October 22, 2018

The U.S. Department of Interior (Interior) implemented a new policy that echoes the ‘secret science’ administrative rule proposed by the U.S. Environmental Protection Agency (EPA), dubbed the “Strengthening Transparency in Regulatory Science” rule. It would restrict what scientific findings could be used to make regulations. The Ecological Society of America reported on the EPA’s proposed rule in the Oct. 10, 2018 Policy News. Oct. 16, the White House Office of Management and Budget released the administration’s regulatory agenda, which puts the “transparency rule” on the EPA’s back burner with an expected final rule on hold until 2020.

In tandem to the proposed EPA rule, legislative action mirroring the policy continues. The House passed its version of the measure, H.R. 1530, in March 29, 2017, and the Senate version, S. 1794, is now under consideration. In Oct. Rush Holt, CEO of AAAS, testified about the bill in a hearing held by the Senate Environment and Public Works Subcommittee on Superfund, Waste Management and Regulatory Oversight. Holt stated the following: 

“To put it bluntly, the initiative you consider today is not about sound science. It is about reducing regulations[.]… The effect of the rule would be a significant reduction in good, relevant science that could be used by the Environmental Protection Agency and the change would likely result in harm to people and their environment.”

Interior’s version of the policy direction of the above bills and the EPA proposed rule, the “Promoting Open Science” order, was issued by Interior Deputy Secretary David Bernhardt Sept. 28. This order states:

“Any decision that is based on scientific conclusions that are not supported by publicly available raw data, analysis or methodology, have not been peer-reviewed, or are not readily reproducible should include an explanation of why such science is the best available information.”

Although Interior’s exception of allowing “an explanation of why such science is the best available information” is not a part of the EPA rule, the overall effect of Interior’s order will mirror EPA’s: The requirement “that Bureaus and Offices should utilize and prioritize publicly available, reproducible, peer-reviewed science to the extent possible.”

As reported by E&E News, the order could make it harder for the U.S. Fish and Wildlife Service and other Interior agencies to use certain research. It also will set new data disclosure requirements for recipients of Interior funding. E&E elaborates on one troubling issue to the policy: that in some cases, such as the precise location of Native American sacred spaces, Interior traditionally seeks to maintain confidentiality. This order could undermine such confidentiality.

Environmental and scientific groups are critical of the order. Requiring that scientific data be publicly available means that some high-quality data are prohibited from use in federal government research. Specific issues of uncertainty regarding the order (and the EPA rule before it) include, among others: How traditionally confidential information on endangered species would be handled; and how information gathered during natural disasters in real time be considered after the fact.

The Union of Concerned Scientists (UCS) pointed out the following:

Raw data may include confidential information such as private addresses and locations of sacred spaces and cultural resources or even the locations of the last remaining individuals of an endangered species. A colleague said, “It’s like telling poachers where the last rhinos are living,” an astute analogy. Allowing such data to be publicly available could put individuals, species, and culturally or religiously important sites at risk.

As for real-time information gained from disasters, requiring the science be ‘reproducible’ is problematic. In fact, this directive could cause significant issues for the U.S. Geological Survey (USGS), which is part of Interior. The mission of USGS, among other directives, includes the monitoring, assessing, and conducting targeted research on a wide range of natural hazards such as wildland fires, earthquakes, hurricanes, landslides and volcanoes. These types of disasters, and the resulting scientific findings, cannot – by their nature – be reproduced.

The administration’s continued push of this policy, both in the executive branch and the legislative branch, is troubling. Unlike EPA’s policy, Interior’s order is not subject to a public commenting period. It took effect immediately Sept. 28.

The White House released its “Fall 2018 Unified Agenda of Regulatory and Deregulatory Actions” Oct. 16. This document is a sprawling preview of the regulatory changes that agencies anticipate making in the coming months and years.

Some items in the agenda show that agencies plan to finalize rules proposed earlier in 2018. One example is that the EPA hopes to finalize its Affordable Clean Energy rule, which replaces the Obama administration’s Clean Power Plan in March 2019. The U.S. Fish and Wildlife Service (USFWS) will finalize proposed changes to the Endangered Species Act regulations in Nov. 2018. The White House Council on Environmental Quality will continue its effort to rewrite National Environmental Policy Act regulations and plans to release a proposed rule in Feb. 2019.

Agencies also plan to release new proposed rules on controversial topics. USFWS plans to propose a rule to determine if the lesser prairie chicken should be listed under the Endangered Species Act (ESA), and it will release a new rule on the ESA status of the gray wolf. The agency will also designate a “nonessential experimental population” of grizzly bears, paving the way for the reintroduction of grizzly bears in the North Cascades in Washington. This past spring, Interior Secretary Ryan Zinke expressed his support for the plan.

Another example of an item of interest is the agenda reveals that the USFWS is hoping to move forward by March 2019 with a rule listing certain salamander species as an injurious species under the Lacey Act to prevent the spread of the deadly the fungal disease Batrachochytrium salamandrivorans (B. sal). USFWS first proposed the rule change in Jan. 2016.

The Environmental Protection Agency (EPA) continues to shift its scientific advisers. In the recent weeks, it released a list of potential candidates for its lead Science Advisory Board, eliminated two science advisory panels and announced five new members of a seven-member advisory group.

There is a list of 174 candidates for the EPA’s Science Advisory Board, the lead group that advises the agency on scientific matters. The list includes a few ESA members along with experts in other relevant disciplines as well as several individuals with ties to the Heartland Institute, a think tank that questions mainstream climate science. The agency is accepting public comments on the nominees through Nov. 7, 2018. The EPA also released lists of candidates for two committees of the Science Advisory board – the Agricultural Science Committee and the Drinking Water Committee.

The EPA disbanded its Particulate Matter Review Panel and its Ozone Review Panel. These scientific advisory groups were charged with advising the EPA’s Clean Air Scientific Advisory Committee (CASAC) about air quality standards for particulate matter and ground-level ozone.

New members of the CASAC were announced Oct. 10. that includes three state and local air pollution regulators: Sabine Lange of the Texas Commission on Environmental Quality, Steven Packham of the Utah Department of Environmental Quality and Cory Masuca of the Jefferson County, AL Department of Health. The other new members are Mark Frampton, professor emeritus at the University of Rochester Medical Center and Tim Lewis, a research ecologist at the Army Corps of Engineers. The agency declined to renew the terms of three academic scientists who served on the committee.

State Wildlife Management Hearing: The Senate Environment and Public Works Committee held a hearing on state agencies’ role in wildlife management and conservation Oct. 10. John Kennedy, the deputy director of the Wyoming Game and Fish Department, touted his agency’s role in sage-grouse conservation and the black-footed ferret’s recovery. Similarly, Mike McCormick of the Mississippi Farm Bureau shared success stories from efforts to conserve the American alligator, the Louisiana black bear and the wild turkey. Ranking Member Tom Carper (D-DE) praised state governments’ role in the recovery of the Delmarva fox squirrel – which was removed from the endangered species list in 2015 – but stressed the importance of the Endangered Species Act in the success of its recovery.

Legislative updates:

• Both houses of Congress passed the America’s Water Infrastructure Act of 2018 (S. 3021). This bill sets water infrastructure policy for the next 10 years and authorizes $6 billion in spending. It also includes authorization for ecological restoration projects and the Army Corps of Engineers’ aquatic invasive species research program. The bill now goes to the president’s desk for his signature.
• President Trump signed the Save Our Seas Act (S. 3508) in a ceremony at the White House with Sen. Dan Sullivan (R-AK), Sen. Sheldon Whitehouse (D-RI), Commerce Secretary Wilbur Ross and acting NOAA Administrator Timothy Gallaudet. This bill authorizes NOAA’s Marine Debris Program through 2022 and allows the NOAA administrator to declare a marine debris emergency.

Forest Service Chief: Vicki Christiansen was sworn in Oct. 11 as the chief of the U.S. Forest Service. Christiansen had served as acting chief since March 2018 when former Chief Tony Tooke resigned. Previously, Christiansen served as the agency’s deputy chief for state and private forestry and as a state forester in Arizona and Washington.

Interior Department: Records Retention and Release: The Interior Department is planning a ‘massive’ change to its internal requirements for how long its agencies will retain program documents – ranging from endangered species management documents to oil and gas leases to timber sales. Under the proposed changes, for example, the U.S. Fish and Wildlife Service (USFWS) would destroy documents about endangered species recovery plans after three years. In this case, the National Achieves would keep the endangered species records because it found them to have “high research value.” The government oversight website AltGov2 has posted the full documents online. The Federal Register published the notice (DAA-0048-2015-0003) and is accepting public comments.  

In a similar vein, The Guardian obtained an internal USFWS document that instructs staff to not release documents about internal deliberations about Endangered Species Act listing determinations – for example, slides from presentations or meeting notes – when responding the Freedom of Information Act requests.

Interior Department: New Deputy Solicitor for Fish, Wildlife and Parks:Karen Budd-Falen was appointed as the Interior Department’s deputy solicitor for fish, wildlife and parks – serving as the top legal counsel to the Interior Department on issues relevant to the National Park Service and the U.S. Fish and Wildlife Service. Budd-Falen is a Wyoming-based property rights lawyer who frequently represented ranchers involved in legal disputes with public lands agencies.

National Science Foundation: Midscale Infrastructure: The National Science Board (NSB) released a report about the agency’s funding of midscale research infrastructure. The NSB was prompted to issue the report in response to concerns from the research community and Congress that the National Science Foundation (NSF) did not offer a funding path for midscale research infrastructure. The report validates the concerns of the community. It recommends that NSF sustain long-term funding for midscale infrastructure. Funding for midscale infrastructure is currently one of NSF’s “10 Big Ideas.”

Department of Homeland Security: To allow the construction of a wall along the U.S.-Mexico border in parts of Hidalgo County, TX., the Department of Homeland Security is waiving the requirements of environmental laws, including the National Environmental Policy Act and the Endangered Species Act. This waiver applies to 18 miles of border in the Rio Grande Valley, including 2.4 miles of land in the Santa Ana National Wildlife Refuge. The administration previously waived environmental requirements for areas along the border in California and New Mexico. Conservation groups are fighting the waivers in court.

Youth Climate Lawsuit: The Supreme Court intervened to halt the Juliana v. United States lawsuit Oct. 19. The plaintiffs, represented by Our Children’s Trust have until Wed., Oct. 24 to file a response with the Supreme Court. In 2015, twenty-one youth sued the U.S. government for insufficiently addressing climate change and infringing on their right to a safe climate. The trial was scheduled to begin Oct. 29, 2018.  This is the second time that the Justice Department has appealed to the Supreme Court in this case – in July, the Supreme Court declined to halt the case.

Science in Every State: In anticipation of the upcoming midterm election, Popular Science has compiled a list of the most important science-related policy issue facing each state – from opioid abuse to forest management.

Florida: The Florida Fish and Wildlife Commission announced that between May 19, 2018, and Labor Day, commercial and recreational anglers removed over 28,000 invasive lionfish from the state’s waters.  

Former ESA President David Lodge Pens Washington Post Op-Ed: The 2016-2017 ESA President David M. Lodge published an opinion piece in The Washington Post, arguing that climate change and resulting natural disasters like Hurricanes Florence and Michael, will exacerbate economic inequality. Lodge urges Congress to reform Federal Emergency Management Agency’s flood insurance program so that the program’s coverage better reflects current scientific knowledge of flood zones and the realities of climate change. These reforms would ultimately reduce climate-related suffering.

USGS Hiring for Directors of Climate Adaption Science Centers: The USGS is hiring senior scientists to direct five of its eight regional its Climate Adaption Science Centers. Until 2018, these centers were known as the Climate Science Centers. The centers work to help Interior agencies understand the effects of climate change on natural and cultural resources. It’s unclear how Interior Secretary Ryan Zinke’s skeptical views on climate change will affect these positions or why the previous directors left these positions. The positions are open on USAJobs until Oct. 23.

Public Meetings, many of which are live-streamed: 

• BLM – Meeting of the North Slope Science Initiative-Science Technical Advisory Panel (AK) (Oct. 23)
• BLM/USFS – Public Meeting – Withdrawal Application for Methow Valley (Okanagan National Forest, WA) (Nov. 13, comments due Nov. 13)
• BLM – Southeast Oregon Resource Advisory Council Meeting (Nov. 16)
• Bureau of Reclamation – Colorado River Basin Salinity Control Advisory Council Meeting (Oct. 29 & 30, 2018)
• DOE – Biological and Environmental Research Advisory Committee Meeting (Oct. 18 & 19)
• EPA – Public Listening Session; Stakeholder Input on Peak Flows Management (Meeting Oct. 24 in Lenexa, KS and online meeting Oct. 30)
• EPA – Meeting of the Pesticide Program Dialogue Committee (Oct. 31 & Nov. 1)
• EPA – Board of Scientific Counselors Air and Energy Subcommittee Meeting (Nov. 13)
• NASA – Meeting of the Science Committee, NASA Advisory Council (Nov. 1- 2)
• NOAA NESDIS – Advisory Committee on Commercial Remote Sensing Meeting (Oct. 18)
• NOAA NMFS – Pacific Fishery Management Council Ad Hoc Climate Scenarios Investigation Committee Webinar (Oct. 23)
• NOAA NMFS – Pacific Fishery Management Council Ad Hoc Ecosystem Workgroup Webinar (Oct. 25)
• NOAA NMFS – Pacific Fishery Management Council Meeting (Nov. 1-8)
• NOAA NMFS – Marine Fisheries Advisory Committee Meeting (Nov. 6-8)
• NOAA – Science Advisory Board (Nov. 1 & 2)
• NOAA OAR – National Integrated Drought Information System Executive Council Meeting (Nov. 1)
• NPS – Wekiva River System Advisory Management Committee (Nov. 7)
• NSF – Meeting of the Advisory Committee for Education and Human Resources (Oct. 18-19)
• NSF – Committee on Equal Opportunities in Science and Engineering(Oct. 19)
• NSF – Advisory Committee for Environmental Research and Education Meeting (Oct. 24)
• NSF – Advisory Committee for Polar Programs (Nov. 1) 

Opportunities for Public Comment and Nominations:

• BLM – 2018 Second Call for Nominations for Resource Advisory Councils. Nominations are due Oct. 31, 2018.
• BLM – Notice of Availability of the Draft Resource Management Plan and Draft Environmental Impact Statement for the BLM Carlsbad Field Office, New Mexico. Comments due Nov. 6, 2018.
• BLM – Notice of Availability of the Draft Bears Ears National Monument Indian Creek and Shash Jaa Units Monument Management Plans. Comments due Nov. 15, 2018.
• BLM – Notice of Availability of the Draft Environmental Impact Statement and Draft Land Use Plan Amendment to the California Desert Conservation Area Plan for the Desert Quartzite Solar Project. Comments due Nov. 8, 2018.
• Centers for Disease Control and Prevention – Solicitation of Nominations for Appointment to the Board of Scientific Counselors, Office of Infectious Diseases. Expert nominations for membership must be received by Oct. 31, 2018.
• Department of the Interior – Changes to the Natural Resource Damages for Hazardous Substances Assessment Regulations. Comments accepted through Oct. 26, 2018.
• Department of the Interior – Deepwater Horizon Oil Spill Draft Restoration Plan 1 and Environmental Assessment; Open Ocean Trustee Implementation Group. Comments are due Oct. 26, 2018.
• Department of the Interior – Nominations for the Royalty Policy Committee. Nominations due Nov. 2, 2018.
• Department of the Interior – Deepwater Horizon Oil Spill Draft Restoration Plan 1 and Environmental Assessment; Open Ocean Trustee Implementation Group. Public comments on the restoration plan and environmental assessment are due Nov. 9, 2018.
• EPA – Data Solicitation in Support of Revising Total Maximum Daily Loads for Debris, Floatables and Trash in the Anacostia River Watershed. Data due Oct. 23, 2018.
• EPA – Request for Nominations for the 2019 Clean Air Excellence Awards Program. Nominations are due by Nov. 2, 2018.
• EPA – Federal Insecticide, Fungicide, and Rodenticide Act Scientific Advisory Panel Meeting and request for nominations of Ad Hoc Expert Members. Nominations due Nov. 16, 2018.
•  National Archives and Records Administration (NARA) – Records Schedules; Availability and Request for Comments.
• National Institute of Food and Agriculture – Stakeholder Listening Opportunity for Priorities in Research, Education and Extension. Online comments are due Nov. 30, 2018.
• NOAA – Solicitation for Members of the NOAA Science Advisory Board. Nominations should be emailed to vog.aaonnull@srebmemwen.bas.aaon by Nov. 16, 2018.
• NOAA NMFS – Notice of Intent To Prepare an Environmental Impact Statement for the U.S. Purse Seine Fishery in the Western and Central Pacific Ocean. Comments due Oct. 31, 2018.
• NOAA NMFS – Nominations for the Atlantic Highly Migratory Species Southeast Data, Assessment and Review Workshops Advisory Panel. Nominations due Oct. 26, 2018.
• NOAA NMFS – Pacific Island Fisheries; Reclassifying Management Unit Species to Ecosystem Component Species. Comments due Oct. 29, 2018.
• NOAA NMFS – Call for nominations for the Atlantic Highly Migratory Species Advisory Panel. Nominations are due Nov. 8, 2018.
• NOAA NMFS – Fisheries of the Northeastern United States; Industry-Funded Monitoring. Comments are due Nov. 19, 2018.
• NOAA NMFS – Positive 90-Day Finding on a Petition To List the Cauliflower Coral (Pocillopora Meandrina). Information and comments are due Nov. 19, 2018.
• NPS – Hunting and Trapping in National Preserves in Alaska. Comments are due by Nov. 6, 2018.
• State Department – Notice of Availability of the Draft Supplemental Environmental Impact Statement for the Proposed Keystone XL Pipeline Mainline Alternative Route in Nebraska & Public Meeting Announcement. Comments on the draft SEIS are due Nov. 8, 2018.
• USFS and USFWS – Subsistence Management Regulations for Public Lands in Alaska- Cook Inlet Area Regulations. The Southcentral Federal Subsistence Regional Advisory Council will hold a public meeting Oct. 29-30, 2018 and comments are due Oct. 31, 2018.
• USFWS – Reclassifying the Golden Conure From Endangered to Threatened With a Section 4(d) Rule. Comments due Nov. 5, 2018.
• USFWS – Amendment to the 1997 Washington State Department of Natural Resources State Lands Habitat Conservation Plan. Comments due Nov. 6, 2018.

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