{"id":14060,"date":"2018-05-29T14:58:32","date_gmt":"2018-05-29T18:58:32","guid":{"rendered":"https:\/\/esa.org\/esablog\/?p=14060"},"modified":"2018-05-29T14:58:32","modified_gmt":"2018-05-29T18:58:32","slug":"policy-news-may-29-2018","status":"publish","type":"post","link":"https:\/\/esa.org\/esablog\/2018\/05\/29\/policy-news-may-29-2018\/","title":{"rendered":"Policy News: May 29, 2018"},"content":{"rendered":"

ESA Policy News<\/strong><\/h1>\n

In This Issue:<\/h1>\n

Appropriations Bills Include Increased Funding for NSF, DOE and USDA, Cuts to NOAA<\/a><\/u><\/strong>
\nThe House and Senate Appropriations Committees begin to roll-out FY 2019 budget bills.<\/p>\n

Interior Actions: Migratory Bird Treaty Act Enforcement Undermined by Recent Opinion<\/a><\/u><\/strong>
\nInterior Department reinterprets the century-old Migratory Bird Treaty Act so that only intentional killing of birds is covered.<\/p>\n

USFWS Begins ESA Status Review: Species Under Scrutiny<\/a><\/u><\/strong>
\nThe U.S. Fish and Wildlife Service has initiated five-year reviews for 191 threatened and endangered species.<\/p>\n

Congress<\/u><\/a><\/strong>
\nSubcommittee approves funding for NASA\u2019s Carbon Monitoring System and legislative updates.<\/p>\n

Executive Branch<\/a><\/u><\/strong>
\nDirector of the Department of Energy Office of Science nomination, National Park Service proposes changing hunting regulations in Alaska.<\/p>\n

States<\/u><\/a><\/strong>
\nWashington State University wolf researcher resigns after complaints from the Washington State legislature, Alaska releases draft climate plan.<\/p>\n

Courts<\/u><\/a><\/strong>
\nCourt overturns USFWS\u2019s 2015 decision not to list the bi-state sage grouse.<\/p>\n

International<\/a><\/u><\/strong>
\nIndonesia considers restrictions on international researchers in the country.<\/p>\n

Scientific Community<\/a><\/u><\/strong>
\nThe American Geophysical Union rescinds award to University of Southern California seismologist.<\/p>\n

Federal Register Opportunities<\/a><\/strong>
\nUpcoming meetings and other opportunities for public involvement.<\/p>\n

Register to Vote<\/strong><\/a><\/p>\n

2018 midterm elections are happening in November.\u00a0\u00a0Register to vote and learn more about voting policies and rights in your state at Rock the Vote.<\/a><\/p>\n

ESA In the News<\/a><\/strong><\/p>\n

View an up-to-date list of ESA\u2019s media coverage<\/p>\n

ESA Correspondence to Policymakers<\/a>\u00a0<\/strong><\/p>\n

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Appropriations Bills Include Increased Funding for NSF, DOE\u00a0and\u00a0USDA, Cuts to NOAA<\/h2>\n

The House and Senate appropriations committees continue to release appropriations bills for Fiscal Year (FY) 2019. The bills generally include more funding than requested in the president\u2019s budget and many programs of interest to ESA receive budget increases. This is the beginning of the lengthy congressional appropriations process to pass the FY 2019 bills that fund the federal government from Oct. 1, 2018-Sept. 30, 2019. The appropriations bills will likely change before they pass the full House and Senate and become law, but they are important because they signal the intent of Congress.<\/p>\n

In response to the House budget bills, White House Office of Management and Budget Director Mick Mulvaney sent a series of letters to House Appropriations Chairman Rodney Frelinghuysen (R-NJ) pushing back on the committee\u2019s proposed FY 2019 spending bills. Mulvaney supported the committee\u2019s funding levels for the Agriculture and Food Research Initiative (AFRI), but he criticized funding increases for the Department of Energy\u2019s Office of Science and the National Science Foundation.<\/p>\n

EPA, Department of the Interior and the Forest Service<\/strong><\/p>\n

The House Interior Appropriations Subcommittee released its draft Interior, Environment and Related Agencies appropriations bill May 14. The Senate Appropriations Committee will release its FY 2019 appropriation bill for the Department of the Interior, the Forest Service and the Environmental Protection Agency during the week of June 11.<\/p>\n

The House bill includes $1.2 billion for the U.S. Geological Survey, $19 million more than in FY 2018. The bill includes funding for the Landsat-9 satellite program. The Bureau of Land Management receives $1.4 million, an increase of $55 million above FY 2018 levels, including $60 million for sage grouse conservation programs. The National Park Service is funded at $3.25 billion, $53 million more than in FY 2018, and the U.S. Fish and Wildlife Service\u2019s budget is kept flat at $1.6 billion.<\/p>\n

The U.S. Forest Service receives $6.1 billion, an increase of $100 million above FY 2018 levels. This budget includes $3 billion for wildland fire prevention and suppression, $297 million for Forest Sevice Research and Development \u2013 a $1 million decrease from FY 2018 \u2013 and $19.5 million in new funding to combat pests, diseases and invasive species in forests.<\/p>\n

The Environmental Protection Agency\u2019s budget is cut by $100 million to $7.958 billion. The Great Lakes Restoration Initiative also retains funding. The Trump administration has sought to eliminate this program.<\/p>\n

The House Interior Appropriations bill also contains policy riders that prohibits the U.S. Fish and Wildlife Service from listing the greater-sage grouse as a threatened or endangered species and require the agency to delist gray wolves within the continental U.S. The bill repeals the Waters of the U.S. (WOTUS) rule and prevents the Bureau of Land Management from euthanizing wild horses and burros. Appropriators also prevent the EPA from regulating the lead content of ammunition and fishing tackle.<\/p>\n

NSF, NOAA and NASA<\/strong><\/p>\n

The House Appropriations Committee also passed a $62.5 billion Commerce, Justice and Science appropriations bill. This bill covers funding for the National Science Foundation (NSF), National Oceanic Atmospheric Administration (NOAA) and NASA. NSF receives $8.175 billion in total, including $6.85 billion for research and related activities, a five percent increase over FY 2018. NSF\u2019s major research and research construction account receives a 47 percent increase, including $127 million for three new research vessels. The appropriations report notes that NSF should not allocate less than FY 2018 levels to support existing research infrastructure such as academic research vessels and observational networks.<\/p>\n

NOAA is funded at $5.2 billion, $751 million less than FY 2018 levels. However, this exceeds the amount requested for NOAA in the president\u2019s FY 2019 budget request of $4.563 billion. The majority of these cuts come from the National Environmental Satellite, Data and Information Service, which is cut by 21 percent and the Office of Marine and Aviation Operations, which receives a 46 percent cut. The National Ocean Service and the National Marine Fisheries Service are both receive one percent cut and the Office of Oceanic and Atmospheric research is cut by 8 percent. The bill cuts funding for NOAA\u2019s climate research program by 38 percent, from $158 million in FY 2018 to $99 million.<\/p>\n

NASA receives $21.5 billion, a 4 percent increase. NASA\u2019s earth science program receives $1.9 billion, a 1 percent cut.<\/p>\n

Agricultural Research<\/strong><\/p>\n

The House and Senate\u2019s U.S. Department of Agriculture appropriations bills both contain increased funding for agricultural research. In FY 2018, the Agricultural Research Service (ARS) received $1.203 billion. The House bill funds ARS at $1.395 billion and the Senate bill provides $1.301 billion. The National Institute of Food and Agriculture (NIFA) receives $1.446 billion in the House bill and $1.425 billion in the Senate bill. For comparison, NIFA received $1.407 billion in FY 2018. Both the House and Senate bills both increase funding for the Agriculture and Food Research Initiative (AFRI), which received $400 million in FY 2018. The House bill includes $415 million for AFRI and the Senate bill contains $400 million for AFRI.<\/p>\n

The Senate bill also prohibits the termination of any ARS programs or laboratories.<\/p>\n

Department of Energy<\/strong><\/p>\n

The Senate Energy and Water Appropriations Subcommittee approved its FY 2019 Energy and Water bill May 22. The bill includes $6.65 billion for the Department of Energy\u2019s Office of Science; this is $390 million more funding than in FY 2018 and roughly the same as the House Energy and Water appropriations bill. The Senate bill includes $375 million for the Advanced Research Projects Agency-Energy (ARPA-E). The Trump administration has proposed eliminating ARPA-E, and the House appropriations committee approved $325 million for ARPA-E.<\/p>\n<\/div>\n

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Interior Actions: Migratory Bird Treaty Act Enforcement Undermined by Recent Opinion<\/h2>\n

According to an opinion recently issued by the Department of Interior, which controls enforcement of the century-old Migratory Bird Treaty Act, such enforcement will now be greatly curtailed. Instead of the long-standing interpretation of strictly prohibiting the take of migratory birds, the new opinion sets a much higher threshold for liability for the killing of birds covered by the act. Historically, simple negligence was actionable. The newly issued opinion states that action under the act will only be taken when actual intent to kill the bird species is shown.<\/p>\n

The Migratory Bird Treaty Act (MBTA) was one of the first conservation laws passed in the United States. It celebrates its centennial this year and was part of the beginnings of environmental stewardship in this country. The MBTA was passed to enforce bilateral treaties \u2013 with Canada, Mexico, Japan and Russia \u2013 and the provisions have been used to reduce as well as prevent gross negligence of bird killings by individuals and companies alike.<\/p>\n

From the MBTA language, \u201c[I]t shall be unlawful to hunt, take, capture, kill \u2026 by any means whatever \u2026 at any time or in any manner, any migratory bird\u2026 into a conclusion that the killing of migratory birds violates the act only when \u201cthe actor [is] engaged in an activity the object of which was to render an animal subject to human control.\u201d<\/p>\n

However, Interior\u2019s latest opinion greatly undermines the basic goals of the MBTA. As reported by The Washington Post, \u201c[T]he Interior Department said, \u201cthe take [killing] of birds resulting from an activity is not prohibited by the Migratory Bird Treaty Act when the underlying purpose of that activity is not to take birds.\u201d For example, the guidance said, a person who destroys a structure such as a barn knowing that it is full of baby owls in nests is not liable for killing them. \u201cAll that is relevant is that the landowner undertook an action that did not have the killing of barn owls as its purpose,\u201d the opinion said.\u201d Said another way, a person must now specifically intend to kill the animals; they will not be held liable for \u201cincidental take.\u201d<\/p>\n

Declining to enforce for incidental take will be very beneficial to corporations, most notably energy companies. Industrial accidents such as the Deepwater Horizon oil spill in the Gulf of Mexico, which harmed more than 82,000 birds, would not face prosecution under the MBTA. Additionally, the MBTA will no longer incentivize industries to work to mitigate preventable bird deaths. As outlined by the Audubon Society, \u201c[O]ver 70 million birds are killed each year by industrial activities and structures, including power lines, communication towers, and improperly sited wind turbines. Uncovered oil field waste pits, where confused birds land thinking the glossy surface is water and are poisoned or drowned in a slow, viscous death, are accountable for the deaths of 500,000 to 1 million birds each year alone.\u201d Without the weight of potential liability, corporations will have little motivation to mitigate the dangers created by their activities.<\/p>\n

Although Interior\u2019s new opinion does not change the law per se (only legislative action can bring that about), it could significantly change how the law is enforced. An April 4 letter from the 10 Democratic members of the Senate Environment and Public Works Committee to Interior Secretary Ryan Zinke, argues for continued enforcement of incidental take, stating, \u201cEliminating agency authority to address incidental take under the MBTA risks reversing the significant progress the nation has made in recovering and maintaining bird populations, ties the hands of the department\u2019s wildlife professionals, and undermines our international obligations.\u201d<\/p>\n

On May 24,\u00a0a coalition of national environmental groups, including American Bird Conservancy, Center for Biological Diversity, Defenders of Wildlife, National Audubon Society, National Wildlife Federation, and the Natural Resources Defense Council, filed litigation,\u00a0National Audubon Society v. Department of the Interior<\/em>, in the Southern District of New York challenging the current administration\u2019s move to eliminate longstanding protections for waterfowl, raptors, and\u00a0songbirds\u00a0under the Migratory Bird Treaty Act (MBTA).<\/p>\n

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USFWS Begins ESA Status Review: Species Under Scrutiny<\/h2>\n

Recently the United States Federal Wildlife Service (USFWS) announced it will begin five-year status reviews of 191 listed species.\u00a0Every five years of listing, the USFWS assesses the status of species protected by the Endangered Species Act (ESA) to determine if delisting is warranted.<\/p>\n

By law, assessments of the deciding factors are made using the best available science.\u00a0To delist a species, USFWS is required to determine that threats have been eliminated or controlled, based on several factors including: population sizes and trends and the stability of habitat quality and quantity; extent of disease or predation, if the species is subject to overutilization, and control or elimination of threats through existing regulatory mechanisms (usually at the state level).\u00a0The Service can make four possible recommendations after completing an assessment. It can reclassify a species from threatened to endangered; reclassify a species from endangered to threatened; remove the species from the list or maintain the species\u2019 current classification.<\/p>\n

The species under review cross the globe, from Guam to Florida.\u00a0Species include the Mariana fruit bat (Pteropus mariannus mariannus<\/em>), the Bermuda petrel (Pterodroma cahow<\/em>), and the Eastern indigo snake (Drymarchon corais couperi<\/em>).<\/p>\n

The review notice, with a list of all considered species, has been published in the Federal Register. Comments on any of the species being reviewed can be submitted via the addresses listed on the Federal Register website, and should be submitted by July 6, 2018.<\/p>\n

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Congress<\/h2>\n

NASA\u2019s Carbon Monitoring System:<\/strong>\u00a0The House Commerce, Justice and Science Appropriations Subcommittee\u00a0approved<\/a>\u00a0an amendment to the subcommittee\u2019s 2019 spending bill that directs NASA to spend $10 million on a \u201cclimate monitoring system\u201d studying\u00a0\u201cbiogeochemical processes to better understand the major factors driving short and\u00a0long-term\u00a0climate change.\u201d The Trump\u00a0canceled<\/a>\u00a0the Carbon Monitoring Systems, a program doing very similar work, earlier in May 2018.<\/p>\n

Office of Technology Assessment:<\/strong>\u00a0A clause in the House appropriations bill for congressional operations directs the Congressional Research Service to assess the need for a separate entity within the legislative branch \u201ccharged with the mission of providing nonpartisan advice on issues of science and technology.\u201d This direction comes after the appropriations committee received\u00a0requests<\/a>\u00a0from members of Congress led by Rep. Bill Foster (D-IL) and CEO of the American Association for the Advancement of Science Rush Holt to revive the Office of Technology Assessment (OTA). Until it was defunded in 1995, OTA advised members of Congress on science and technology issues and produced reports for them.<\/p>\n

Farm Bill:<\/strong>\u00a0The House Farm Bill was defeated (198-213) on May 18. The House Freedom Caucus sank the bill and no Democrats voted for it. House Republicans are trying to salvage the bill, which could be back for a vote around June 22. The Forestry Title of the House bill includes a number of new categorical exclusions and other authorities that are designed to increase logging in national forests. Additionally, the House voted on Rep. Don Young\u2019s (R-AK) amendment to the bill to exempt Alaska\u2019s national forests from the Roadless Rule May 17. The amendment passed by a razor thin margin of 208-207. Two Democrats \u2013 Rep. Collin Peterson (D-MN) and Rep. Marcy Kaptur (D-OH) \u2013 voted for the amendment and 23 Republicans voted against it. The Senate Agriculture Committee is expected to mark up its version of the legislation on June 6, and floor consideration could be soon thereafter. It\u2019s unclear whether the Senate\u2019s bill will include federal forest management provisions similar to those in the House bill. Sen. Murkowski will likely offer an amendment that mirrors Rep. Young\u2019s to exempt Alaska\u2019s national forests from the Roadless Rule \u2013 it will require 60 votes to pass. With this timetable, Congress could have two farm bill versions ready for a conference committee in July.<\/p>\n

Lacey Act:\u00a0<\/strong>The House Natural Resources Committee, Subcommittee on Water, Power and Oceans held a\u00a0hearing<\/a>\u00a0on the Lacey Act, the law that allows the federal government to restrict the trade of plants and wildlife to prevent the spread of invasive species. Subcommittee Chairman Doug Lamborn (R-CO) and a representative of the aquaculture industry argued that current version of Lacey Act makes transporting live fish over state lines overly difficult and has resulted in aquaculture farmers facing felony charges. Committee Democrats argued that the law should remain largely the same.<\/p>\n

Carbon Capture:<\/strong>\u00a0The Senate Environment and Public Works Committeepassed<\/a>\u00a0the Utilizing Significant Emissions with Innovative Technologies Act (USE IT Act,\u00a0S. 2602<\/a>\u00a0) May 22. This bill directs the EPA to support carbon utilization and air capture research and requires the White House Council on Environmental Quality to develop guidance on CO2 pipelines. Environment and Public Works Ranking Member Tom Carper (D-DE) and Sen. Tammy Duckworth (D-IL) became sponsors of the bill after the bill was amended to add environmental protections and public comment periods on CEQ\u2019s guidance on CO2 pipelines.<\/p>\n

Department of Energy Bills:<\/strong> The House Science, Space and Technology Committee passed three bills related to the Department of Energy\u2019s science programs. Committee Chairman Lamar Smith (R-TX) and ranking member Eddie Bernice Johnson (D-TX) supported all of the bills.\u00a0The Department of Energy Science Act and Innovation Act of 2018 (H.R. 5905<\/a>) authorizes the Office of Science\u2019s activities for FY 2018 and 2019 and allows the Biological and Environmental Research program to model climate change impacts.\u00a0The ARPA-E Act of 2018 (H.R. 5906<\/a>) expands ARPA-E\u2019s mission to cover cleanup of nuclear waste sites and requires projects to seek private sector funding before receiving ARPA-E funding.\u00a0The\u00a0National Innovation Modernization by Laboratory Empowerment Act\u00a0(NIMBLE Act,\u00a0H.R. 5907<\/a>) gives directors of national\u00a0laboratories\u00a0the authority to agreements to approve public-private partnerships of less than one million dollars.<\/p>\n

Other legislative updates of interest:<\/p>\n