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EPA, Corps will send WOTUS proposal to OMB
by outdoorwire. 06/18/18 02:05 PM
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by outdoorwire. 06/03/18 06:18 PM
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All About Water
06/18/18 02:05 PM
The effort to craft a new rule defining “waters of the U.S.” will take another step forward today when EPA and the Army Corps of Engineers send a new proposed rule to the Office of Management and Budget for review.

The agencies announced this morning they would transmit the proposal to OMB but offered little in the way of specifics on its substance.

“Farmers, ranchers, landowners, and other stakeholders are counting on EPA to listen to their input when it comes to defining ‘waters of the United States,’” EPA Administrator Scott Pruitt said in a news release. “Today, we are taking an important step toward issuing a new WOTUS definition and answering President Trump’s call to ensure that our waters are kept free from pollution, while promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the federal government and the states under the statutory framework of the Clean Water Act.”

Farm groups such as the American Farm Bureau Federation say the 2015 rule cast an overly broad jurisdictional net and even would regulate puddles, a claim disputed by the previous administration and defenders of the rule such as environmental groups, which have challenged EPA’s attempt to repeal it. The new proposal is expected to interpret EPA's and the Corps' jurisdiction more narrowly.

Don Parrish, senior director for regulatory relations at the Farm Bureau, praised EPA's "diligence in getting the rule over to OMB for interagency review" and said he was looking forward to seeing what's in it. He also said it's critical that EPA and the Corps "finish the job of withdrawing the 2015 rule."

Shortly after taking office, President Trump issued an executive order directing EPA and the Corps to write a new WOTUS rule. The order says EPA and the Corps “shall consider interpreting the term ‘navigable waters’” in the Clean Water Act “in a manner consistent with the opinion of Justice Antonin Scalia in Rapanos v. United States.”

Rapanos was a 4-1-4 Supreme Court decision from 2006 that most courts have interpreted using a standard put forth by Justice Anthony Kennedy, who said in his opinion that “wetlands possess the requisite nexus, and thus come within the statutory phrase ‘navigable waters,’ if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’”

Kennedy concurred with the judgment of the four justices in the plurality, led by Scalia, but disagreed sharply with his reasoning. Scalia said the Clean Water Act "confers jurisdiction only over relatively permanent bodies of water," but most courts have used Kennedy’s test as the standard in WOTUS challenges, citing a previous Supreme Court decision that said in fractured opinions such as Rapanos, courts should look to the position “taken by those (justices) who concurred in the judgment on the narrowest grounds.”

OMB’s Office of Information and Regulatory Affairs coordinates review of proposed rules with other government agencies. OIRA has 90 days to review proposals, but the rulemaking agency or agencies can extend that review indefinitely. The latest regulatory agenda published by the administration anticipates the publication of a proposed WOTUS rule in the Federal Register by August and a final rule by November 2019.

EPA and the Corps have not released the document sent to OMB, but given the mandate to consider using Scalia's interpretation, it is expected to define “waters” under the Clean Water Act less broadly than the Obama administration’s rule, which was issued in June 2015 and went into effect in August of that year. It was in place for just a few weeks before the Sixth Circuit Court of Appeals enjoined its implementation nationwide.

The appeals court lifted that stay in March after the Supreme Court ruled that district courts, not appeals courts, are the proper venues to hear challenges to the WOTUS rule, also known as the Clean Water Rule.

By that time, however, EPA and the Corps had already extended the effective date of the WOTUS rule into February 2020 – another decision being challenged by environmental groups and some states.

Two district courts – one in North Dakota, the other in Georgia – have issued orders enjoining implementation of WOTUS in 24 states. The states seeking the injunctions said they were concerned that if the rule suspending implementation of WOTUS until 2020 were struck down, the WOTUS rule could go into effect immediately.

In the Georgia ruling, U.S. District Judge Lisa Wood found that the WOTUS rule "allows the agencies to regulate waters that do not bear any effect on the 'chemical, physical, and biological integrity' of any navigable-in-fact water." More specifically, she said the rule "asserts jurisdiction over remote and intermittent waters without evidence that they have a nexus with any navigable-in-fact waters."

In issuing her preliminary injunction, Wood also said that the final WOTUS rule was not a "logical outgrowth" of the proposed rule and that states had demonstrated "that irreparable harm is likely and sufficiently imminent, either when the WOTUS Rule becomes effective in February 2020 and/or if the Applicability Rule is invalidated in one of the four lawsuits that becomes ripe for decision this month."

The National Wildlife Federation issued a release shortly after the agencies said they were sending their proposal to OMB. In it, NWF said, "Today’s announcement kicks off the administration’s plan to roll back Clean Water Act protections for millions of wetland acres and stream miles that have historically been safeguarded under the 1972 Clean Water Act."

Source: Agri-Pulse
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Federal Legislation
06/03/18 06:18 PM
Typically, when a bill is introduced it must first be referred to and reviewed by a Congressional Committee before it can be voted on. Each committee has jurisdiction over certain topics of legislation, but with the broad range of legislation that gets introduced, jurisdiction is not always so clear. Committee referrals can be telling of the subject matter, urgency, and likelihood of passage for a bill. GovTrack committees page briefly explains the jurisdiction of each committee.
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NEPA
06/01/18 01:03 PM
U.S. Fish and Wildlife Service Issues Guidance on Endangered Species Act Incidental Take Permits

Legal Background

The U.S. Fish and Wildlife Service issued a guidance memorandum addressing when an incidental take permit may be needed under Section 10(a)(1)(B) of the Endangered Species Act for projects that modify habitat of federally listed species. The guidance memorandum seeks to ensure that the Service operates “in a consistent manner, with clear standards,” when assessing what types of habitat modification may trigger the need for a Section 10 Permit.

The ESA prohibits the “take” of listed species, which can occur through direct harm to one or more members of the species or indirectly through modification of the species’ habitat as a result of development. The ESA defines “take” as: “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect or to attempt to engage in any such conduct.” 16 U.S.C. § 1542(b). In turn, regulations under the ESA define “harass” to mean “an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying to such an extent as to significantly disrupt normal behavior patterns which include, but are not limited to, breeding, feeding, or sheltering.” The regulations further define “harm” as an act “which actually kills or injures wildlife. Such an act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavior patterns, including breeding, feeding, or sheltering.” 50 C.F.R. § 17.3.

In 1982, Congress amended the ESA to authorize the Service to issue permits for “incidental” takes—which can occur, for example, when the otherwise lawful construction of a development project results in the death or injury of members of a listed species. To receive an incidental take permit under Section 10(a)(1)(B) of the ESA (commonly referred to as a Section 10 Permit), an applicant must design, implement and secure funding for a binding Habitat Conservation Plan (or HCP) that minimizes and mitigates harm to the impacted species during the proposed project. Historically, preparation of an HCP and obtaining a Section 10 Permit has often been an onerous, complex and very time-consuming task.

April Guidance Memorandum

Recognizing the importance of applying correct and consistent interpretations of the ESA statutory and regulatory provisions, the guidance memorandum attempts to ensure that all non-federal project proponents receive clear, uniform information about whether their actions may trigger the need for a Section 10 Permit. The guidance memorandum and an accompanying questionnaire are required to be posted on the Service headquarters website, and all Service regional and field staff must include direction to that web page when project proponents inquire about Section 10 permitting.

The guidance memorandum emphasizes that it is “vital” for Service staff to recognize that whether to apply for a Section 10 Permit “is a decision of the applicant” and admonishes that “it is not appropriate to use mandatory language (e.g., a permit is ‘required’)” in the course of staff communications with non-federal parties. Thus, while there may be significant legal risks for proceeding with a project without a Section 10 Permit if a prohibited “take” occurs, including potential civil and criminal penalties, the guidance memorandum makes clear that the risks, detriments and benefits of pursuing or foregoing a permit are ultimately up to the project applicant to determine, rather than any compulsory directive from the Service.

Further, the guidance memorandum states that the Service should avoid processing applications purely “as insurance” for potential “takes” that in fact may never occur, and sets clear boundaries for when a permit may (or may not) be appropriate. Specifically, the guidance memorandum instructs staff to advise potential applicants that a Section 10 Permit is appropriate only where a “take” is reasonably certain to occur. The guidance memorandum explains that habitat modification, standing alone, does not necessarily call for a Section 10 Permit, and instead constitutes a “take” only when it meets all the elements of the regulatory definition of “harm.”

The guidance memorandum thus poses the following three questions for assessing whether a habitat modification may trigger the need for a Section 10 Permit:

Is the modification of habitat significant?
If so, does that modification also significantly impair an essential behavior pattern of a listed species?
And, is the significant modification of the habitat, with a significant impairment of an essential behavior pattern, likely to result in the actual killing or injury of wildlife?

The guidance memorandum concludes that “[a]ll three components of the definition are necessary to meet the regulatory definition of ‘harm’ as a form of take through habitat modification … with the ‘actual killing or injury of wildlife’ as the most significant component ….” The guidance memorandum therefore appears designed to safeguard against potential regulatory overreach by Service staff in requiring and issuing Section 10 Permits.

In documenting the rationale for this approach, the guidance memorandum examines past and current regulatory definitions of “harm” and “harass,” and explains how various revisions to each of these terms inform the Service’s position. For example, because the Service ultimately “restricted” the term “harass” to include only those “acts or omissions which are done intentionally or negligently,” the guidance memorandum reasons that “harass” is not a form of take that may be permitted under Section 10, which authorizes only takes that are “incidental to, but not the purpose of, the carrying out of an otherwise lawful activity.” The regulatory definition of “harm,” by contrast, expressly includes habitat modification and, according to the Guidance Memorandum, makes the actual death or injury of a listed species the paramount concern. The guidance memorandum notes, for example, that while the term “harm” has been redefined several times, it was “always with the intention to clarify that ‘harm’ relates to activities that are likely to result in the actual death or injury to species.” Moreover, U.S. Supreme Court and U.S. Court of Appeals for the Ninth Circuit caselaw that have upheld the regulatory definition of “harm” as applied to habitat modification, have consistently concluded that every term in the definition of harm is “subservient to the phrase ‘an act which actually kills or injures wildlife.’” From this, the guidance memorandum concludes that the “law is clear”—“in order to find that habitat modification constitutes a taking of listed species … all aspects of the harm definition must be triggered,” with an actual injury to listed species of principal importance.

Conclusion

While not its stated goal, the guidance memorandum accords with other Trump administration efforts to expedite environmental review and permitting for new projects and to ensure that regulatory agencies appropriately support those efforts.

At bottom, the guidance memorandum is a clear attempt to ensure that different Service offices provide consistent treatment to prospective applicants for a Section 10 Permit. It provides the governing standard (and supporting rationale) to determine whether actions that include habitat alteration may result in the “take” of listed species, and attempts to ensure that—across all Service Regions—only those projects that meet this standard are considered for inclusion in the Section 10 Permit process. And, by reiterating that the permit process is applicant-driven, and emphasizing that habitat modification must meet a clear and relatively high standard before it may constitute a prohibited “take,” the guidance memorandum appears to show the administration’s desire to prevent the Section 10 Permit process from being used as a cudgel or threat against project proponents or being artificially expanded to include projects that do not meet the applicable regulatory requirements and definitions.

Source: Lexology
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Federal Legislation - Firearms
05/30/18 01:10 PM
H.R. 788: Target Practice and Marksmanship Training Support Act

To amend the Pittman-Robertson Wildlife Restoration Act to facilitate the establishment of additional or expanded public target ranges in certain States.

Introduced:

Feb 1, 2017
Status:

Ordered Reported on Apr 18, 2018

The committees assigned to this bill sent it to the House or Senate as a whole for consideration on April 18, 2018.

Proposed bill text is available at GovTrack
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Federal Legislation
05/21/18 11:34 AM
H.R. 857: California Off-Road Recreation and Conservation Act


To provide for conservation and enhanced recreation activities in the California Desert Conservation Area, and for other purposes.

Introduced:
Feb 3, 2017

Status:
Ordered Reported on May 16, 2018

The committees assigned to this bill sent it to the House or Senate as a whole for consideration on May 16, 2018.

Proposed bill text is available at GovTrack
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Federal Legislation
05/21/18 11:20 AM
H.R. 5727: To establish the San Rafael Swell Western Heritage and Historic Mining National Conservation Area in the State of Utah, to designate wilderness areas in the State, to provide for certain land conveyances, and for other purposes.

Introduced:
May 9, 2018

Status:
Introduced on May 9, 2018

This bill is in the first stage of the legislative process. It was introduced into Congress on May 9, 2018. It will typically be considered by committee next before it is possibly sent on to the House or Senate as a whole.

Proposed bill text is available at GovTrack
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Federal Legislation
05/21/18 11:16 AM
H.Res. 871: Expressing support for the designation of the week of June 2, 2018, through June 10, 2018, as National Fishing and Boating Week.

Introduced:
May 7, 2018

Status:
Introduced on May 7, 2018

This resolution is in the first stage of the legislative process. It was introduced into Congress on May 7, 2018. It will typically be considered by committee next before it is possibly sent on to the House or Senate as a whole.

Text of the House Resolution is available at GovTrack
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Federal Legislation
05/21/18 11:13 AM
To amend the Endangered Species Act of 1973 to prohibit the taking for a trophy of any endangered or threatened species of fish or wildlife in the United States and the importation of endangered and threatened species trophies into the United States, and for other purposes.

Introduced:
May 7, 2018

Status:
Introduced on May 7, 2018

This bill is in the first stage of the legislative process. It was introduced into Congress on May 7, 2018. It will typically be considered by committee next before it is possibly sent on to the House or Senate as a whole.

Proposed bill text is available from GovTrack
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