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August 28, 2018
On August 28, the Senate Commerce Subcommittee on Oceans, Atmosphere, Fisheries, and Coast Guard held a hearing on U.S. Harmful Algal Bloom (HAB) events and the status of the algal-bloom research, technology, and monitoring techniques. HABs are overgrown colonies of harmful algae that can debilitate and kill other organisms, ranging from fish to humans. While HABs can occur naturally, they are also linked to higher water temperature or excessive influx of nutrients that are often sourced from runoff from farmlands and lawns.
During opening remarks, senators highlighted the health, economic, and cultural impact impacts from HABs in Wisconsin, Alaska, and Florida. However, according to Chair Dan Sullivan (R-AK), almost every state in the country experiences some type of HAB, which are occurring at an increasing rate.
Last September, the Senate unanimously passed the Harmful Algal Bloom and Hypoxia Research and Control Amendments Act of 2017 (S. 1057). The bipartisan bill would direct the National Oceanic and Atmospheric Administration (NOAA) to provide grants oriented towards HAB intervention and mitigation methods and technical assistance on HAB’s to other non-federal governments. The bill would also reauthorize the national algal bloom and hypoxia program, which expires on September 30. Senators Sullivan and Bill Nelson (D-FL) urged the House to pass similar legislation introduced this July (H.R. 6645), which mandates a federal action plan to address HABs in the Everglades in addition to the actions already outlined in the Senate bill.
During questioning, Senator Ed Markey (D-MA) asked Dr. Don Anderson, Senior Scientist of the Woods Hole Oceanographic Institution, about the occurrence and severity of HABs. “The case in fresh water is crystal clear, warmth is contributing to the problem,” Dr. Anderson responded. “In the marine realm we are seeing (the impact) more as a movement of species. If it gets too warm, some species may not be able to thrive… and will move north.” Anderson also expressed concern for algal blooms that are moving into Alaska, calling it the biggest threat to Alaskan ecosystems and indigenous communities from invasive species.
Dr. Anderson also advocated for increased levels of funding for HAB research, saying that current levels fluctuate and “remain well below what is needed for dealing with HAB,” and that reauthorization of the algal bloom program would help maintain funding allocations from federal agencies. Brian Stubbs of the Cleveland Water Alliance called for more research on technological mitigation and innovation, particularly at upstream contributors like farms. “We all eat… but we need to do it smarter,” Stubbs stated. Going forward, Stubbs said that creating more affordable, real-time HAB detectors would be crucial to mitigating the impacts of HABs.
Sources: E&E News; Library of Congress; National Oceanic and Atmospheric Administration; U.S. Senate Committee on Commerce, Science, and Transportation.
August 16, 2018
On August 16, the South Carolina District Court ruled that President Donald Trump’s Executive Order 13778 to suspend the Obama Administration’s Clean Water Rule was in violation of the Administrative Procedure Act.
Finalized in 2015, the Clean Water Rule—also called the Waters of the United States or WOTUS rule—clarified the scope of federal water protected under the Clean Water Act, which prohibits the discharge of pollutants from a point source into navigable waters without a permit from the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (USACE). The 2015 WOTUS rule, defining “waters of the United States” as bodies of water that fall under U.S. federal jurisdiction, expanded the previous definition of navigable and associated waters to encompass small streams and wetlands that were perviously not included. Complex legal battles have erupted since 2015 over implementation of the WOTUS rule and resulted in ongoing uncertainty regarding the legality of enforcing the rule across the country.
Following President Trump’s executive order, the EPA and USACE finalized a rule in February 2018 delaying the applicability date of the WOTUS rule until 2020. The delay reinstated the previous definition of navigable waters protected by the Clean Water Act, while the agencies undertake a complex rulemaking process to redefine these protected water bodies.
In ruling on South Carolina Coastal Conservation League, et. al. v. Scott Pruitt, et. al., the District Court found that the rulemaking to delay the applicability date was (1) issued without providing for meaningful opportunity for public comment because the government did not solicit or consider any substantive comments on the change of regulatory definition, and (2) “arbitrary and capricious” because the agencies did not provide a reasoned analysis supporting it. The nationwide halt of the applicability date rule effectively reinstates the WOTUS rule in twenty-six states: California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, New Hampshire, New Jersey, New York, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Texas, Vermont, Virginia, and Washington.
Previous rulings by the North Dakota and Georgia District Courts have stopped implementation of the WOTUS rule in the remaining twenty-four U.S. states. The states of Texas, Louisiana, and Mississippi, and several farm industry groups have filed a motion to the District Court for the Southern District of Texas to halt the rule nationwide. In response to the South Carolina Ruling, the Department of Justice (DOJ) filed a request to the South Texas court supporting a nationwide stay saying that the injunction created a regulatory patchwork that does not serve the public interest. DOJ is also expected to appeal the ruling to the 4th U.S. Circuit Court of Appeals.
Sources: E&E News; Environmental Protection Agency; Federal Register; National Law Review.
August 1, 2018
On August 1, the Senate Committee on Commerce, Science, and Transportation amended and advanced several bills to the Senate calendar. Among these bills were the Space Frontier Act (S. 3277), the Waterfront Community Revitalization and Resiliency Act (S. 3265), and the COASTAL Implementation Act (S.2242).
The Space Frontier Act was introduced by Senator Ted Cruz (R-TX) and co-sponsored by Senators Bill Nelson (D-FL) and Edward Markey (D-MA). The bill seeks to enable commercial space activities by streamlining processes such as applications and safety approvals for a commercial space launch. Under this legislation, the National Aeronautics and Space Administration (NASA) would also create an accessible and searchable list of all NASA assets, services, and capabilities that are available for public-private partnerships.
The Waterfront Community Revitalization and Resiliency Act, introduced by Senator Tammy Baldwin (D-WI), invites waterfront communities to self-nominate themselves as “resilient waterfront communities” and create voluntary plans for improving their resiliency and vitality. To participate in the ten-year program, a waterfront community must have an eligible resilient waterfront community plan approved by the Secretary of Commerce. Plans must include consideration for economic opportunities, ecosystem challenges, sustainable infrastructure maintenance, and health and societal impacts. Under its existing authorities, the Commerce Department would provide support for the enactment of community plans and create a network of resilient waterfront communities to facilitate the sharing of best practices.
The COASTAL Implementation Act introduced by Senator Roger Wicker (R-MS) would extend the deadline for the development of the Named Storm Event Model for assessing water- and wind-related damage from coastal storms. The act would require the Administrator of the National Oceanic and Atmospheric Administration (NOAA) to establish this model by June 1, 2019, and to seek public input before the Named Storm Event Model, or any modification of to this model, may take effect. The bill also allows the Administrator to deploy additional sensors for data collection in areas determined to be at higher risk of experiencing potentially devastating storms.
Sources: Library of Congress; U.S. Senate Committee on Commerce, Science, and Transportation.