Policy News: January 27, 2020

In This Issue:

White House Finalizes “Waters of The U.S.”  rule, removing protections for wetland and streams
Six things to know about the new regulation.

Congress
House Natural Resources Committee advances Migratory Bird Protection Act.

Executive Branch
EPA’s Science Advisory Board reviews “Transparency in Science” rule.

Courts
Ninth Circuit Court of Appeals dismisses youth climate case.

States
Florida Governor Ron DeSantis (R) announces plan to purchase 20,000 acres in the Everglades.

International
U.N. human rights body affirms rights of climate change refuges.

Scientific Community
National Science Board releases 2020 Science and Engineering Indicators report.

Opportunities to Get Involved
Federal Register opportunities.

ESA In the News
View an up-to-date list of ESA’s media coverage.

White House Finalizes “Waters of the U.S.” rule, removing protections for wetlands and streams


The Environmental Protection Agency (EPA) released a final definition of the “Waters of the U.S.”(WOTUS), replacing the Obama administration’s 2015 Clean Water Rule.

The final rule, named the “Navigable Waters Protection Rule,” is largely similar to the proposed rule that the EPA released last year. The rule removes protections for ephemeral streams, which it defines as streams that are often dry. These streams account for more than 18% of waterways in the U.S and are more commonly found in the arid parts of the country. The new regulation will also remove protections for wetlands that do not have surface connections to intermittent or perennial streams. More than half of the country’s wetlands – 51% – fall into this category.

Shortly after the announcement, the EPA’s Science Advisory Board approved a letter denouncing the new WOTUS definition, writing that the rule “decreases protection for our nation’s waters and does not provide a scientific basis in support of its consistency with the objective of restoring and maintaining ‘the chemical, physical and biological integrity’ of these waters.”

The watchdog group Public Employees for Environmental Responsibility filed a complaint with the EPA Inspector General and the agency’s scientific integrity officer on behalf of current and former EPA employees. The complaint alleges that top political appointees violated agency policies when it prohibited career employees from submitting formal comments on the rule and instructed employees to respond to comment from “a policy or legal stance,” instead of from a scientific viewpoint.

ESA and the Consortium of Aquatic Science Societies have actively supported the 2015 Clean Water Rule rule and opposed the administration’s rollback of the rule, citing the 2015 rule’s strong basis in the peer-reviewed science. In 2017, ESA joined the Society of Wetland Scientists, American Fisheries Society, American Institute of Biological Sciences, Phycological Society of America, Society for Ecological Restoration and Society for Freshwater Science to endorse a scientists’ Amici Curiae Brief in support of the 2015 clean water rule.

Trump erodes water protections: 6 things to know  by Annie Snider, PoliticoPro, 1/23/2020

The Trump administration Thursday signed its long-promised regulation to remove millions of miles of streams and roughly half the country’s wetlands from federal protection, the largest rollback of the Clean Water Act since the modern law was passed in 1972.

The move delivers a major win for the agriculture, home-building, mining, and oil and gas industries, which have for decades sought to shrink the scope of the water law that requires them to obtain permits to discharge pollution into waterways or fill in wetlands, and imposes fines for oil spills into protected waterways.

Those industries had fiercely fought an Obama-era regulation that cemented broad protections for headwater streams and certain wetlands. President Donald Trump, whose golf courses and other businesses had fought with regulators over Clean Water Act permits, has lambasted that rule as “disastrous,” and his administration repealed it last year.

EPA Administrator Andrew Wheeler said the new rule “strikes the proper balance between Washington and the states in managing land and water resources while protecting our nation’s navigable waters, and it does so within the authority Congress provided.”

The new regulation, called The Navigable Waters Protection Rule, replaces the previous definition of protected waterways, which has been on the books for more than 30 years, with a vastly narrower one. Business groups and conservative lawmakers quickly praised the new version from the EPA.

“Today’s announcement brings us a step closer to clean water regulations that are clear and consistent,” Marty Durbin, head of U.S. Chamber of Commerce’s Global Energy Institute, said in a statement. “The new rule distinguishes between waters that are regulated by the federal government and those that are regulated by the states, making it easier for businesses, states and local governments to understand their obligations.”

Green groups warned the new rule would reverse decades of advances in cleaning up the nation’s waters, and pledged to sue to block the new rule.

“This sickening gift to polluters will allow wetlands, streams and rivers across a vast stretch of America to be obliterated with pollution,” said Brett Hartl, government affairs director at the Center for Biological Diversity. “Destroying half of our nation’s streams and wetlands will be one of Trump’s ugliest legacies.”

Here are six things to know about the new rule:

It goes beyond overturning Obama-era protections to erasing protections that have been in place for decades: The Trump administration has made a point of rolling back environmental rules put in place by its predecessor, accusing the Obama administration of federal overreach. But the new regulation goes much beyond repealing the Obama-era rule, unwinding the previous rules that have been in place to protect headwater streams and wetlands since the 1970s and ’80s.

“President Trump’s administration wants to make our waters burn again,” Earthjustice attorney Janette Brimmer said in a statement, referring to the 1969 fire on the Cuyahoga River in Cleveland that served as a major impetus for passing the Clean Water Act. “This all-out assault on basic safeguards will send our country back to the days when corporate polluters could dump whatever sludge or slime they wished into the streams and wetlands that often connect to the water we drink.”

It drew complaints from EPA’s own advisers: The Trump administration finalized the rule despite concerns raised by EPA’s outside scientific advisers, who issued a draft report in late December that said the proposed version of the rule was “in conflict with established science … and the objectives of the Clean Water Act.” The criticism was particularly notable given that the majority of the board members were handpicked by the Trump administration.

When the Obama administration issued its more expansive rule in 2015, it did so based on a massive scientific report that documented the importance of small streams to the health of downstream rivers and bays. In overturning that rule and issuing a far narrower one that would remove federal protections for waterways that don’t flow regularly and wetlands that don’t have an immediate surface water connection to larger waterways, the Trump administration has argued it’s a matter of policy rather than of science. “This isn’t about what’s an important water body. All water is important. This is about what waters Congress intended the agency to regulate,” a senior EPA official said on a call with reporters Thursday.

Half the country’s wetlands could lose protection: Wetlands, the in-between zone separating water and land, serve a crucial role in soaking up flood waters, filtering pollution and providing habitat to fish and wildlife. Despite a goal by the Reagan administration to have “no net loss” of wetlands, the U.S. has drained or filled in the lion’s share of its marshes and bogs, and is continuing on a downward trend.

The new rule lifts federal protections for roughly half of the country’s wetlands, according to the agency’s own internal estimates. Environmental groups say this would surely accelerate the trend of lost wetlands at a time when the changing climate makes their benefits all the more important.

Dry, western states will see the biggest impact: Waterways in arid regions of the country, particularly in the West, are likely to be among those most affected by the new rule, which removes federal protections for streams that flow only after rainfall. According to EPA, as much as 94 percent of Arizona’s waterways could lose Clean Water Act protection under the regulation, as well as 89 percent of Nevada’s.

The Trump administration argues that just because a waterway isn’t federally regulated doesn’t mean it’s not protected, since states can still set more expansive protections. “Many states already have a robust network of regulations that protect their state’s waterways,” Wheeler told reporters. But many states, including Arizona, have laws on the books that prevent them from regulating more stringently than the federal government, and states have been cutting the budgets for their environmental agencies.

Après-WOTUS, the deluge of lawsuits: The new rule will set off the latest fight in a decades-long legal brawl over the scope of the Clean Water Act, which intensified following a muddled Supreme Court decision in 2006. With environmental groups already vowing to sue, the new Trump rule will likely become quickly entangled in litigation, much as its Obama-era predecessor was.

The water law is aimed at cleaning up “navigable waters” like the Mississippi River and the Chesapeake Bay, but it is widely recognized that those can’t be protected without also restricting pollution into the streams and creeks that flow into them, as well as the wetlands that buffer them from runoff. But how far upstream the law’s protections reach has been a source of heated controversy.

In 2006, the Supreme Court issued a splintered decision in a case involving a patch of Michigan wetlands slated for development. The court’s four conservative justices, led by the late Justice Antonin Scalia, backed a narrow approach to federal jurisdiction, while the court’s four liberal justices endorsed broad federal authority. Justice Anthony Kennedy, who retired from the bench in 2018, joined the conservatives but issued his own, stand-alone opinion that set a more inclusive standard that gave federal protection to any streams and wetlands that had a “significant nexus” to navigable waters.

Federal appeals courts have found Kennedy’s opinion to be the guiding one, but barely a month after taking office, Trump issued an executive order directing EPA and the Army Corps of Engineers, which issues certain Clean Water Act permits, to hew to Scalia’s opinion in drafting a new definition of which waterways should be protected.

Expect confusion on the ground: Legal experts say the Trump rule is likely to be placed on hold by federal courts in at least some states, if not nationwide, as the litigation works its way through the courts. In the meantime, developers and other industries will have to decide how much of a risk they’re willing to take.

While the Trump administration rule will technically allow polluters to impact many streams and wetlands without permits, Vermont Law School professor Patrick Parenteau said it’ll be a legal gamble for them to do so, given the legal uncertainty and the Clean Water Act’s hefty financial penalties for damaging protected waterways without a permit. Companies will have to ask themselves: “How much money is at stake and what happens if you guess wrong?” he said.

Kelsey Tamborrino contributed to this report.

See also: California will be hit hard as Trump administration weakens clean water protections – Los Angeles Times

Congress


House Natural Resources Committee: The full committee voted to advance Rep. Alan Lowenthal’s Migratory Bird Protection Act (H.R. 5552). The bill would require the U.S. Fish and Wildlife Service to create a permitting program for the ‘incidental take,’ or accidental killing of migratory birds during commercial activities. This legislation is in response to a 2017 legal memo from the Department of the Interior Solicitor General that concluded that companies are not liable for the incidental take of birds. Before this memo, previous administrations fined companies for incidental take – for example, BP paid a $100 million fine under the Migratory Bird Treaty Act after the Deepwater Horizon spill.

House Congressional Western Caucus:Members formally introduced and announced a 17-bill package of legislative reforms to the Endangered Species Act (ESA). The package includes a bill requiring federal agencies to make scientific data used in endangered species listing decisions publicly available and bills codifying changes to the ESA regulations finalized by the Trump administration in August 2019. The Congressional Western Caucus released a draft legislative package, comprised of largely identical bills, in fall 2019 and introduced another similar group of bills during the 115thCongress in summer 2018.

House Natural Resources Committee Chairman Raul Grijalva (D-AZ) said that it is unlikely that the Committee will hold hearings for these bills and noted that Committee Democrats are planning legislation to counter ‘attacks’ on the ESA from congressional Republicans and the administration. On Jan. 29, the full Committee will consider Grijalva’s Protect America’s Wildlife and Fish In Need of Conservation Act (H.R. 4348) which would reverse the Trump administration’s 2019 changes to the ESA regulations.

House Science Committee: Space and Aeronautics Subcommittee Chairwoman Kendra Horn (D-OK) introduced legislation reauthorizing NASA’s activities (H.R. 5666). The Senate Commerce, Science and Transportation approved NASA authorization legislation (S. 2800) in November 2019.

Executive Branch


White House: The Office of Science and Technology Policy issued a request for comments from the scientific community on a “draft set of desirable characteristics of data repositories used to locate, manage, share, and use data resulting from federally funded research.” The draft set of characteristics includes long term sustainability, free and easy access and quality assurance. Comments should be submitted by March 3, 2020.

Interior Department: Secretary David Bernhardt signed a record of decision, allowing TC Energy to construct the KeystoneXL pipeline on 44 miles of public lands in Montana. The project’s overall fate is still unclear due to on-going legal challenges. In December 2019, a federal judge determined that the Rosebud Sioux and Fort Belknap Indian tribes made “credible claims” that the pipeline’s construction would violate their treaty rights.

BLM: The agency announced that it is starting the process to change its grazing regulations, with the stated goals of addressing the Government Accountability Office’s recommendations addressing unauthorized grazing on public lands, improving permitting efficiency and modernizing regulations. The Bureau of Land Management’s most recent attempt to modify its grazing regulations was struck down by the courts in 2006. The BLM controls 18,000 livestock grazing permits and leases, which allow grazing on 155 million acres of public lands across the western U.S. The agency is accepting scoping comments through Feb. 28, 2020, and holding four public meetings about the project throughout February in Montana, Nevada, New Mexico and Wyoming.

EPA: The agency’s Science Advisory Board (SAB) declined to approve a draft report on the proposed “Transparency in Science” rule during a series of teleconference meetings earlier this month, with several members objecting to parts of the draft. The draft document was critical of the proposed rule, writing that “some additional requirements of the Proposed Rule may not add transparency, and even may make some kinds of research more difficult.” The SAB instead agreed to revise the report and revisit it at a later date.

NOAA: Scientists in NOAA’s Earth System Research Laboratory received permission and funding to explore two geoengineering or ‘climate intervention’ techniques to cool the earth in response to climate change. One approach would involve injecting sulfur dioxide or another, similar aerosol into the stratosphere to block some sunlight. In the other approach, specialized ships would create low-lying clouds to shade the oceans. Research on both techniques are recommended in an upcoming National Academies Report, “Climate Intervention Strategies that Reflect Sunlight to Cool Earth.”

Courts


Climate: A panel of judges on the ninth circuit court of appeals dismissed the “kid’s climate case,” also known as Juliana v. United States. In this case, 21 young Americans, backed by Our Children’s Trust, sued the U.S. federal government in 2015 for insufficiently addressing climate change and violating their “fundamental constitutional rights to freedom from deprivation of life, liberty and property.” The panel of judges acknowledged the “increasingly rapid” pace of climate change, but it ruled that the youth do not have legal standing to sue. Our Children’s Trust lawyers now plan to appeal the case to U.S. Court of Appeals for the 9th Circuit. The organization is also actively pursuing several similar cases in state courts across the country. Canadian youth filed a comparable lawsuit in British Columbia in October 2019, arguing that their government’s inaction over climate change infringes on their rights guaranteed in the Canadian Charter of Rights and Freedoms.

Golden Cheeked Warbler: Judges on the Court of Appeals for the 5thCircuit ruled that the U.S. Fish and Wildlife Service (USFWS) acted in an “arbitrary and capricious” manner when it rejected a petition from the Texas General Land Office and conservative groups to remove the golden-cheeked warbler from the list of endangered and threatened species in 2015. USFWS now must reconsider the petition. Golden-cheeked warblers nest in exclusively in central Texas mixed Ashe-juniper and oak woodlands and winter in Mexico and Central America.

California: Attorney General Xavier Beccera (D) sued the Bureau of Land Management, claiming that the agency failed to fully analyze the impacts of reopening over one million acres of land in the state to fracking in an environmental impact statement.

Clean Water Act: The Attorneys General of Montana and Wyoming asked the Supreme Court to overturn the state of Washington’s determination that a proposed coal export facility in the state would harm water quality in the state. Section 401 of the Clean Water Act allows state governments to deny water quality permits. The facility would export coal from Powder River Basin to Asia. The Trump administration has proposed modifying Section 401 Clean Water Act regulations to make it more difficult for coastal states to block fossil fuel exports, but it has not finalized those regulations.

States


Florida: Governor Ron DeSantis (R) announced that the state of Florida reached an agreement to buy 20,000 acres of land in the Everglades, protecting the land from potential oil drilling. A statement from the governor’s offices notes that the area provides habitat for over 60 endangered and threatened species.

International


U.N.: The international body’s Human Rights Committee determined that individuals have a right to seek asylum if their home countries are threatened by climate change, similar to the rights guaranteed to those fleeing war or persecution. Ioane Teitiota, a native of Kiribati, brought the case to the U.N. after New Zealand rejected his application for asylum. In Teitotota’s specific case, the body ruled that New Zealand was not obligated to grant asylum because his home island will not become uninhabitable in the imminent future.

Meanwhile, five Native American tribes from Louisiana and Alaska filed a complaint with the U.N., claiming that the U.S. federal government has failed to protect tribes from being forcibly displaced. All of the tribes live in areas experiencing rapid land loss as a result of climate change.

WEF: Environmental issues took top billing at the World Economic Forum (WEF) in Davos, Switzerland. Before the event, the organization named failure of climate change mitigation and adaption and biodiversity loss as the top long terms risks over the next decade in its annual Global Risk Report. At the event, European Commission President Ursula von der Leyen touted the organization’s one trillion euro “Green Deal” to plan to reach net-zero emissions by 2050. The WEF’s International Business Council unveiled a new accounting framework for corporations to report their progress in meeting the U.N.’s sustainable development goals.

Scientific Community


Fellowships: The North Carolina Sea Grant is accepting applications for the North Carolina STEM policy fellows program. Fellows must be recent graduates of a master’s or doctoral program in STEM or a related discipline from a North Carolina institute of higher education. They will be placed in state government offices for a one year term. For more information, see the North Carolina Sea Grant website.

Science: An editorial by H. Holden Thorp, the editor-in-chief of Science, urges the scientific community to “step out of its labs and support evidence-based decision-making in a much more public way,” citing the EPA’s ‘transparency in science’ rule, which would limit the use of relevant scientific evidence in policymaking.

NSF: The National Science Board released its biennial State of U.S. Science and Engineering Indicators for 2020. The report finds that “increasingly, the United States is seen globally as an important leader rather than the uncontested lead” in science and engineering. Meanwhile, the share of research and development funded by the U.S. federal government has declined since 2000, with the business sector funding and performing the majority of R&D in the U.S. The number of women and underrepresented minorities in the scientific workforce has increased, but these group still remain underrepresented relative to their numbers in the overall workforce and the population as a whole.

Over the past several months, the National Science Board released a series of nine thematic reports covering topics from elementary and secondary science and mathematics education to trends in publications outputs.

Wellcome Trust: The UK-based science funder released the results of a survey of 4,000 researchers globally. The results of the survey include that while the vast majority of respondents are proud to work in the research community, only twenty-nine percent felt secure about pursuing a research career. Forty-three percent of respondents said that they have experienced bullying or harassment.

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