections are happening this November. On a national level, all seats in the House of Representatives and a third of the seats in the Senate will be contested. Several state governorships and many other state and local elections will also be contested. Be sure you are registered to vote in time to participate! Learn more about voting policies and rights in your state and register to vote at Rock the Vote, a nonprofit dedicated to engaging young people in politics.

Voting procedures and requirements for requesting an absentee ballot during the coronavirus pandemic vary by state. Visit your state board of elections website or Vote.org for deadlines and to request a ballot.

ESA Correspondence to Policymakers

View more letters and testimony from ESA here.

Federal Register Opportunities

Upcoming Public Meetings:

Opportunities for Public Comment and Nominations:

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

ESA’s policy activities work to infuse ecological knowledge into national policy decisions through activities such as policy statements, Capitol Hill briefings, Congressional Visits Days, and coalition involvement. Policy News Updates are bi-monthly summaries of major environmental and science policy news. They are produced by the Public Affairs Office of the Ecological Society of America.

Send questions or comments to Alison Mize, director of public affairs, Alison@nullesa.org or Nicole Zimmerman, public affairs manager, Nicole@nullesa.org

Visit the ESA website to learn more about our activities and membership.