ESA Policy News: May 30, 2023

In this issue:

Congress
House Natural Resources Committee passes Save Our Sequoias Act and legislation to allow mining near the Boundary Waters Canoe Area Wilderness.

Executive Branch
White House to hold open science listening sessions.

Courts
Supreme Court decision about California’s pork regulations could impact state climate regulations.

States
Colorado River states reach water rights agreement.

International
United Nations panel questions carbon removal schemes.

Scientific Community
Scientific evidence shows that protecting and restoring wild animals and their functional roles can enhance natural carbon capture and storage.

Federal Register

Supreme Court dramatically shrinks Clean Water Act’s reach

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 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 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.

On May 25, the Supreme Court issued a ruling in the case, largely siding with the Sacketts and the Pacific Legal Foundation. The below article from PoliticoPro provides more details on the ruling.

By Annie Snider, PoliticoPro, 5/25/2023

The Supreme Court on Thursday significantly shrank the reach of federal clean water protections, dealing a major blow to President Joe Biden’s efforts to restore protections to millions of acres of wetlands and delivering a victory to multiple powerful industries.

The ruling from the court’s conservative majority vastly narrowing the federal government’s authority over marshes and bogs is a win for industries such as homebuilding and oil and gas, which must seek Clean Water Act permits to damage federally protected wetlands. Those industries have fought for decades to limit the law’s reach.

The Biden administration this year finalized a rule to cement broad protections for wetlands, which trap pollution, provide wildlife habitat, and act as sponges that soak up flood waters. That regulation must now be reworked in light of the Supreme Court ruling.

The 5-4 ruling in Sackett v. EPA creates a far narrower test than what has been used for more than half a century to determine when bogs and marshes fall under the scope of the 1972 law. Under the majority’s definition, only those wetlands with a continuous surface water connection to larger streams, lakes and rivers should get federal protections.

Justice Samuel Alito, joined by Chief Justice John Roberts and Justices Clarence Thomas, Neil Gorsuch and Amy Coney Barrett, wrote in the majority opinion that only those wetlands that are “indistinguishable” from those larger waters should be covered.

“Wetlands that are separate from traditional navigable waters cannot be considered part of those waters, even if they are located nearby,” Alito wrote.

The court’s liberals, joined by Justice Brett Kavanaugh, disagreed with that test, arguing that it cuts out a broad swath of wetlands that are important to Clean Water Act’s goal of protecting the nation’s waters.

“Put simply, the Court’s atextual test — rewriting ‘adjacent’ to mean ‘adjoining’ — will produce real-world consequences for the waters of the United States and will generate regulatory uncertainty,” Kavanaugh wrote in his concurring opinion.

The case centers on a patch of wetlands on an Idaho couple’s property. The justices agreed that their specific wetlands should not be subject to Clean Water Act regulation, and that the court’s prior test, stemming from the 2006 case Rapanos v. United States, should no longer determine the scope of the law. For this reason, Kavanaugh’s opinion and a separate opinion from the court’s liberals, are considered to be concurring opinions.

Alex Guillén contributed to this report.

Webinar Recording Available: Protecting Wetlands for Healthy Communities and Ecosystems

On May 8, ESA and Engineers and Scientists Acting Locally held a webinar to learn how science and policy intersect to protect waterways, hear from local advocates for ecologically sound practices and discuss the potential impact of the Sackett v EPA Supreme Court ruling, which had not been released at the time of the webinar. Panelist Royal Garner served as the counsel of record on the scientific societies’ amici curiae in this case.

The webinar recording is now available on YouTube.

Panelists:

Erika Harris- Senior Planner, Puget Sound Regional Council
Royal C. Gardner, JD– Professor of Law and Co-Director, Institute for Biodiversity Law and Policy, Stetson University College of Law

Federal Register Opportunities

Upcoming Public Meetings:

• BLM – Southwest District Colorado Resource Advisory Council Sheep Grazing Subcommittee Meetings (June 13)
• BLM – Public Meetings for the John Day-Snake Resource Advisory Council, Oregon (June 22-23)
• BLM – Public Meetings of the Central California Resource Advisory Council (June 14-15)
• BLM – Rocky Mountain Resource Advisory Council Meeting (June 22)
• BLM – Southwest Colorado Resource Advisory Council Public Meetings (June 14)
• BLM – Public Meeting for the Missouri Basin Resource Advisory Council (June 20-21)
• BLM – Public Meeting of the Grand Staircase-Escalante National Monument Advisory Committee, Utah (June 27)
• BLM – Northwest Resource Advisory Council Schedule of Quarterly Public Meetings, Colorado (June 22)
• BLM – Public Meeting of the Bears Ears National Monument Advisory Committee, Utah (June 22)
• BLM – Public Meeting of the Southeast Oregon Resource Advisory Council (June 26-27)
• BLM – Wild Horse and Burro Advisory Board Meeting (June 28-30)
• Bureau of Reclamation – Colorado River Basin Salinity Control Advisory Council Public Meeting (June 6)
• EPA – Great Lakes Advisory Board Meeting (May 31)
• EPA – Pesticide Program Dialogue Committee Meeting (May 31, June 1)
• EPA – White House Environmental Justice Advisory Council Public Meeting (June 13-15)
• Forest Service – Missoula Resource Advisory Committee Meeting (June 15)
• Forest Service – Flathead Resource Advisory Committee Meeting (May 31)
• Forest Service – Black Hills National Forest Advisory Board Meeting (June 14)
• Forest Service – Greater Rocky Mountain Resource Advisory Committee Meeting (June 26)
• Forest Service – Eleven Point Resource Advisory Committee (June 27)
• NASA – NASA Advisory Council Science Committee Meeting (May 31 & June 1)
• NASA – Earth Science Advisory Committee – Unidentified Aerial Phenomena Independent Study Team Meeting (May 31)
• NOAA NMFS – 31st General Advisory Committee to the U.S. Section to the Inter-American Tropical Tuna Commission and 16th Scientific Advisory Subcommittee to the General Advisory Committee; Meeting Announcement (June 15)
• NOAA NMFS – Advisory Committee Open Session on Management Strategy Evaluation for North Atlantic Swordfish (June 16)
• NOAA – Evaluation of Heeia National Estuarine Research Reserve Public Meeting (June 6, comments due June 16)
• NOAA – U.S. Integrated Ocean Observing System (IOOS®) Advisory Committee Public Meeting (June 27-29)
• NSF – Advisory Committee for Education and Human Resources Meeting (May 31 – June 1)
• NSF – Committee on Equal Opportunities in Science and Engineering Meeting (June 15-16)
• NSF – Workshop on U.S. Leadership in Software Engineering & Artificial Intelligence Engineering: Critical Needs & Priorities (June 20-21)
• NPS – Public Meetings for the Acadia National Park Advisory Commission (June 5)
• State Department – Listening Session on Modernizing the Columbia River Treaty Regime (May 31)

Opportunities for Public Comment and Nominations:

• Army Corps of Engineers – Solicitation of Applications for Stakeholder Representative Members of the Missouri River Recovery Implementation Committee. The agency must receive completed applications and endorsement letters no later than May 31, 2023.
• BOEM – Notice of Intent To Prepare an Environmental Assessment for a Wind Energy Research Lease on the Atlantic Outer Continental Shelf Offshore Maine. BOEM must receive comments no later than June 5, 2023.
• BLM – Conservation and Landscape Health. Please submit comments on this proposed rule on or before June 20, 2023.
• BLM – Notice of Intent To Amend the California Desert Conservation Area Plan Associated With the Mojave Trails National Monument Management Plan and Prepare an Associated Environmental Assessment. The BLM requests that the public submit comments concerning the scope of the analysis, potential alternatives, and identification of relevant information and studies, and ACEC nominations by June 20, 2023.
• BLM – Notice of Intent To Amend the Las Vegas Resource Management Plan and Prepare an Environmental Impact Statement for the Proposed Golden Currant Solar Project in Clark County, Nevada. The BLM requests the public submit comments concerning the scope of the analysis, potential alternatives, and identification of relevant information, and studies by June 9, 2023.
• BLM – Notice of Intent To Prepare an Environmental Impact Statement To Analyze the Potential Environmental Effects From Maintaining Secretary Jewell’s Coal Leasing Moratorium. The BLM will consider all written comments received or postmarked during the public comment period, which will close on June 15, 2023.
• BLM – Call for Nominations for the Bears Ears National Monument Advisory Committee, the San Rafael Swell Recreation Area Advisory Council, and the Utah Resource Advisory Council. All nominations must be received no later than June 21, 2023.
• EPA – Draft National Strategy to Prevent Plastic Pollution: Request for Public Comment. Comments must be received on or before June 16, 2023.
• EPA – Request for Nominations to the Good Neighbor Environmental Board.  Nominations should be submitted by May 31, 2023.
• Forest Service – Secure Rural Schools Resource Advisory Committees. Written nominations must be received by June 10, 2023.
• FWS – Endangered and Threatened Wildlife and Plants; Threatened Species Status for Black-Capped Petrel With a Section 4(d) Rule. USFWS will accept comments received or postmarked on or before June 1, 2023.
• FWS – Endangered and Threatened Wildlife and Plants; Removal of the Colorado Hookless Cactus From the Federal List of Endangered and Threatened Wildlife. The FWS will accept comments received or postmarked on or before June 12, 2023.
• FWS – Endangered and Threatened Wildlife and Plants; Threatened Status for the Bi-State Distinct Population Segment of Greater Sage-Grouse With Section 4(d) Rule and Designation of Critical Habitat. Comments must be submitted on or before June 26, 2023.
• FWS – National Wildlife Refuge System; Drain Tile Setbacks. USFWS will accept comments received or postmarked on or before June 27, 2023.
• NOAA and EPA – Coastal Nonpoint Pollution Control Program: Proposal To Find That Michigan Has Satisfied Conditions on Earlier Approval. Comments are due by June 12, 2023.
• NOAA NMFS – Notice To Reopen the Call for Nominations to the Exxon Valdez Oil Spill Public Advisory Committee. The nomination period is now open through until June 20, 2023.
• NOAA NMFS – Endangered and Threatened Species: Designation of Nonessential Experimental Populations of Chinook Salmon Upstream of Shasta Dam, Authorization for Release, and Adoption of Limited Protective Regulations Under the Endangered Species Act Sections 10(j) and 4(s). Comments on this proposed rule and EA, must be received no later than June 12, 2023.
• NOAA NMFS – Magnuson-Stevens Fishery Conservation and Management Act Provisions; Fisheries of the Northeastern United States; Amendment 23 to the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan. Comments must be received by June 14, 2023.
• NOAA  – Notice of Request for Information; U.S. Global Change Research Program (USGCRP). Comments should be submitted via https://contribute.globalchange.gov and must be received by May 31, 2023.
• NOAA  – Request for Public Comment on a Draft Standard Ocean Mapping Protocol. Comments must be received via email by 5 p.m. Eastern Time (ET) on June 2, 2023.
• NOAA – Notice of Intent To Conduct Scoping and To Prepare a Draft Environmental Impact Statement for the Proposed Designation of a National Marine Sanctuary for the Pacific Remote Islands. Comments must be received by NOAA on or before June 2, 2023.
• NOAA – Solicitation for Members of the NOAA Science Advisory Board. Nominations must be received by June 15, 2023.
• OSTP – Request for Information; National Nanotechnology Initiative Environmental, Health, and Safety Research Strategy. Interested persons and organizations are invited to submit comments on or before 5 p.m. ET June 16, 2023 (comment period extended).
• State Department – United States Ocean Acidification Action Plan Call for Public Comment. The comment period will be open for 30 days from the publication of this notice (June 16, 2023).

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.